Summary
concluding that telling the defendant to “hold on” did not constitute a seizure
Summary of this case from People v. DeSilvaOpinion
November 28, 1994
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the order is reversed, on the law, and that branch of the defendant's omnibus motion which was to suppress certain physical evidence is denied, and the matter is remitted to the Supreme Court, Kings County for further proceedings consistent herewith.
The defendant and a second individual were approached by two police officers. One officer told the defendant to "hold on", and then engaged the defendant in "small talk", while the second officer recovered what appeared to be contraband from the second individual. The second officer then conducted a search of the defendant, and recovered additional contraband and evidence. The contraband and evidence seized during the search of the defendant have been suppressed by order of the Supreme Court, and the People have appealed.
We agree with the People that the first officer's use of the phrase "hold on", considered in light of all the other circumstances revealed in the record of the suppression hearing, constituted no more than an aspect of this officer's exercise of his common-law right of inquiry (see, People v. Reyes, 83 N.Y.2d 945, cert denied ___ US ___, 115 S Ct 492; People v. Bora, 83 N.Y.2d 531). We also agree with the People that this officer had a founded suspicion that criminal activity was afoot, based on the observations which had been made by the second officer prior to the initial encounter with the defendant (see, People v. Olivo, 189 A.D.2d 786; People v. Rivera, 175 A.D.2d 78; cf., People v Leveridge, 204 A.D.2d 246).
We conclude that the conduct of both officers was at all times lawful. We therefore need not decide whether the taint, which the defendant claims resulted from his initial detention, was purged, prior to the occurrence of the actual search, by the fact that the second officer had independently gathered additional evidence which gave rise to probable cause (see generally, People v Chappell, 201 A.D.2d 492; People v. Salami, 197 A.D.2d 715; People v. Payne, 128 A.D.2d 559; People v. Medina, 107 A.D.2d 302; People v. Calhoun, 78 A.D.2d 658; cf., People v. Gordon, 87 A.D.2d 636).
For these reasons, the order appealed from should be reversed, and that branch of the defendant's omnibus motion which was to suppress certain physical evidence should be denied. Bracken, J.P., Miller, Lawrence and Santucci, JJ., concur.