Opinion
54639C-2005.
Decided May 12, 2006.
Defendant is charged with Criminal Trespass in the Second Degree (Penal Law § 140.15), Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), Unlawful Trespass in the Third Degree (Penal Law § 140.10(e)) and Unlawful Possession of a Knife (Administrative Code § 10-133(b)).
Defendant moves to suppress statements and physical evidence.
On February 3, 2006 and February 6, 2006, I conducted a Huntley/Mapp/Dunaway hearing. Having reconsidered the facts and the law, I now withdraw the decision I issued from the bench and substitute this opinion in its place.
The People called two witnesses: Police Officer James Bionda and Sergeant Ian Rule. Officer Bionda, who is assigned to the 50th precinct in the Bronx, has worked for the NYPD for about a year. His testimony was muddled, inconsistent and not credible. I do credit, however, the testimony of Sgt. Rule.
For the last three years, Sgt. Ian Rule has worked for the Bronx 50th precinct Field Training Unit. On the night of October 20, 2005 and the early morning of October 21, 2005, Rule was working the 5:00 p.m. to 2:00 a.m. shift. He was assigned to "vertical patrol" duty in the Marble Hill public housing development, where there is a high incidence of narcotics trafficking. In a vertical patrol, officers start at the top of a building and go down, verifying whether the people they encounter are residents of the building or their invited guests.
At about 1:00 a.m., Rule and Officers Bionda and Smith were dropped off in the parking lot behind 125 West 228th Street. The back of that building faces another building in the Marble Hill complex. Between the buildings lies a courtyard and the parking lot. The rear exit of 125 West 228th Street opens onto the courtyard. There is no buzzer system on that door.
A sign located in the lobby, beyond the buzzer system, states "No Trespassing" and perhaps other language.
As the officers approached the building, at a distance of about 50 feet away, the sergeant saw defendant walking out the rear exit. Defendant appeared to look in Rule's direction, then turn toward the right. The sergeant called to defendant, saying "sir, can you stop for a minute please," or words to that effect. Defendant hesitated for a moment, then stopped. Rule had to call out two or three times before defendant stopped. The sergeant did not have to run toward defendant or draw his gun.
Rule asked defendant for his name and address. The sergeant also inquired as to defendant's purpose in the building. Defendant identified himself and stated that he lived at another address within the Marble Hill development. Defendant said that he was at 125 West 228th Street to visit a friend in apartment 10J. Rule believes that he asked for the name of the friend, but is not 100 percent sure. The sergeant then noticed something that he found odd: defendant was wearing several pairs of pants and several shirts. In Rule's experience, people often conceal weapons or other contraband inside several layers of clothing. The sergeant then called the precinct to run defendant's name for warrants and learned that defendant was on probation for a narcotics conviction. Rule asked defendant a couple of questions, including whether he had any problems answering summonses or missing court dates. Defendant said no.
Because of the bulkiness and multiple layers of defendant's clothing, the sergeant instructed Bionda to pat down defendant to check for weapons. Bionda recovered a folding knife over four inches long. The officers handcuffed defendant and brought him to the front of the building. Rule called for a marked police van to come to 125 West 228th Street to hold defendant. The sergeant directed that the officers stay with defendant while Rule and another officer went to apartment 10J to verify whether defendant visited someone there. The sergeant knocked on apartment 10J's door, but nobody answered. Rule returned to the front of the building and, at approximately 1:15 a.m., placed defendant under arrest.
The sergeant and the other officers drove defendant to the precinct for arrest processing, including filling out paperwork, taking fingerprints, obtaining pedigree information and a strip search. During the strip search, Officer Grogan recovered crack cocaine from defendant's innermost layer of clothing.
Defendant moves to suppress the statements, the knife and the drugs, on the ground that there was no justification for the police to approach, question, stop, detain, frisk, arrest and strip search defendant.
In People v. DeBour, 40 NY2d 210 (1976), the Court of Appeals set forth the guidelines for evaluating police contact with civilians. Before an officer may request information from an individual, he must have an "objective, credible reason" to approach. DeBour, 40 NY2d at 223. "The common-law right of inquiry, a wholly separate level of contact is activated by a founded suspicion that criminal activity is afoot and permits a greater intrusion." People v. Hollman, 79 NY2d 181, 184, quoting Debour, 40 NY2d at 223 (internal quotations omitted). In order to stop and detain a person, an officer must have "reasonable suspicion that such person has committed, is committing or is about to commit a crime." People v. Grant, 164 AD2d 170, 172 (1st Dept. 1990) (other citations omitted). Assuming this predicate is met, if the officer reasonably suspects that he is in danger of physical injury, he has the right to frisk an individual for weapons. Criminal Procedure Law § 140.50(3); People v. Russ, 61 NY2d 693 (1984).
The conduct that caught Sgt. Rule's attention consisted of defendant exiting a Housing Authority building, located in a "known, drug area," at 1:00 a.m., looking toward police and walking away. This unremarkable behavior did not suffice to give the officers an objective, credible reason to approach defendant. All of defendant's actions were "susceptible of an innocent interpretation." See People v. Powell, 246 AD2d 366, 369.
This is not a case where defendant was observed waiting outside a building for two minutes without a key, walked in as someone was exiting, then upon sight of police officers, turned to leave so abruptly that he dropped his ice cream cone ( People v. Mercado, 294 AD2d 132 [1st Dept. 2002]), or where defendant, when exiting a ground floor apartment, looked at the officers, started walking up the staircase, then abruptly changed direction ( People v. Crawford, 279 AD2d 267 [1st Dept. 2001]).
This case is similar to People v. Holland, NYLJ, May 2, 1997, at 31, col. 4 (Sup Ct, New York County, Figueroa, J.), which concerns a building where the landlord had executed an affidavit listing the tenants and authorizing the police to search the premises for trespassers. In Holland, officers had just arrived to begin their vertical patrol. As they approached, defendant was exiting the building. Two officers confronted defendant, asking him if he lived there. Defendant replied that he did not. When the officers next asked what he was doing in the building, defendant stated that he was visiting a friend. When the officers inquired about the friend's name and apartment number, defendant failed to respond. The officers then posed what the court described as "accusatory" questions. The court held that there was no objective credible reason to approach and that defendant's conduct did not "escalate the level of intrusiveness to the level of a common law right to inquire." Holland, NYLJ, May 2, 1997, at 31.
Here, as in Holland, the officers had no legal basis to approach and request information from defendant. The prosecution, therefore, is barred from using the statements at trial.
Even if I were to hold that the initial approach and request for information were lawful, neither defendant's responses to Rule's questions nor his attire could support "a founded suspicion that criminal activity was afoot." Debour, 40 NY2d at 223. Therefore, the continued questioning and defendant's subsequent detention while Rule visited apartment 10J were unlawful.
In addition, sporting the "layered look" does not arouse a reasonable suspicion that a person is armed and dangerous. There was no evidence that the officers observed a waistband bulge or any other telltale sign of a weapon. People v. Celaj, 306 AD2d 71 (1st Dept. 2003). Nor did defendant fail to answer Rule's questions, make threatening gestures ( People v. Alston, 23 AD3d 487 [2nd Dept. 2005]) or furtive movements ( People v. Hensen, 21 AD3d 172 [1st Dept. 2005]).
Because the knife and the crack cocaine flowed directly from the illegal stop and seizure, they constitute "fruit of the poisonous tree." Wong Sun v. United States, 371 US 471 (1963).
Accordingly, defendant's motion is granted; the statements and physical evidence are suppressed.
This constitutes the decision and order of the court.