Opinion
July 27, 1987
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the order is affirmed insofar as appealed from.
On February 28, 1986, at 5:00 A.M., Police Officer Sanchez and his partner were conducting a routine patrol when they observed the defendant peering into what appeared to be a "lady's pocketbook" as he walked. In response to a question by Officer Sanchez, the defendant stated that he had found the pocketbook. When directed to give the police officer the pocketbook, the defendant handed it through the window of the patrol car, while simultaneously withdrawing some currency. Sanchez announced that the defendant could not keep the money, and, without giving him a chance to respond, exited from the patrol car and searched him. The search revealed a wallet containing several credit cards in a woman's name. The hearing court properly granted suppression of this evidence.
The arrest of an individual and any search made incident to the arrest are unlawful unless supported by probable cause (see, People v. Hicks, 68 N.Y.2d 234). While probable cause does not require as much proof as is necessary to sustain a conviction, it does require more than mere suspicion (People v. Wharton, 60 A.D.2d 291, 292, affd 46 N.Y.2d 924, cert denied 444 U.S. 880). Conduct which is equally susceptible to innocent or culpable interpretation cannot give rise to probable cause (People v Carrasquillo, 54 N.Y.2d 248, 254; People v. De Bour, 40 N.Y.2d 210). The People contend that the police officers reasonably believed that the defendant had committed a larceny in their presence. However, the defendant's conduct was not indicative of criminal activity but was merely innocuous. The defendant simply stood before two armed police officers, with the currency held out in his hand. He did not put it in his pocket, turn his back, reach for a weapon, or run away (see, People v. Brown, 32 N.Y.2d 172). To seize, search and arrest an individual, in the absence of any knowledge that he intended to commit a crime and "without affording him [the] opportunity to explain his conduct, is to deprive him of his constitutional right against unreasonable [search and] seizure" (People v. Wharton, supra, at 295).
Because the instant arrest was an unconstitutional intrusion, the ensuing search was illegal, and the fruits thereof were properly suppressed (People v. Cantor, 36 N.Y.2d 106; People v Colon, 127 A.D.2d 604). Lawrence, J.P., Kunzeman, Kooper and Spatt, JJ., concur.