Opinion
No. 3618/12.
2013-05-3
The PEOPLE of the State of New York v. Edward CARTER, Defendant.
The Defendant in this matter was represented by Messrs. Gregory Smith, Esq. and Bernard Mason, Esq. The People were represented by Messrs. Jonathan Rebold, Esq. and Eugene Hurley, Esq.
The Defendant in this matter was represented by Messrs. Gregory Smith, Esq. and Bernard Mason, Esq. The People were represented by Messrs. Jonathan Rebold, Esq. and Eugene Hurley, Esq.
DANIEL P. CONVISER, J.
The Defendant is charged with two counts of Criminal Possession of a Weapon in the Second Degree. A hearing was conducted before the Court to determine whether the arrest of the Defendant was supported by probable cause and whether property attributable to the Defendant, specifically, a gun, a plastic bag, a black t-shirt, a cellular phone and a Metrocard were lawfully recovered by the police. The People called three witnesses: Lieutenant Steve D'Errico, Police Officer Julio Hernandez and Detective Donna Torres. The Court finds the testimony of each of the witnesses to be credible. The Defendant called no witnesses. The People did not present any evidence at the hearing regarding the seizure of the Defendant's alleged Metrocard and cell phone. The motion to suppress those items is therefore granted. Defendant's suppression motion is otherwise denied in all respects.
STATEMENT OF FACTS
Testimony of Lt. D'Errico
Lieutenant Steve D'Errico, a 27–year employee of the NYPD, testified that he was on uniformed duty by himself on August 4, 2012 driving an unmarked police vehicle on 102nd Street east of Amsterdam Avenue in New York County at approximately 11:30–11:40 P.M. when he received a radio communication that an individual had been shot at 1305 Amsterdam Avenue. That location is part of the General Ulysses S. Grant public housing development (hereinafter, the “Grant Houses”). Radio communications indicated that several young males of either black or Hispanic ethnicity were observed fleeing southbound in the direction of Morningside Park. The transmissions were being made by police officers in the field including members of the Viper Unit (which conducts video surveillance at the Grant Houses). Lieutenant. D'Errico acknowledged that many black people live at the Grant Houses.
At the time he started to receive radio communications Lieutenant D'Errico was parked adjacent to an unmarked police vehicle occupied by police officers Hernandez and Dayle. He directed them to respond to the location of the shooting to conduct a canvass for suspects. He proceeded to turn onto Amsterdam Avenue from 102nd Street and drive northbound. At an unspecified point Lieutenant D'Errico said he received a radio communication that suspects were fleeing from Morningside Park by way of the stairs.
Lieutenant D'Errico said he was familiar with the area in upper New York County where the Grant Houses are located. He said the development was in an area bounded by Broadway and Morningside Avenues and 123rd and 125th Streets. He noted that Amsterdam Avenue dissected the Grant Houses and that Morningside Park was located just south and slightly to the east of the housing development. He further stated that Morningside Drive, running along the west side of Morningside Park, was accessible from the park via several footpaths and staircases and that Amsterdam Ave. was the next street over to the west of Morningside Drive.
Lieutenant D'Errico said he proceeded to drive north on Amsterdam Avenue because he thought he was more likely to encounter suspects who were fleeing the scene of the shooting by doing so. Between 11:35 and 11:40 P.M. he observed the Defendant, a young black male, walking “quickly” in the company of another young black male southbound on the east side of Amsterdam Avenue just south of 113th Street. He said he believed the “brisk” pace at which the subjects were walking was consistent with someone who might be fleeing the scene of a shooting. This other individual was manipulating a white t-shirt that he was wearing from its bottom. Lt. D'Errico stated that based on his experience he believed that the conduct that the unidentified male was engaging in, specifically grasping the bottom of the shirt at the front and lifting it, was consistent with someone trying to change his appearance by either taking off or putting on the t-shirt. He said that this behavior could be engaged in by someone who had just been involved in a shooting.
The Defendant was wearing a black shirt. No other individuals fitting the description of the suspects were observed in the area. He testified that based on the physical characteristics of the area, it would have been possible for the two subjects to have gone into the park from the Grant Houses and then ascended to the street level they were at by climbing staircases in the park. He also said he believed that the distance away from the shooting where he encountered the subjects was a reasonable one with respect to how far away from the shooting location the subjects were at the time.
Lieutenant D'Errico backed his vehicle up, stopped and then exited to approach the two individuals. As he was walking towards them he testified that he then saw the Defendant carrying an opaque plastic shopping bag in his right hand. He said the bag contained a hard object which was heavy. He testified that the outline of the object was visible and that it had a “squarish” shape. The outline he saw had a straight line at the bottom and was consistent with what could have been a gun. He testified that he had been involved in a couple of arrests involving guns in plastic shopping bags. He called out to them stating “Police, stop”. The Defendant and the other male looked in the direction of Lieutenant D'Errico, but proceeded to continue walking. Lieutenant D'Errico called out to them in a louder voice to stop and they finally complied. The lighting conditions were characterized by Lieutenant D'Errico as “pretty good”.
The record, in the Court's view, is clear that Lieutenant D'Errico saw the Defendant carrying a bag with a hard, heavy object in it prior to initially stopping the Defendant and his companion. The record is not completely clear about whether Lieutenant D'Errico noticed that the object in the bag had a “squarish” shape before he initially stopped the Defendant or after that initial stop and before the frisk of the Defendant and his bag. The Court believes the record can most fairly be interpreted as recounting that Lieutenant D'Errico's perception of the “squarish” shape of the object came only after he initially directed the Defendant to stop.
After the two individuals stopped, opposite the entrance to 112th Street near the Cathedral of St. John the Divine at approximately 11:45 P.M., they were instructed to walk towards Lieutenant D'Errico. He, in turn, walked towards them. As the two suspects approached Lieutenant D'Errico he observed that both individuals were sweating profusely. He said the plastic bag which the Defendant was holding was from the H & M clothing store. Viewing the bag to be weighed down by a hard object, being the only police officer present at that time and knowing that a gun was reported as recently having been used, he said he was concerned for his personal safety. Lieutenant D'Errico also told the subjects to show their hands and in response the two individuals lifted their hands up.
In addition to the plastic bag, the Defendant was also holding a dark colored t-shirt. Lieutenant D'Errico then proceeded to conduct a pat-down frisk of the male wearing the white t-shirt in that individual's waist area and pockets. He never went into the individual's pockets. After frisking the unidentified male, Lieutenant D'Errico turned his attention to the Defendant. When he conducted a frisk of the plastic bag the Defendant was holding he immediately felt that the heavy object in the bag was a gun.
He grabbed the Defendant in his waist area and verbally commanded him to get on the ground. Lieutenant D'Errico went to the ground with the Defendant and the other male proceeded to flee southbound on Amsterdam Ave. As Lieutenant D'Errico and the Defendant went to the ground the Defendant dropped the t-shirt he had been holding in his left hand. While holding the bag with the gun in his left hand, Lieutenant D'Errico said that he clumsily handcuffed the Defendant with his other hand. At no time during the encounter did Lieutenant D'Errico draw his gun. He seized the t-shirt.
The Defendant was then taken to Lieutenant D'Errico's vehicle. He broadcast a description of the suspect who had fled. In response to his call for assistance Police Officers Hernandez and Doyle arrived at the location. Once Officer Hernandez had control of the Defendant, Lieutenant D'Errico looked inside the shopping bag and saw a gun. The gun and the t-shirt were given to Officer Hernandez. A videotape of the Defendant and his companion walking southbound on Amsterdam Avenue and 117th Street prior to the Defendant's apprehension was introduced and played during the hearing. Testimony of Officer Hernandez
Police Officer Julio Hernandez, an 8–year employee of the NYPD was on uniformed patrol duty with his partner Officer Doyle in an unmarked police vehicle on August 4, 2012 in the vicinity of the Frederick Douglass public housing development (hereinafter, the “Douglass Houses”), close to the intersection of 102nd Street and Amsterdam Avenue in New York County. At approximately 11:30 P.M. he was engaged in conversation with his supervisor, Lieutenant D'Errico, who was in a separate vehicle.
He received a radio communication that a male had been shot at the Grant Houses at 1305 Amsterdam Avenue. After approximately a couple of minutes a further communication was received which verified that an individual had in fact been shot. Officer Hernandez proceeded to drive towards the area of the shooting by driving northbound on Amsterdam Avenue, then making a right hand turn onto 110th Street and then turning left and proceeding northbound on Morningside Drive.
Officer Hernandez said he received several radio communications that male blacks and Hispanics had run into Morningside Park and were then running up a flight of stairs. Officer Hernandez went to the west side of the park to see if anyone was fleeing from the area. He then received a radio communication from Lieutenant D'Errico to respond to the vicinity of 113th Street and Amsterdam Avenue. Upon arriving at the location he observed the Defendant in the custody of Lieutenant D'Errico.
Officer Hernandez took custody of the Defendant and placed him inside his police vehicle. Lieutenant D'Errico showed Officer Hernandez the plastic bag he recovered from the Defendant and Lieutenant D'Errico told Officer Hernandez that there was a gun inside the bag. When he looked inside the bag Officer Hernandez observed a gun. After taking the Defendant into custody Officer Hernandez processed the arrest of the Defendant.
A certified copy of a Sprint report detailing police radio communications relevant to the shooting was received in evidence. Officer Hernandez interpreted the document to state that at 11:36 P .M. a sergeant was calling for “a level–1 mobilization” with regard to a male who had been shot. He further interpreted abbreviated writings on the document to mean that at 11:37 P.M. a male black wearing a white shirt was running towards Amsterdam Avenue, that a perpetrator was running back up stairs towards Amsterdam Avenue and that a city-wide mobilization of various police officers was being called to respond to the location, indicating that confirmation had been received of someone having been shot. Testimony of Detective Donna Torres
Detective Donna Torres stated that she was investigating the aforementioned shooting from the evening of August 4, 2012 at 1305 Amsterdam Avenue and was present during an interview of the Defendant which took place in the District Attorney's office in the early evening hours of August 6, 2012. Also present during the interview were Assistant District Attorney John Rebold, her partner Detective Gerard Dimuro, a student intern William Marde and the Defendant's parents.
The Defendant stated that on the evening of the shooting he had met up with a group of friends and went to the Grant Houses expecting to engage in a fight. Though he was not aware that anyone was in possession of a gun the Defendant said he heard what sounded like a fight and ultimately a gunshot. After hearing the gunshot he fled into Morningside Park and met up with a friend named “Bump”. The Defendant said Bump handed him a bag and instructed him to hold on to it. Further, he stated that he was aware that the bag contained a gun and a t-shirt. Bump left and the Defendant then went up a flight of stairs to exit the park where he ran into another friend named “Boogie”.
The Defendant acknowledged removing the t-shirt from the bag to wipe himself down because he was sweating. When the Defendant and Boogie reached the top of the steps Boogie asked to switch shirts with him. Boogie fanned himself with his t-shirt because he too was sweating. After the two changed shirts they proceeded to Amsterdam Avenue and in the vicinity of 113th Street the Defendant observed what he believed to be an officer in an unmarked vehicle. His suspicion was confirmed when he noticed the person in the vehicle was wearing a white shirt known by him to be part of a police lieutenant's uniform. The Defendant said that the lieutenant instructed them to stop and then proceeded to pat down Boogie. Next, he patted down the Defendant and the bag. When the lieutenant felt the gun he handcuffed the Defendant and Boogie fled.
Detective Torres stated that she took the t-shirt the Defendant had been wearing, given to him by Boogie, for the purpose of conducting DNA testing. She further noted that the design of the t-shirt matched that of the one being worn by the individual who was observed on video committing the shooting.
CONCLUSIONS OF LAW
Where the police have a founded suspicion that criminal activity is afoot, they may interfere with a citizen to gain explanatory information from that person and exercise the “common-law right to inquire”. Where a police officer entertains a reasonable suspicion that a particular person has committed a felony the police may forcibly stop and detain that person. An officer may also frisk such a person if the officer reasonably suspects he is in danger of injury by virtue of the suspect being armed. Such a right to frisk is a “corollary” to the right to temporarily stop and detain a person. The police may arrest a person when the police have probable cause to believe the suspect committed a crime. People v.. DeBour, 40 N.Y.2d 210 (1976). Under the DeBour holding a common-law inquiry is considered a “Level 2” intrusion while a forcible stop and detention is considered a “Level 3” intrusion.
For a frisk to be justified the police must have knowledge to support a reasonable suspicion that a suspect is armed or poses a safety threat. People v. Batista, 88 N.Y.2d 650 (1996). Justification to conduct a frisk of a suspect for a weapon does not authorize the police to conduct a full-blown search of the individual. People v. DeJesus, 169 A.D.2d 521 (1st Dept 1991), app denied,77 N.Y.2d 994. Rather, the frisk of a civilian during a protective pat-down must be restricted only to the extent that it is necessary to determine whether he is in possession of a weapon. People v. Diaz, 81 N.Y.2d 106 (1993). However, if the police are justified in conducting a safety frisk of a suspect they are also permitted to pat down bags in his possession. People v. Corbett, 258 A.D.2d 254 (1st Dept 1999), lv denied,93 N.Y.2d 898.
Under the “fellow officer rule” information which justifies police action may be acted upon by an officer who lacks personal knowledge of the information as long as a police officer or other police agency possesses the requisite quantum of information to support the police action. See People v. Ketcham, 93 N.Y.2d 416 (1999). A police officer is authorized to act based on the strength of radio communications from a fellow officer. People v. Washington, 87 N.Y.2d 945 (1996).
In this case, the Court finds that at the moment Lieutenant D'Errico first confronted the Defendant and asked him to stop and show his hands, he engaged in a Level 2 “common-law inquiry” requiring a founded suspicion that criminal activity was afoot. People v. Bora, 83 N.Y.2d 531 (1994); People v. Casimey, 39 AD3d 228 (1st Dept 2007), lv denied,8 NY3d 983;People v. Jenkins, 209 A.D.2d 164 (1st Dept 1994). If the police have a founded suspicion of criminality to support a common-law inquiry they may also ask a suspect to view the contents of a plastic bag he is holding. People v. Rogers, 259 A.D.2d 398 (1st Dept 1999), lv denied,93 N.Y.2d 1005.
Lieutenant D'Errico frisked the Defendant and his bag only moments after first confronting him. However, the frisk elevated the encounter and required a reasonable suspicion that Mr. Carter was armed. By virtue of the recent 3–2 majority opinion of the First Department in In re. Darryl C., 98 AD3d 69 (1st Dept 2012), app dismissed,19 NY3d 1040, the frisk also required a reasonable suspicion that Mr. Carter had committed a crime, that is, that the police at that moment not only had a basis to make a common-law inquiry but also a basis to elevate the encounter with Mr. Carter to a Level 3 intrusion. That issue is discussed infra.
The Court finds that Lieutenant D'Errico's actions were justified at their inception and throughout every moment of his interaction with the Defendant. Lieutenant D'Errico had, at a minimum, a reasonable suspicion that criminal activity was afoot at the moment he initially confronted Mr. Carter. He had a reasonable suspicion that Mr. Carter was armed and dangerous at the time he frisked the Defendant and his bag. He also had a reasonable suspicion that Mr. Carter had committed a crime at the moment the frisk was conducted. Once Lieutenant D'Errico felt a gun inside the Defendant's bag, he had probable cause to arrest Mr. Carter for unlawful gun possession.
With respect to the legality of Lieutenant D'Errico's initial inquiry, the evidence at the hearing clearly established that he relied in part on information provided by fellow law enforcement personnel in connection with a shooting which took place at 1305 Amsterdam Avenue. Information concerning the occurrence of the shooting, including the description of individuals suspected of committing the offense, was conveyed by police personnel. The information they communicated by radio is presumed to be reliable. Further, Police Officer Hernandez's testimony concerning the “level 1 mobilization” and the information contained in the Sprint report established that a shooting had in fact occurred. Lieutenant D'Errico was justified in acting on that information.
The description of the suspects who had fled from the scene of the shooting was only a general one, of course. Lieutenant D'Errico knew only that the suspects from the shooting were young black or Hispanic males. However, that general description was only the first component of the information which Lieutenant D'Errico knew at the moment he initially confronted Mr. Carter.
First, Lieutenant D'Errico was patrolling at the location where he found Mr. Carter because he had reasonably surmised that this was one of the precise places where the fleeing suspects from the shooting might be found. He had figured out where a suspect fleeing into Morningside Park may have been able to travel to in the time period which had elapsed since the report of the shooting. Mr. Carter had arrived at one such possible location—right on schedule. Moreover, he and his companion were the only subjects in the area matching the general description Lieutenant D'Errico had been given.
A radio transmission indicated that one of the suspects fleeing the shooting was a male black wearing a white shirt who was running towards Amsterdam Ave. Defendant's companion was a male black with a white shirt who was walking on Amsterdam Ave. Although Lieutenant D'Errico did not testify that he had heard a transmission identifying one of the suspects as wearing a white shirt it can be inferred from all of the circumstances that he heard that report. See People v. Gonzalez, 91 N.Y.2d 909 (1998); People v. Williams, 52 AD3d 208 (1st Dept 2008), lv denied,11 NY3d 743.
Mr. Carter and his companion were walking at a brisk pace, which Lieutenant D'Errico testified was consistent with someone fleeing the scene of a shooting. Of course, people walk briskly for all kinds of reasons not indicative of criminality. However, this additional fact corroborated the other information implicating the Defendant and his companion. The unidentified suspect was lifting up his shirt, in a manner which Lieutenant D'Errico testified would be consistent with someone changing a shirt in order to avoid being identified as a person who had fired a gun. The Defendant was carrying a bag with a heavy object in it, which could have been a gun. Lieutenant D'Errico testified that he had been involved in a couple of previous arrests involving guns in shopping bags. Under all of these circumstances, Lieutenant D'Errico was at a minimum fully justified in conducting a common-law inquiry of the Defendant when he did so.
In the course of confronting the Defendant, Lieutenant D'Errico learned three other important facts. The suspects did not at first heed his direction. It was upon confronting the suspects, moreover, that Lieutenant D'Errico apparently became aware that the heavy object in the bag had a “squarish” shape with a straight line on the bottom, consistent with the appearance of a gun. As the two suspects approached Lieutenant D'Errico, moreover, he noticed they were sweating profusely. People sweat for all kinds of reasons, of course. The sweating, however, again corroborated engaging in precisely the kind of physical activity which might have been expected from suspects fleeing a shooting scene. It would be consistent, for example, with someone climbing a flight of stairs from Morningside Park, one block away or running. August 5th was a summer night. But there was no evidence that it was an unusually sweltering one, or an evening when it might be expected that simply walking down the street, even briskly, might cause profuse sweating.
Once these additional facts became known, Lieutenant D'Errico was justified in elevating the encounter from a common-law inquiry to a level 3 forcible stop and detention. The frisk of Mr. Carter's person and bag were justified based on all of these factors. Lieutenant D'Errico was confronting suspects in a shooting, a scenario where obviously “a potential for great danger existed”. People v. Celaj, 306 A.D.2d 71, 73 (1st Dept 2003), affirmed, 1 NY3d 588 (2004) (quotation omitted). He was also obviously entitled to consider the fact that he was outnumbered which increased the possible danger he was facing. See People v. Bracy, 91 AD3d 1296 (4th Dept 2012), lv denied,20 NY3d 1060 (2013); People v. Stevens, 255 A.D.2d 145, 146 (1st Dept 1998), lv. denied,93 N.Y.2d 858. At the moment he frisked the Defendant, moreover, in the Court's view, Lieutenant D'Errico also had a reasonable suspicion that Mr. Carter possessed a gun and was thus committing a crime.
The People make an additional legal argument which merits discussion. They contend that where the police have facts which justify only a common-law inquiry, but, in addition, reasonably fear that a suspect is armed, a frisk is justified even if the police do not have a reasonable suspicion that a suspect has committed a crime justifying a Level 3 forcible stop and detention. The Court agrees that the weight of authority in New York supports this view and that this is a correct statement of the law, although the principle has not always been explicitly articulated in the authorities which support that conclusion. See, e.g., People v. Samuels, 50 N.Y.2d 1035 (1980); People v. Russ, 61 N.Y.2d 693 (1984); Batista, supra; People v. Daniels, 190 A.D.2d 858 (2nd Dept 2003), lv denied,81 N.Y.2d 1071;People v. Stone, 86 A.D.2d 347 (1st Dept 1982), lv denied, 57 N.Y.2d 762,cert denied,459 U.S. 1212 (1983); People v. Robinson, 278 A.D.2d 808 (4th Dept 2000), lv denied,96 N.Y.2d 787 (2001); People v. Stevenson, 273 A.D.2d 826 (4th Dept 2000). In its recent 3–2 majority opinion in Darryl C., however, the First Department clearly held that where a police officer has the right to make a common-law inquiry, but does not have reasonable suspicion that a suspect has committed a crime, the officer may not frisk the suspect, even if the officer has a reasonable suspicion that the suspect is armed and the officer reasonably suspects he is in danger of physical injury by virtue of that weapon.
The majority articulated the relevant standard repeatedly in its decision: “The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity and then knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety. The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. 98 AD3d at 70 ... “Absent reasonable suspicion of involvement in a crime, there was no basis to stop and detain appellant and, thus, no basis for even considering conducting a frisk.” 98 AD3d at 74. (citations and additional quotations omitted).
The People, in their written submission, urge that to the extent the Darryl C. case can be so read, it should be “discounted as in conflict with the overwhelming weight of authorities to the contrary”.
The Darryl C. decision, however, is the most recent and explicit holding of the First Department concerning the authority of the police to conduct a safety frisk when they do not have a reasonable suspicion that the Defendant has committed a crime. The holding is not in conflict with a previous clear holding of the Court of Appeals to the contrary, in this Court's view. This Court is therefore required to follow it. More importantly, while this issue is legally interesting and analytically important, it does not have any practical significance in a gun possession case.
People's Memorandum of Law in Opposition to Defendant's Motion to Suppress, April 11, 2013, n.1.
If the police have only a common-law right to inquire and suspect a person is armed with a legal weapon which places them in reasonable fear for their safety, then the Darryl C. case holds that the police may not frisk that person. However, where the police have a reasonable suspicion that a suspect has a gun and poses a threat, then, by definition, the police will also have a reasonable suspicion that the suspect possesses an illegal gun and is therefore committing a crime. That is what occurred here. At the moment Lieutenant D'Errico frisked Mr. Carter he reasonably suspected Mr. Carter possessed a gun. He also by definition at that moment reasonably suspected Mr. Carter was committing a crime. See Darryl C., 98 AD3d at 86,Richter, J., dissenting (evidence that the officer “had a reasonable fear for his safety also supports a finding of a reasonable suspicion that appellant committed a crime, namely, that he was armed with a weapon”).
There is an additional point which should be made about Lieutenant D'Errico's credibility. His testimony was fully corroborated by the voluntary statement made by the Defendant. His testimony was also partially corroborated by the videotape which showed the Defendant and his companion walking on Amsterdam Avenue shortly before the arrest.
The bag and the t-shirt which were recovered from the Defendant's person were lawfully obtained pursuant to his lawful arrest for gun possession. See People v. Natal, 75 N.Y.2d 379 (1990). Since there was no evidence adduced at the hearing concerning a cell phone or Metrocard the People did not meet their initial burden of going forward with evidence establishing that the police used proper procedures to obtain those items. See, e.g., People v. Moses, 32 AD3d 866 (2d Dept 2006), lv denied,7 NY3d 927. The motion to suppress the Defendant's cell phone and Metrocard is therefore granted.
It may be that the People have no intention of introducing evidence that the Defendant was carrying a cell phone or a Metrocard and therefore did not elicit any evidence concerning those items at the hearing.
Courts have upheld common-law inquiries and frisks under circumstances similar to those here where the police had less information justifying an intrusion. In People v. Gould, 228 A.D.2d 280 (1st Dept 1996), app denied,89 N.Y.2d 864 for example, a common-law inquiry was found justified where the police saw two men near a shooting in a park, the suspects' location was in a likely exit route from the park and there did not appear to be anywhere else the suspects may have been coming from. One suspect ran when the police approached and the suspects appeared to be breathing heavily and sweating on a cool night. The fact that one suspect then simply moved his hands towards his waistband was found sufficient to justify a protective frisk.
A level 3 stop and frisk was also found justified in People v. Breaziel, 246 A.D.2d 310 (1st Dept 1998), app denied,91 N.Y.2d 940 under circumstances analogous to those here, even though there was no evidence that the police observed an item which might be construed as a weapon in the suspect's possession. In that case the suspect matched a description provided of a perpetrator, he was in the area where a violent crime with a knife had occurred one-half hour earlier, he was the only individual in the area matching the description, he was sweating profusely and he acted evasively when confronted by the police. The police in Breaziel, however, had a more precise description of the suspect than Lieutenant D'Errico had here, including not only his gender, race and apparent age but his build, clothing and height. The fact that a shooting has occurred in an area where the police justifiably make a common-law inquiry has been held to be a significant factor justifying a protective frisk. People v. Glover, 87 AD3d 1384 (4th Dept 2011), lv denied,19 NY3d 960 (2012).
The Defendant in his written submission argues, inter alia, that Mr. Carter appears to have been stopped “solely because of his race and color”. Lieutenant D'Errico, Defendant argues, was acting only on a “hunch” and that “hunch' was based on Carter's race”.
He makes a number of salient points in that regard including the fact that Lieutenant D'Errico had only a general description of the suspects running from the shooting scene, that the Defendant and his companion were not engaged in any obvious criminal behavior when they were stopped and that Lieutenant D'Errico did not ask the suspects a single question before frisking them. A court reviewing whether the police act properly in stopping and frisking a person must consider whether the justification for the intrusion is pretextual and whether the police were motivated by an improper purpose. People v. Prochilo, 41 N.Y.2d 759, 761–762 (1977).
Memorandum of Defendant's counsel Gregory G. Smith, April 22, 2013 at 5; 12.
The Court does not believe Lieutenant D'Errico's asserted justification for stopping the Defendant in this case was pretextual. The record indicates rather that those actions were predicated on “specific and articulable facts” (People v. Chestnut, 51 N.Y.2d 14, 22 [1980],cert denied,449 U.S. 1018) which led Lieutenant D'Errico to have a reasonable suspicion that Mr. Carter was armed and had committed a crime. Lieutenant D'Errico's actions in this case, in the Court's view, were not the result of racial stereotyping. They resulted from good police work by a police supervisor with 27 years of experience who confronted a dangerous situation on the street.
Defendant in his submission also notes the ongoing civil litigation now proceeding in the Federal District Court for the Southern District of New York concerning the legality of the stop and frisk procedures and policies of the New York City Police Department.
The plaintiffs in the Floyd litigation allege “that there is a widespread pattern and practice of suspicionless and race-based stops and frisks by the NYPD”. 813 F.Supp 2d at 821. A discussion of that ongoing litigation also figured prominently in the majority's decision in Darryl C. In that case, the majority prominently cited Chief Judge Lippman's dissenting opinion in People v. Holland, 18 NY3d 840 (2011). In Holland, the Court of Appeals dismissed an appeal of an appellate division ruling overturning the trial court's grant of suppression because it held that the appellate ruling concerned a mixed question of law and fact which was not subject to Court of Appeals review.
Id., n.8; See Floyd v. City of New York, 813 F.Supp.2d 417 (S.D.NY 2011).
The underlying issue in Holland was whether a physical confrontation which was initiated by the Defendant against the police after an unlawful police intrusion on the Defendant was sufficiently attenuated from that initial police illegality to render the ultimate police action of arresting the Defendant and recovering narcotics from him lawful. Judge Lippman's dissent, which was joined by Judge Ciparick, faulted the attenuation analysis of the Appellate Division majority, saying the Court had employed “facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct”. Darryl C., 98 AD3d at 71,quoting Holland, 18 NY3d at 845. Continuing, the Darryl C. court noted, Judge Lippman said:
This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime. Id .... The policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year. Id., Darryl C., 98 AD3d at 71,quoting, Holland, n.4, quoting, Floyd, supra, 813 F.Supp.2d at 422 [S.D.NY, 2011].
Courts which discuss important public policy issues that are the focus of intense ongoing legal and political debate can make important contributions to such public discourse. There is also a risk, however, that such discussions can obscure both the basis for a ruling and the parameters of the larger issue. In the Darryl C. case, for example, both the majority and dissenting opinions included a meticulous examination of the law and facts applicable to the individual case before the court. Yet, the majority's prominent discussion of the NYPD's stop and frisk practices led the dissenting justices to conclude that the majority had “inappropriately” sought to turn the case “into a referendum on the NYPD's policing tactics”. The individual case before the Court, the dissenters pointed out, was “nothing of the sort”. Darryl C. n.1.
Trial courts considering individual suppression motions will obviously not normally have the evidence to make judgments about overall NYPD policies. That is certainly true in this case. Aggregate information about the hundreds of thousands of stops the police make every year is also not necessarily informative about the propriety of police actions in any individual case. The stop and frisk cases which come to our criminal courts are highly atypical. In the typical case when the police stop and frisk a person, no contraband is found and no criminal action is brought. The police action is never reviewed. Indeed, the inherent lack of any court review of the vast majority of such interactions provides a compelling argument to subject them to greater scrutiny and oversight. According to a report by the New York Civil Liberties Union, the police made 685,724 stops in 2011. They recovered 780 guns during those stops.
According to those figures, guns were thus recovered in slightly more than one tenth of one percent of the stops made by the NYPD in 2011.
Stop–And–Frisk 2011, NYCLU Briefing, May 9, 2012 (available on the Internet).
The stops reviewed in suppression hearings are atypical even among the small minority of those which result in an arrest. When the police frisk a suspect and discover only a marijuana joint, for example, there is a very small chance that the legality of the frisk will ever be reviewed. The case is likely to be disposed of before a suppression hearing is even considered. On the other hand, when a gun is recovered, court review is much more likely. Police officers are undoubtedly aware of such probabilities.
The small percentage of the police stops which are reviewed by our criminal courts may also be the ones which are most likely to have been justified for an additional reason. It is obviously possible for the police to act unlawfully and still uncover dangerous contraband. The question in a suppression ruling “is not what was ultimately found, but whether there was a right to find anything”. Darryl C., 98 AD3d at 73 (quotation omitted). Conversely, the police can lawfully intrude on a person and not discover any criminality. But, all things being equal, it stands to reason that the tiny percentage of cases where the police do recover a gun when making a stop may, in the aggregate, be the result of more significant indicia of initial criminality than the overwhelming majority of equivalent intrusions in which no criminality is ever found. Our suppression case samples may be further skewed by discount plea offers or outright dismissals in cases where a gun search was obviously problematic.
Even among the tiny percentage of stops in which a gun is found, moreover, the instant case is highly atypical for another reason. One of the most important and difficult tasks suppression courts have is assessing the credibility of police witnesses. In most suppression cases, in fact, the only evidence which is presented comes from the police. In this case, however, Lieutenant D'Errico's testimony was fully corroborated by the Defendant's statement.
Individual evidence suppression hearings may thus not be the best laboratories for evaluating the NYPD's stop and frisk policies. Judge Lippman's admonition to avoid “facile analytic shortcuts” is not just excellent advice when considering attenuation issues. It should also rightly be applied to any temptation to allow significant public policy debates to intrude on the question of whether the actions of a single police officer in confronting a single suspect are justified. In this case, in this Court's view, such an analysis demonstrates that the police acted lawfully. Defendant's suppression motion, except as otherwise indicated, is therefore denied.