Opinion
D-2206/11.
Decided on June 22, 2011.
New York City Office of the Corporation Counsel by Abbey Marzick, for Petitioner.
Legal Aid Society by Melanie Shapiro, for Respondent.
Presently before the Court is the Respondent's motion to suppress physical evidence obtained as a result of alleged illegal police conduct. Based on the Notice of Motion (1), the Affirmation in Opposition (2), the Answering Affirmation (3), and the Dunaway/Mapp hearing which was held on June 1, 2011 (4), the Court grants the motion to suppress the evidence.
On February 12, 2011, at approximately 10:20 a.m., uniformed Officers Stephen Hillmann and Michael Whiteman were riding in a marked police vehicle, traveling at 15 mph, in the vicinity of 1990 Lexington Avenue, between 122nd and 123rd Streets. The officers were on a special assignment to patrol the area, which is known to have high levels of violent crime, gang activity and weapons possession, on the basis that police presence would likely effectuate crime reduction. Officer Whiteman testified to this Court that there had been two shooting incidents in the area in the two weeks prior. Officer Whiteman also testified that he has five years of experience as a police officer in the 25th precinct and has been with the special anti-crime unit for six months.
Respondent Abdullah Yoda was walking alone in the same vicinity, wearing a blue, puffy, heavy, winter jacket and a black ski mask that covered the Respondent's entire head except for his eyes. Officer Whiteman stated that he first noticed the Respondent because of his ski mask, which Officer Whiteman thought was peculiar attire for an unusually warm February day. The Court takes judicial notice that on February 12, 2011, the temperature was 33 degrees at 9:51 a.m. and 36 degrees at 10:51 a.m. Officer Whiteman testified that the Respondent, upon making eye contact with Officer Whiteman, simultaneously reversed direction (did an "about face") and put his right hand in his right jacket pocket and began walking in the opposite direction, away from the police vehicle. No bulge was visible on the Respondent's clothing. Officer Whiteman got out of the vehicle first with Officer Hillmann following him after parking the car. Officer Whiteman testified that he got the Respondent's attention, although he was unsure of the exact words he used, and the Respondent stopped walking. Officer Whiteman asked the Respondent if he had any weapons. The Respondent froze and did not say anything. Officer Whiteman then ordered the Respondent to take his right hand out of his jacket pocket, with which the Respondent complied, and then proceeded to pat down the Respondent's right pocket. Officer Whiteman grabbed what felt like a three-inch long, hard object and he believed the outline was consistent with a folding knife, although he testified that it also could have been consistent with other objects. Officer Whiteman reached into the Respondent's pocket and took out the object, which was a gravity knife. He then frisked the Respondent further, but did not find any additional weapon.
The Respondent was charged with committing an act which, if committed by an adult, would constitute Criminal Possession of a Weapon in the Fourth Degree, and Unlawful Possession of Weapons by Persons Under Sixteen. The Respondent was paroled on this matter.
The Respondent contends that the stop and frisk were illegal and violated the Respondent's Fourth and Fourteenth Amendment rights. The Respondent, therefore, has moved to suppress any tangible property and any and all evidence pertaining to such property. A Dunaway/Mapp hearing was held on June 1, 2011, to determine the admissibility of the seized evidence.
I.
Level of Scrutiny
Under the binding authority of the New York Court of Appeals case People v De Bour ( 40 NY2d 210, 220, 386 NYS2d 375, 382), crime prevention (as opposed to responding to a reported crime) is subject to "the greatest scrutiny" because it is the most susceptible to infringements on individuals' rights. The standard of "greatest scrutiny" established in De Bour should be applied in this case ( id. at 220, 382). The officers in this case were on a special assignment of crime prevention because of recent violence in the area. Therefore, the officers' encounter with the Respondent is subject to a high level of scrutiny.
Predicates for Police Action
The proper method of analyzing the permissibility of an encounter between the police and an individual on the street is to examine the predicate for the police action ( see People v Stewart, 41 NY2d 65, 66, 390 NYS2d 870, 871). The rule is that "[T]he proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual" ( id. at 66, 871). In Stewart, the court held that a bulge in a pocket did not give sufficient cause to frisk where the officers had only a general description of a man with a gun ( id. at 69, 873). The court held that "Before a police officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so" ( id. [citations omitted]). As in Stewart, the predicate for the police action in this case must be the determinative factor in analyzing the police encounter.
The Presentment Agency argues that the Respondent wearing a ski mask and walking away with his hand in his pocket after making eye contact with a police officer in a known high-crime area is sufficient cause for the subsequent inquiry and stop and frisk.
Greater Suspicion
The New York Court of Appeals in People v Hollman ( 79 NY2d 181, 184-85, 581 NYS2d 619, 620-621 [citations omitted]), articulated the level of suspicion needed for police encounters when it held that:
"In People v De Bour we set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. 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 somewhat greater intrusion.' Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized."
Therefore, in New York, a common law, or level two, inquiry requires more facts giving rise to a greater suspicion compared to a mere request for information.
II.
Walking Away from Police
The Presentment Agency contends that the Respondent's act of walking away from the officers was one of the significant factors that justified the officers' actions. The First Department Appellate Division has held that looking startled and walking away from the police is "innocuous behavior [which] will not generate a founded or reasonable suspicion that a crime is at hand" ( see People v Campbell, 160 AD2d 363, 364, 554 NYS2d 103, 104 [1st Dept 1990]). In Campbell, the court found that the suspect walking away from the officers did not create the requisite suspicion required to ask the suspect to stop. The Campbell court held that at the time of the police inquiry, there must be a "founded suspicion that criminal activity is present" ( id. at 364, 104 [citations omitted]). Just like the suspect in Campbell, the Respondent walked away from the police, and as in that case, walking away did not justify an inquiry involving a potentially incriminating question. In Campbell, the officers impermissibly asked if a bag belonged to the suspect, and, upon her failure to respond, opened the bag and found a gun. In the instant case, the officer asked whether the suspect had a weapon. Under Campbell, the inquiry in this case was impermissible where the fact purportedly justifying the inquiry was that the suspect walked away from the police. The officers lacked the requisite suspicion to inquire whether the Respondent had a weapon because an individual walking away from the police is not suspicious behavior justifying an inquiry about property the individual may be carrying.
The proposition that walking away from the police does not escalate the permissible level of intrusion is further supported by the First Department Appellate Division precedent People v Howard ( 147 AD2d 177, 180, 542 NYS2d 536, 539 [1st Dept 1989]), in which the court held that "The fact that the defendant walked away when he saw the patrol car approach, did not provide a basis for any greater level of intrusion." In that case, the court held that any intrusion above a request for information (a category of question that does not include questions which could make the individual questioned think he was a suspect) was impermissible ( id.). Therefore, walking away from officers, as the Respondent did, does not permit them to query about whether the suspect has a weapon. Even in a high crime neighborhood, walking away from officers does not permit an inquiry about the presence of a weapon. Under Appellate Division First Department precedent, in a location known for crime, looking nervous and walking away upon seeing plainclothes officers is "innocuous behavior" that "at best, gave the officers the right to keep the defendant under observation or to approach and request information" ( People v Soto, 194 AD2d 371, 373, 599 NYS2d 538, 539 [1st Dept 1993]). The court held in Soto that "while this neighborhood is known for drug activity, this factor alone was insufficient to justify the excessive police behavior" ( id. [citations omitted]). In the instant case, Officer Whiteman stated on the record that there had been two shootings in the neighborhood in the preceding two weeks. Under Soto, the nature of the neighborhood does not change that walking away from officers is innocuous behavior.
Hands in Pocket
The Presentment Agency argues that a suspect with his hand in his pocket in a high crime area further justifies the officers' treatment of the Respondent. However, a suspect with his hands in his pockets in a high crime area is protected against "the common law right of inquiry" without further indication that criminal activity is taking place. Under the First Department Appellate Division case People v Wilson ( 201 AD2d 399, 400, 607 NYS2d 663 [1st Dept 1994]), asking a suspect to take his hands out of his pockets requires "[A] founded suspicion that criminality is afoot." The court in that case held that such a request was impermissible because it rose to the level of "the common law right of inquiry," requiring "founded suspicion" ( id.). As in Wilson, the officers in the case at bar began a common law inquiry when they asked whether the Respondent had a weapon when he had a hand in his pocket in a high crime area. The inquiry was therefore impermissible under Wilson without further cause for suspicion.
Slightly Abnormal Behavior
It is the Presentment Agency's contention that a suspect with his hands in his pockets and with abnormal behavior given the weather legitimately induces suspicion in the officers that he may be armed. However, "our courts have held that the mere placement of one's hand in one's pocket does not create a suspicion that an individual is armed" ( People v Santiago, 64 AD2d 355, 361, 409 NYS2d 716, 720 [1st Dept 1978] [citations omitted]). In Santiago, the suspect had his hand in his pocket when approached by police and did not remove his hand when ordered to do so ( id. at 358, 718). The court in Santiago held that a hand in a pocket does not generate a "founded suspicion that a crime was at hand" ( id. at 360, 719). As in that case, the Respondent put his hand in his pocket after seeing police officers, and just like in that case there was no "founded suspicion that a crime was at hand," the predicate necessary for a level two inquiry ( id.). As in Santiago, where the suspect appeared to the police officer to be casing a liquor store, remaining outside in rainy weather in the 30s (in which case the court took judicial notice of the weather), and where the suspect entered a phone booth and put his hand in his pocket, the Respondent wore a ski mask in 33 to 36 degree weather and put his hand in his pocket. The Respondent's actions were "consistent with innocent behavior" ( id.). Therefore, under Santiago, the query about a weapon and subsequent frisk were impermissible when the cause for suspicion was purportedly that the suspect wore a ski mask in 33 to 36 degree weather in February and put his hand in his pocket because there was no "founded suspicion that a crime was at hand" ( id.).
Founded Suspicion
The Appellate Division First Department has "expressly identified an inquiry about weapons . . . as a common-law inquiry requiring founded suspicion" ( People v Garcia, 2011 NY Slip Op 3306, *3-4 [1st Dept, Apr. 26, 2011] [citations omitted]). As in Garcia, where a query about the presence of a weapon was deemed impermissible because of the lack of required suspicion, here too the officers lacked the necessary suspicion to ask the Respondent if he had a weapon.
The defining characteristic of a level two inquiry is that it focuses on the possible criminality of the individual with whom the officers are speaking. The New York Court of Appeals held in Hollman ( 79 NY2d at 191-192, 581 NYS2d at 625) that:
"Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot."
In the case at bar, a query about whether the Respondent had a weapon required "founded suspicion" under the rule from Hollman and its companion case People v Saunders ( 79 NY2d 181, 194, 581 NYS2d 619, 627 [holding the request to search a suspect's bag impermissible because of a lack of the founded suspicion required]; see also People v Hanson, 195 AD2d 408, 410, 600 NYS2d 698, 700-701 [1st Dept 1993] [holding that a level two inquiry had taken place when an officer asked an individual whether anyone had asked the individual to carry a bag onto the bus that the officer believed belonged to the individual]). Because an inquiry about weapons is a "level two" a.k.a. "common-law" inquiry, it requires "founded suspicion."
Apparent Nervousness
In the Appellate Division First Department, apparent nervousness does not rise to the level of suspicion required for a level two inquiry. In People v Owens ( 206 AD2d 303, 304, 615 NYS2d 1 [1st Dept 1994]), the court held that the apparent nervousness of a suspect does not provide sufficient cause to ask to search the suspect's bag, and that, therefore, the detective violated the suspect's Fourth Amendment rights "when he went beyond merely requesting information." In that case involving a level two inquiry (there, the request to search a bag), the suspect acted nervously after making eye contact with a detective ( id.). In the instant case, the Respondent walked away from the officers and put his hand in his pocket after making eye contact with at least one of the officers. Therefore, even if putting his hand in his pocket and walking away from the officers were to be interpreted as nervous behavior, under Owens, such nervous behavior does not allow for a level two inquiry.
Apparent nervousness of a suspect does not allow officers to ask questions that could be incriminating. In Saunders ( 79 NY2d at 192, 581 NYS2d at 625), the New York Court of Appeals held that officers may not ask "intrusive, potentially incriminating questions unless they have founded suspicion criminality is afoot." The court in that case held that while the suspect hesitating upon eye contact and appearing nervous was sufficient for the officer to approach to request information, it was not sufficient cause for the detective to ask to search the defendant's bag ( id. at 194, 626). In this case, the Respondent walked away from the officers and put his hand in his pocket after making eye contact with them. If this were to be interpreted as nervous behavior, it nevertheless would not permit a level two inquiry under the New York Court of Appeals precedent of Saunders, which held that appearing nervous after making eye contact with an officer does not permit an inquiry involving potentially incriminating questions.
For the foregoing reasons, the officers lacked the requisite level of suspicion to ask the Respondent whether he had a weapon when he was walking down the street in a high crime area with his hand in his pocket and wearing a ski mask on a February morning.
Totality of the Circumstances
The Presentment Agency contends that, even if each individual factor on its own fails to rise to the level of suspicion required for an inquiry and a stop and frisk, the totality of the circumstances rises to the necessary level of suspicion. The Court disagrees. Even when considering the totality of the circumstances, the officers did not have sufficient suspicion to conduct a common law, level two inquiry. In the analogous Santiago case ( 64 AD2d at 360, 409 NYS2d at 719), where the court considered the totality of the circumstances, the Appellate Division First Department held that the officers lacked the requisite level of suspicion. In that case, where the court took judicial notice of the weather and where the suspect was standing outside a liquor store on a cold, rainy day, and where the suspect walked into a phone booth and put his hand in his pocket, the Appellate Division First Department held that multiple innocuous behaviors did not rise to the level of required suspicion ( id. at 360). In considering the entirety of his conduct, the Santiago court held that "Santiago's conduct could not generate a founded suspicion that a crime was at hand" ( id.). The court's reasoning was that "Not only was each of his earlier acts consistent with innocent behavior, but we find the entire sequence was devoid of any element of objective evidence to justify the officer's suspicions" ( id. at 360-61). The same applies in the case at hand. The combination of wearing a ski mask in February, walking away from officers, and putting one's hand in one's pocket after seeing officers does not rise to the level of suspicion required for a common law inquiry because each of these acts is consistent with innocent behavior and the sequence of acts when taken together is innocent as well, as in Santiago.
III.
As the police lacked the requisite founded suspicion for asking the Respondent if he had a weapon, rendering the common-law inquiry impermissible, the subsequent frisk of the Respondent leading to the discovery of the gravity knife, which required a higher suspicion level, was also impermissible. When the police patted down the Respondent's jacket pocket, they conducted a stop and frisk, restraining the Respondent's freedom to move ( see People v Chestnut, 69 AD2d 41, 48, 418 NYS2d 390, 393 [1st Dept 1979]). In Baker v McCollan ( 443 US 137, 142[citations omitted]), the Supreme Court held in dicta that "By virtue of its incorporation' into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty." Additionally, in Terry v Ohio ( 392 US 1, 27), the Supreme Court held that the Fourth Amendment governs a stop and a frisk, which fall within the categories of a seizure and a search, respectively, but that there is "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." It has been further established that a frisk requires a reasonable suspicion that the individual will be or is involved in criminal activity and a reasonable fear for the officers' safety ( see People v Allen, 109 AD2d 24, 32, 489 NYS2d 749, 755 [1st Dept 1985] [holding that the police did not have reasonable suspicion of criminal activity to justify the search]). In Santiago ( 64 AD2d at 359, 409 NYS2d at 719), the court: "authoriz[ed] a forcible stop and detention of a person when a police officer entertains a reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. As a corollary to the statutory right to detain, an officer also has the statutory authority to frisk if he reasonably suspects himself to be physically endangered."
In other words, a frisk requires a higher degree of suspicion — the reasonable suspicion necessary for a level-three stop — than the founded suspicion required for a level two, common law inquiry. Without the required factors, therefore, a frisk is unjustified and violates an individual's Fourth and Fourteenth Amendments rights. As they did not meet the lower degree of founded suspicion necessary to inquire about a weapon, the officers here clearly lacked the higher level of reasonable suspicion required for a stop and frisk, rendering the frisk unjustified, and violated the Respondent's constitutional rights.
Additionally, nothing in the Respondent's actions following the improper inquiry could have elevated the officers' level of suspicion to that of reasonable suspicion. In People v Madera ( 189 AD2d 462, 467-468, 596 NYS2d 766, 770 [1st Dept 1993]), the court held that "[a]lthough an officer is entitled to inquire, he is not in our system of justice entitled to a response and may not pursue or seize a person simply because a response to his inquiry has not been forthcoming" ( see People v Samuels, 50 NY2d 1035, 1037, 431 NYS2d 694, 695 [ruling that the defendant's failure to respond by itself would not have permitted further action by the police]). Instead, there must be other additional factors subsequent to the inquiry that would raise the level to reasonable suspicion ( see Madera, 189 AD2d at 468, 596 NYS2d at 771; People v Moore , 6 NY3d 496 , 500, 814 NYS2d 567, 2006 NY Slip Op 1249, *4 [Feb. 21, 2006] [ruling that the police must have additional information or observations of suspicious conduct sufficient to provide reasonable suspicion in order to elevate the right to inquire to the right to forcibly stop]). Here, although the Respondent did not answer the officers' improper question as to whether the Respondent had a weapon, he had a right not to answer and his failure to respond did not alone elevate the level of suspicion. Besides his failure to respond, there were no additional factors that raised the level to the requisite reasonable suspicion before the officers frisked the Respondent. In the cases where the police were justified in conducting a stop and frisk, the suspects had not complied with the order to take their hands out of their pockets, increasing the officers' suspicion and giving them reasonable concern for their safety ( see People v Oppedisano, 176 AD2d 667, 575 NYS2d 319 [1st Dept 1991]; People v Samuels, 68 AD2d 663, 418 NYS2d 607 [1st Dept 1979], affd 50 NY2d 1035, 431 NYS2d 694). Even in Santiago ( 64 AD2d at 361, 409 NYS2d at 720), where the suspect also did not comply when ordered to take his hand out of his pocket, the court held that the noncompliance did not incite reasonable fear in the officers for their safety and therefore the seizure and frisk were unjustified. Here, however, the Respondent immediately complied with the officer's order by taking his hand out of his pocket. Furthermore, the Respondent did not attempt to run away or make other suspicious or furtive movements that would potentially raise the level of suspicion or incite in the officers a reasonable fear for their safety. Therefore, as there was neither an elevation of the level of suspicion following the weapon inquiry nor grounds for reasonable fear for the officers' physical safety, the officers were not justified in conducting the frisk.
Evidence obtained by impermissible police action must be suppressed. The New York Court of Appeals held in People v Gethers ( 86 NY2d 159, 161-62, 630 NYS2d 281, 282-283 [internal citations and quotation marks omitted])that "[W]hen the police have acted illegally, evidence which has been come at by exploitation of that illegality should be suppressed." As in Gethers, where the police obtained an identification of a suspect as a result of an illegal seizure, the police in the instant case impermissibly inquired about a weapon and impermissibly frisked the Respondent. Therefore the gravity knife they seized from his pocket should be suppressed. As in Gethers, the impermissibility of the police encounter allows for the suppression of the evidence obtained in that encounter.
Accordingly, the Respondent's motion to suppress evidence of the gravity knife and any and all evidence pertaining to it is granted. This shall constitute the order of the Court.