Summary
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."
Summary of this case from MATTER OF YODAOpinion
July 21, 1994
Appeal from the Supreme Court, New York County, Harold Rothwax, J., Brenda Soloff, J.
Appellant was arrested soon after boarding a bus at the Port Authority bus terminal. The arresting officer, Detective Nafey, testified that he observed appellant approach the bus shortly before departure time and look over his shoulder repeatedly, look out the boarding gate windows at the platform, and act "nervously" when he made eye contact with the detective who was standing behind the ticket agent at the entrance to the platform. Detective Nafey followed appellant onto the bus, identified himself, and asked appellant if he would talk with him. Appellant agreed. The detective asked him why he was so nervous. Appellant replied that he was not nervous. Detective Nafey asked him where he was going and if he had any baggage. Appellant responded that he was going home to Baltimore and showed him his ticket. Detective Nafey testified that during this exchange, appellant fidgeted in his seat, moving his hands constantly, and appeared to be sweating profusely and the bus was cool. Detective Nafey then explained that he was part of a narcotics interdiction team and asked if he could search his bag. Appellant consented. Detective Nafey opened it and found a bag of crack cocaine inside.
At the combined Dunaway, Mapp, and Huntley hearing, the court denied the defense motion to suppress. We reverse, and hold that Detective Nafey violated appellant's Fourth Amendment rights when he went beyond merely requesting information and asked to search the bag without the required founded suspicion that criminal activity was afoot (see, People v. Hollman, 79 N.Y.2d 181).
The facts of this case are strikingly similar to the facts in People v. Saunders ( 79 N.Y.2d 181), the companion case to People v. Hollman. In Saunders, as here, the police testimony of observing "nervous," drug courier profile behavior such as looking over one's shoulder in the bus terminal, scanning the interior of the boarding area, and acting hesitantly upon making eye contact with a detective does not provide a sufficient predicate to elevate a police initiated investigation beyond a request for information to the second level of common law inquiry. Such subjective evaluations as "nervousness," "furtiveness," "fidgeting," or hesitancy upon making eye contact simply are not sufficient to justify a request to search luggage in a bus terminal (see, People v. Irizarry, 79 N.Y.2d 890).
Motion for reargument is granted, and upon reargument, the unpublished prior decision and order of this Court entered on May 26, 1994 is recalled and vacated and a new decision and order substituted therefor.
Concur — Murphy, P.J., Ellerin, Kupferman and Nardelli, JJ.