Opinion
December 26, 1991
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Denman, P.J., Doerr, Green, Lawton and Davis, JJ.
Order affirmed and indictment dismissed. Memorandum: The People appeal from an order granting defendant's motion to suppress evidence seized from him after he exited a bus at the Buffalo bus terminal. The court found that the police had no basis to approach or stop defendant and that defendant did not consent because his actions "constituted a yielding to overbearing official pressures." Those findings are supported by the record (see, People v Irizarry, 168 A.D.2d 377, lv granted 77 N.Y.2d 912; Matter of Antoine W., 162 A.D.2d 121, appeal dismissed 76 N.Y.2d 887) and are entitled to much weight because the hearing court had the advantage of observing and hearing the witnesses (see, People v Prochilo, 41 N.Y.2d 759, 761).
All concur, except Denman, P.J., and Davis, J., who dissent and vote to reverse, in the following Memorandum.
We respectfully dissent. In our view, the suppression court erred in granting defendant's motion to suppress tangible evidence and oral admissions on the ground that they were the product of an illegal stop and seizure of defendant. The suppression court erroneously treated the DEA agents' initial approach of defendant as an intrusion consistent with the common-law right to inquire which "is activated by a founded suspicion that criminal activity is afoot" (People v De Bour, 40 N.Y.2d 210, 223). The mere approach by a police officer to request information from a person is justified when the officer has "some objective credible reason for that interference not necessarily indicative of criminality" (People v De Bour, supra, at 223; People v Edmund, 169 A.D.2d 195, 201; People v Heston, 152 A.D.2d 999, 1000, lv denied 76 N.Y.2d 858, 940). Moreover, behavior or events completely consistent with innocent activity may constitute an "objective credible reason" for the approach to request information (People v Edmund, supra, at 201; People v Heston, supra, at 1000), including behavior or circumstances that "satisfy several characteristics of a drug courier profile" (People v Edmund, supra, at 201; see, United States v Sokolow, 490 U.S. 1).
Here, the DEA agents had general information that trains and buses were being used to transport cocaine and other drugs from New York City, "a source city", to Buffalo. Defendant arrived in Buffalo on an express bus from New York City. Defendant carried only a small cloth duffel bag. After exiting the bus, defendant appeared very nervous, looked apprehensively over his shoulders and quickly left the bus terminal. Those circumstances, as viewed by a law enforcement official knowledgeable in the surveillance of drug activities, provided an "objective credible reason" for approaching defendant to request information. The DEA agents' conduct was likewise proper at every later phase of the encounter (see, People v Edmund, supra; People v Heston, supra).
Finally, there is no evidence in the record to support the suppression court's conclusion that "[t]he facts demonstrate defendant's actions constituted a yielding to overbearing official pressures". The DEA agents' undisputed testimony, which the hearing court credited, revealed that, after the agents identified themselves and asked defendant some preliminary questions, they asked him "if he would let us look into his bag" but "made a point to tell him that he was not under arrest, he didn't have to allow us to look into the bag". Defendant consented. Inside the bag, the agents discovered a rolled up shirt that contained cocaine. Defendant thereafter produced additional cocaine from inside his pants pockets. Defendant did not testify at the suppression hearing and the suppression court specifically declined to credit the testimony of defendant's sole witness.
We conclude that, in those circumstances, defendant's statements to the DEA agents were voluntary, his consent to the search of his duffel bag was freely given, and his action in producing the additional cocaine hidden in his pants pockets was voluntary. Defendant's conduct was not the product of any improper or intimidating police action (see, People v Gonzalez, 39 N.Y.2d 122, 128; People v Kuhn, 33 N.Y.2d 203, 208-209). Further, when defendant consented to the search, he was not handcuffed, nor was he in custody or under arrest, and he was advised of his right to refuse to consent. Under those circumstances, we conclude that as a matter of law, defendant's consent was voluntary and did not result from "a yielding of overbearing official pressure" (People v Gonzalez, supra, at 130). Accordingly, we would vote to reverse and deny defendant's suppression motion.