Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Daniel J. BURNETT, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that Supreme Court erred in denying his motion to suppress physical evidence, i.e., a handgun, and his subsequent oral statements to the police because the police lacked reasonable suspicion to justify the search of his person. We agree.
According to the evidence presented at the suppression hearing, two police officers on routine patrol in the City of Buffalo received a 911 dispatch at approximately 5:45 p.m. that an unidentified caller reported that a man wearing blue jeans and a blue hoodie had displayed a gun to a woman on Brinkman Street. About 10 minutes later, the officers observed a man dressed in blue jeans and a blue hoodie walking down a street that is a little over a mile away from the Brinkman Street address . According to one of the officers, the man, later identified as defendant, was “staring” at their marked police vehicle. The officers drove up next to defendant and requested identification. Defendant retrieved his identification from the pocket of his jeans and handed it to the officers. The officers returned defendant's identification, and he began to walk away. The police followed defendant in the patrol vehicle and again pulled up next to him. Defendant's left hand was in the left pocket of his pants. One of the officers exited the patrol car, grabbed defendant's left hand inside of his jeans pocket, and felt what he believed to be a handgun. After several unsuccessful attempts to retrieve the object from defendant's pocket, defendant yelled “the gun's in my pajama pants.” Defendant was wearing pajama pants underneath his jeans. The officer removed the gun from the pocket of defendant's pajama pants and placed him under arrest.
It is well established that, in evaluating the legality of police conduct, we “must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98, lv. denied92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448, citing People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562). In De Bour, the Court of Appeals “set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; [and] level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime” (People v. Moore, 6 N.Y.3d 496, 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141).
Here, contrary to defendant's contention, we conclude that the information provided in the 911 dispatch coupled with the officers' observations provided the police with “an objective, credible reason for initially approaching defendant and requesting information from him” (People v. Hill, 302 A.D.2d 958, 959, 755 N.Y.S.2d 169, lv. denied100 N.Y.2d 539, 763 N.Y.S.2d 4, 793 N.E.2d 418; see People v. Crisler, 81 A.D.3d 1308, 1309, 916 N.Y.S.2d 387, lv. denied17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096). The officers pulled up next to defendant and, without exiting the vehicle, asked to see defendant's identification and asked defendant where he was going and where he was coming from, which was a permissible level one intrusion ( see People v. McIntosh, 96 N.Y.2d 521, 525, 730 N.Y.S.2d 265, 755 N.E.2d 329; People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. Rodriguez, 82 A.D.3d 1614, 1615, 919 N.Y.S.2d 636, lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103).
Contrary to the further contention of defendant, we conclude that his failure to answer the officers' questions about where he was going and where he was coming from, when added to the information acquired from the police dispatch and defendant's heightened interest in the patrol car, created a “founded suspicion that criminality [was] afoot,” justifying a level two intrusion (Hollman, 79 N.Y.2d at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204; see Moore, 6 N.Y.3d at 500, 814 N.Y.S.2d 567, 847 N.E.2d 1141; People v. Glover, 87 A.D.3d 1384, 1384, 930 N.Y.S.2d 342, lv. denied19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210; People v. Robinson, 278 A.D.2d 808, 808–809, 718 N.Y.S.2d 524, lv. denied96 N.Y.2d 787, 725 N.Y.S.2d 651, 749 N.E.2d 220). The common-law right of inquiry “authorized the police to ask questions of defendant— and to follow defendant while attempting to engage him—but not to seize him in order to do so” (Moore, 6 N.Y.3d at 500, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [emphasis added] ). The police therefore acted lawfully in following defendant for the purpose of obtaining an answer to their valid questions about his whereabouts. The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant's hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” (People v. Benjamin, 51 N.Y.2d 267, 270, 434 N.Y.S.2d 144, 414 N.E.2d 645). “ ‘[W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that the officers are in physical danger and that defendant poses a threat to their safety’ ” (People v. Stevenson, 273 A.D.2d 826, 827, 709 N.Y.S.2d 753; see Robinson, 278 A.D.2d at 808, 718 N.Y.S.2d 524; see generally People v. Lopez, 71 A.D.3d 1518, 1519, 896 N.Y.S.2d 701, lv. denied15 N.Y.3d 753, 906 N.Y.S.2d 825, 933 N.E.2d 224). Here, the People do not contend that the police had reasonable suspicion that defendant had committed or was about to commit a crime at the time of the frisk, and we agree with defendant that reasonable suspicion did not exist ( see People v. Holmes, 81 N.Y.2d 1056, 1057–1058, 601 N.Y.S.2d 459, 619 N.E.2d 396). Rather, the sole justification proffered for the officer's conduct was that he feared for his safety ( see People v. Salaman, 71 N.Y.2d 869, 870, 527 N.Y.S.2d 750, 522 N.E.2d 1048). We thus must determine “whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger” (Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889). In making that determination, we must give “due weight ..., not to [the officer's] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience” ( id.; see People v. Batista, 88 N.Y.2d 650, 653–654, 649 N.Y.S.2d 356, 672 N.E.2d 581; People v. Russ, 61 N.Y.2d 693, 695, 472 N.Y.S.2d 601, 460 N.E.2d 1086). The fact that defendant's hand was in his pocket does not, standing alone, “provid [e] a reasonable basis for suspecting that [defendant] [was] armed and may [have been] dangerous” (Russ, 61 N.Y.2d at 695, 472 N.Y.S.2d 601, 460 N.E.2d 1086; see People v. Santiago, 64 A.D.2d 355, 361, 409 N.Y.S.2d 716; see also People v. Gray, 154 A.D.2d 301, 303, 546 N.Y.S.2d 844). A jeans pocket, unlike a waistband or even a jacket pocket, is not “a common sanctuary for weapons” (People v. Canady, 261 A.D.2d 631, 632, 690 N.Y.S.2d 702, lv. dismissed93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098, reconsideration denied93 N.Y.2d 1015, 697 N.Y.S.2d 574, 719 N.E.2d 935; see Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396; De Bour, 40 N.Y.2d at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562). Moreover, unlike in other cases where we have sanctioned a frisk for weapons, there was no evidence in this case that defendant refused to comply with the officers' directives or that he made any furtive, suspicious, or threatening movements ( see e.g. People v. Carter, 109 A.D.3d 1188, 1189, 971 N.Y.S.2d 722, lv. denied22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975; People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612, lv. denied20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921, cert. denied ––– U.S. ––––, 134 S.Ct. 262, 187 L.Ed.2d 191; Glover, 87 A.D.3d at 1384–1385, 930 N.Y.S.2d 342; cf. People v. Sims, 106 A.D.3d 1473, 1474, 964 N.Y.S.2d 380, appeal dismissed22 N.Y.3d 992, 979 N.Y.S.2d 557, 2 N.E.3d 925). Indeed, under the circumstances of this case, the presence of defendant's hand in his left pants pocket was particularly innocuous and “ ‘readily susceptible of an innocent interpretation’ ” (People v. Riddick, 70 A.D.3d 1421, 1422, 894 N.Y.S.2d 260, lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571; see People v. Brannon, 16 N.Y.3d 596, 602, 925 N.Y.S.2d 393, 949 N.E.2d 484). Defendant retrieved his identification from his left pants pocket and returned it to that pocket after complying with the officers' request to produce identification ( cf. Sims, 106 A.D.3d at 1473–1474, 964 N.Y.S.2d 380).
We therefore conclude that, “[b]ecause the officer lacked reasonable suspicion that defendant was committing a crime and had no reasonable basis to suspect that he was in danger of physical injury, ... the ensuing pat frisk of defendant was unlawful” (People v. Mobley, 120 A.D.3d 916, 918, 991 N.Y.S.2d 193; see Stevenson, 273 A.D.2d at 827, 709 N.Y.S.2d 753; Canady, 261 A.D.2d at 632, 690 N.Y.S.2d 702). We therefore reverse the judgment, vacate the plea, grant those parts of defendant's omnibus motion seeking to suppress the handgun seized from his person and his subsequent oral statements to the police, dismiss the indictment, and remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, those parts of the omnibus motion seeking to suppress physical evidence and statements are granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.