Opinion
November 16, 1995
Appeal from the Supreme Court, New York County, Alfred Kleiman, J., Charles Tejada, J.
Regardless of whether this police-citizen encounter is characterized as an arrest or a stop and frisk, it exceeded the scope of what was constitutionally permissible under the particular circumstances. The objective information available to the officer, who merely saw defendant walking in an area in the Port Authority Bus Terminal that just minutes earlier had been completely open to the public, only provided "a founded suspicion that criminal activity [was] afoot" ( People v De Bour, 40 N.Y.2d 210, 223), thereby activating the officer's common-law right to inquire. Neither the fact that this Spanish-speaking defendant failed to immediately respond to the officer's question ( People v Gutierrez, 129 A.D.2d 463, 465, appeal dismissed 70 N.Y.2d 782) nor the fact that the arresting officer subjectively believed that defendant "looked like he was going to run on [him]" in response to the officer's direction to stop (an erroneous belief as it turned out) was a sufficient basis to escalate this into a more intrusive encounter. Furthermore, a careful review of the testimony reveals that the officer saw the bulge that turned out to be a knife after defendant was arrested. "In evaluating the police action we must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible" ( People v De Bour, supra, at 222) and subsequent developments cannot serve as the foundation for either a finding of probable cause to arrest or reasonable suspicion to conduct a stop and frisk.
In light of the foregoing, we do not reach appellant's remaining contentions.
Concur — Ellerin, J.P., Wallach, Asch and Mazzarelli, JJ.
As properly noted by the majority, the overriding consideration in any evaluation of a civilian police encounter is "whether or not the police action was justified in its inception and * * * whether or not that [police] action was reasonably related in scope to the circumstances which rendered its initiation permissible" ( People v De Bour, 40 N.Y.2d 210, 215). However, in my view, evaluation of the matter at bar in terms of that standard should yield a different result.
According to the testimony elicited at the suppression hearing, the arresting officer observed the defendant at 1:15 A.M., walking through an area of the Port Authority Bus Terminal that had been closed approximately one quarter hour earlier. Given the location, the time of morning and the fact that the defendant appeared startled at being confronted by the officer, it was reasonable for the officer to approach the defendant and then take him into custody upon failing to receive an explanation for defendant's unlawful presence in the restricted location.