Opinion
2003SU65485.
Decided June 25, 2004.
Thomas Spota, Esq., District Attorney, Central Islip, NY.
Robert C. Mitchell, Esq., Legal Aid Society, Central Islip, NY.
Can a police officer tap on the window of parked car in a drug-prone parking lot without further justification?
The defendant is charged with Criminal Possession of a Weapon, PL 265.01. The information alleges that the police officer observed metal knuckles located at the feet of the defendant while he sat in his vehicle. The observation was made "while investigating suspicious circumstances".
A hearing was held to determine probable cause. At the hearing the police officer testified convincingly that he was assigned to a COPE unit to investigate community complaints. He was in a parking lot outside a discount department store. The parking lot was a known drug location. He had made 12 drug arrests at that location. He observed a parked car with 2 occupants. He knocked on the window and shown his flashlight into the window. He observed that the defendant was in the driver's seat and had brass knuckles at his right foot. The passenger had loose marijuana in her hands. The defendant states: "I guess these are brass knuckles." The officer gave the defendant a field appearance ticket.
The issue of street encounters between the police and the public has been decided by People v. DeBour, 40 N.Y.2d 210. That decision established four levels of encounters. The first and lowest level allows the police officer to request information. At this level, there need be no indication that a crime is being committed. In People v. Hollman. 79 N.Y. 2d 181, the four tiered regimen was reaffirmed. At the first level, questions regarding identity, destination and reason for being at a particular location would be permitted. If a police officer seeks simply to request that type information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality.
The police officer must show "the reasonable level of suspicion". . . . Furthermore, a police officer is not permitted to ask intrusive, potentially incriminating questions unless there is a founded suspicion that criminality is occurring. ( see Generally Kamins, New York Search Seizure, 14th ed. Ch.ll).
In People v. McIntosh, 96 N.Y. 2d 521, the Court struck down the policy of the Albany Police of asking bus passengers arriving from New York City for identification and then examining their bags and other property. The police felt that New York City was a known source of narcotics trade. The Court held that general information is not sufficient to justify Level 1 encounters. The knowledge that a geographic area is a high crime area or a drug-prone area is not sufficiently specific to justify the encounter. The police must observe conduct "which provided a particularized reason to request information". In McIntosh, the Appellate Division, 274 A.D. 2d at 741-742, held that suspicion that a location is a known drug source of narcotics is sufficient articulable reason for the interdiction. The Court of Appeals overruled that position. The defendant argued that the knowledge of the drug source is not sufficient to ask everyone on the bus to produce identification and a bus ticket. The Court of Appeals agreed. The Court goes on to say that even a high drug or crime area is not justification for informal requests for information. The example provided by the Court indicates that an individual must exhibit suspicious conduct before he can be approached. The Court also states that inquiry would be appropriate when the police had a "tip" or information that drugs were in that location at that time.
In the instant case, the police officer justified the knock on the window and the scan of the interior of the car with a flashlight by the knowledge that he had made numerous arrests for drugs in that area. However, there was no reason given to single out the defendant nor to interfere with his expectation of privacy within his car. Such an encounter was inherently unreasonable.
Accordingly, the weapon is suppressed and the charge is dismissed.