Summary
finding that "merely staring at or otherwise looking in the direction of police officers" was insufficient to provide an "objective, credible reason" to initiate a stop of plaintiff
Summary of this case from Savage v. AcquinoOpinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Damone SAVAGE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3 ] ), defendant contends that Supreme Court erred in refusing to suppress physical evidence, i.e., a handgun, and his subsequent oral statements to the police because the police lacked an objective, credible reason to justify their initial approach and request for information. We agree.
The testimony at the suppression hearing established that at approximately 6:30 p.m. on January 18, 2013, a Buffalo police officer and his partner were conducting a traffic stop in the parking lot of a gas station when they observed defendant and two other men walking down the sidewalk on the other side of the street in a "higher crime area." According to the officer, defendant was "staring" at him and his partner or at their marked patrol vehicle. Upon concluding the traffic stop, the officers crossed the street in their vehicle in order to drive alongside the men, the officer asked, "what's up, guys?" from the rolled-down passenger window, and defendant then put his head down and started walking away at a faster pace. The officer thereafter observed defendant drop a gun holster to the ground and, after exiting the vehicle and picking up the holster, the officer saw defendant discard a handgun into nearby bushes. The officer's partner positioned the patrol vehicle to cut off defendant's path of travel, and defendant was eventually apprehended.
In evaluating police conduct, a court "must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" (People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98, lv. denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 ; see People v. De Bour, 40 N.Y.2d 210, 222–223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual "when there is some objective credible reason for that interference not necessarily indicative of criminality" (De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ), and "[t]he request may ‘involve[ ] basic, nonthreatening questions regarding, for instance, identity, address or destination’ " (People v. Garcia, 20 N.Y.3d 317, 322, 959 N.Y.S.2d 464, 983 N.E.2d 259, quoting People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 ). Although the first level "sets a low bar for an initial encounter" (People v. Barksdale, 26 N.Y.3d 139, 143, 20 N.Y.S.3d 296, 41 N.E.3d 1111 ), the Court of Appeals has nevertheless observed that, "[i]n determining the legality of an encounter under De Bour and Hollman, it has been crucial whether a nexus to [defendant's] conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. The fact that an encounter occurred in a high crime vicinity, without more, has not passed De Bour and Hollman scrutiny" (People v. McIntosh, 96 N.Y.2d 521, 526–527, 730 N.Y.S.2d 265, 755 N.E.2d 329 ).
Here, we conclude that the officers engaged in a level one approach and request for information when they concluded the traffic stop after observing defendant and the other men walking down the sidewalk, crossed the street in their marked patrol vehicle in order to drive alongside the men, and asked them the basic, nonthreatening question, "what's up, guys?" (see People v. Howard, 129 A.D.3d 1654, 1654, 12 N.Y.S.3d 708 ; People v. Johnston, 103 A.D.3d 1202, 1203, 959 N.Y.S.2d 343, lv. denied 21 N.Y.3d 912, 966 N.Y.S.2d 364, 988 N.E.2d 893 ; People v. Carr, 103 A.D.3d 1194, 1194, 962 N.Y.S.2d 520 ). Contrary to the People's contention, it cannot be said, under such circumstances, that the officers' approach and inquiry was merely a "friendly greeting" that did not constitute a request for information (cf. People v. Thornton, 238 A.D.2d 33, 35, 667 N.Y.S.2d 705 ).
We agree with defendant that the officers' conduct was not justified from its inception. We conclude that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one's way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police, i.e., "attendant circumstances ... sufficient to arouse the officers' interest" (De Bour, 40 N.Y.2d at 220, 386 N.Y.S.2d 375, 352 N.E.2d 562 ), is insufficient to provide the police with the requisite "objective, credible reason, not necessarily indicative of criminality" to justify a level one encounter (Hollman, 79 N.Y.2d at 184, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; see De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; cf. e.g. Matter of Demitrus B., 89 A.D.3d 1421, 1421–1422, 932 N.Y.S.2d 620 ; Matter of Steven McC., 304 A.D.2d 68, 72–73, 757 N.Y.S.2d 259, lv. denied 100 N.Y.2d 511, 766 N.Y.S.2d 165, 798 N.E.2d 349 ; People v. Randolph, 278 A.D.2d 52, 52, 717 N.Y.S.2d 561, lv. denied 96 N.Y.2d 762, 725 N.Y.S.2d 289, 748 N.E.2d 1085 ). Here, beyond the fact that defendant had stared at the police in a "higher crime area" while continuing to walk down the sidewalk, the officers testified to no further observations of defendant or the other men that drew their attention (cf. People v. White, 117 A.D.3d 425, 425, 985 N.Y.S.2d 47, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 ; People v. Sims, 106 A.D.3d 1473, 1473, 964 N.Y.S.2d 380, appeal dismissed 22 N.Y.3d 992, 979 N.Y.S.2d 557, 2 N.E.3d 925 ; Johnston, 103 A.D.3d at 1203, 959 N.Y.S.2d 343 ; Randolph, 278 A.D.2d at 52, 717 N.Y.S.2d 561 ) and, to the extent that the court found that defendant displayed any nervous or evasive behavior upon initially seeing the officers, we conclude that such a finding is unsupported by the record. We agree with defendant that the officers lacked other attendant circumstances to arouse their interest inasmuch as the encounter occurred at 6:30 in the evening rather than late at night and there was automobile traffic in the area at that time (cf. De Bour, 40 N.Y.2d at 220, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v.
Riddick, 70 A.D.3d 1421, 1422, 894 N.Y.S.2d 260, lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 ). The suppression hearing testimony further established that the officers were not responding to a dispatch with a description of a suspect in the area matching defendant's appearance (cf. Howard, 129 A.D.3d at 1654, 12 N.Y.S.3d 708 ; People v. Burnett, 126 A.D.3d 1491, 1491–1492, 6 N.Y.S.3d 375 ). We thus conclude that the officers lacked an objective, credible reason for the level one approach and request for information (see People v. Laviscount, 116 A.D.3d 976, 978–979, 984 N.Y.S.2d 394, lv. denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 ; People v. Larmond, 106 A.D.3d 934, 934, 964 N.Y.S.2d 661, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 ; Matter of Michael F., 84 A.D.3d 468, 468, 923 N.Y.S.2d 61 ). Thus, the court erred in refusing to suppress the handgun and defendant's subsequent oral statements to police.
In light of our determination that the court should have granted defendant's motion seeking to suppress physical evidence and his supplemental motion seeking to suppress his oral statements to police, defendant's guilty plea must be vacated (see Riddick, 70 A.D.3d at 1424, 894 N.Y.S.2d 260 ). Further, inasmuch as our determination results in the suppression of all evidence in support of the crime charged, the indictment must be dismissed (see People v. Hightower, 136 A.D.3d 1396, 25 N.Y.S.3d 764 ). We therefore remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, the motion to suppress physical evidence and supplemental motion to suppress statements are granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.