Opinion
January 4, 2001.
Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered March 10, 2000, which sentenced defendant upon his adjudication as a youthful offender.
Charles Guttman, Ithaca, for appellant.
Dale Worrall, District Attorney, Ithaca, for respondent.
Before: Crew III, J.P., Peters, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
The day following a shooting, an anonymous caller provided the City of Ithaca Police Department in Tompkins County with a physical description of one of the assailants named "Will" and advised that he was accompanied by two Caucasian males. Cautioning that Will was armed with a weapon and in the vicinity of Seneca Street, his description was dispatched to three police officers, one of whom identified a group of individuals meeting the description. He, along with his fellow officers, approached the group in a parking lot and asked the suspect, whom he recognized as Will Cruz, to face his police car so that he could be frisked. Notably, Cruz was dressed in a manner which would not enable him to secret a weapon. A plainclothes officer approached the two Caucasian males and asked them to face his unmarked police car. Defendant, one of the two, was the only individual carrying an object, here a backpack, into which a gun could be secreted. Rather than complying, defendant began to run. Pursued by one of the officers down a stream bed, the officer ultimately drew his gun and directed him to "lay down on his belly with his arms outstretched". Three other officers who had followed the chase also drew their weapons and pointed them at defendant; he was handcuffed and his backpack was searched. While marihuana and drug-related paraphernalia were discovered, no weapon was found.
Following a hearing, County Court found, inter alia, that the initial stop of defendant did not violate his constitutional rights, that there was a lawful basis for pursuit and that no excessive force was used. After entering a plea of guilty, defendant was adjudged a youthful offender and sentenced to five years probation. Upon his appeal, the lawfulness of the initial stop, the pursuit and the use of force is challenged.
Mindful that great weight should be accorded to the finding of the suppression court (see, People v. Pugh, 246 A.D.2d 679, lv denied 92 N.Y.2d 882), we recognize that while an anonymous tip indicating that an unidentified person is carrying a weapon will not, by itself, provide an officer with a quantum of reasonable suspicion to justify intrusive police action (see, Florida v. J.L., 529 U.S. 266; People v. De Bour, 40 N.Y.2d 210), the police were obligated to take some action on this radio call. If police conduct is legally challenged, the People must show that, in view of all the circumstances, the action taken was justified (see, People v. Lypka, 36 N.Y.2d 210). Because police-citizen encounters are not static situations, facts sufficient to support intrusive police action may develop rapidly at the scene (see, People v. Benjamin, 51 N.Y.2d 267, 270; People v. De Bour, supra, at 225).
Here, the record reveals that the officer was justified in believing that one of the individuals being confronted may be armed. Given the facts that came to his attention upon the initial confrontation, his independent observations corroborated the specific information received from the informant both as to the description of the individuals, one of whom was identified as "Will", and their location. The officers approached defendant and his companions without a weapon drawn and, upon a commencement of a frisk of Cruz, defendant took flight. For these reasons, we do not find the initial intrusion unreasonable (see, People v. Salaman, 71 N.Y.2d 869; People v. Finlayson, 76 A.D.2d 670, lv denied 51 N.Y.2d 1011, cert denied 450 U.S. 931).
As to the pursuit, it was triggered moments after the police, believing that "criminal activity was afoot in that narrowly defined area" (Illinois v. Wardlow, 528 U.S. 119, 138 n 16 [Stevens, J., concurring in part and dissenting in part]), attempted to frisk a companion. With an objectively credible reason for approaching defendant's companion, and fully recognizing that defendant's flight could not, in and of itself, create a reasonable suspicion of criminal activity justifying pursuit, we find that this conduct, viewed as part of all other attendant circumstances, clearly justified police pursuit (see, People v. Martinez, 80 N.Y.2d 444; People v. Tyner, 198 A.D.2d 627, lv denied 84 N.Y.2d 834).
Nor do we find error in the way in which the officers approached defendant after his flight or their handcuffing of him when finally seized. "Where, as here, police officers find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being, they must be permitted to take reasonable measures to assure their safety and they should not be expected `to await the glint of steel' before doing so" (People v. Allen, 73 N.Y.2d 378, 380, quotingPeople v. Benjamin, 51 N.Y.2d 267, 271).
For these reasons, we affirm the judgment of conviction.
Rose and Lahtinen, JJ., concur.
We respectfully dissent. As a starting point, we sympathize with those who assert that unprovoked flight is not a mere refusal to cooperate and can hardly be considered as "going about one's business" (Illinois v. Wardlow, 528 U.S. 119, 124; see, People v. Holmes, 81 N.Y.2d 1056, 1059 [Bellacosa, J., dissenting]). Nevertheless, given the well-established common-law principles of this State regarding police-citizen confrontations, we are constrained to conclude that the stop and seizure here was unjustified and, thus, suppression of the evidence recovered was mandated.
It is well settled that an investigatory stop must be supported by a reasonable suspicion that the defendant has committed or is about to commit a crime (see, e.g., People v. Leung, 68 N.Y.2d 734), the same predicate for a common-law inquiry (see, People v. Hollman, 79 N.Y.2d 181, 191). It is equally well settled that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify an investigatory stop (see, Florida v. J.L., 529 U.S. 266, ___, 120 S.Ct. 1375, 1379; People v. Gray, 154 A.D.2d 301). However, while an anonymous tip, standing alone, has almost no legal significance, it may, when considered in conjunction with other supporting facts, support a reasonable suspicion that a defendant has or is about to commit a crime (see, People v. Salaman, 71 N.Y.2d 869; People v. Benjamin, 51 N.Y.2d 267), thereby justifying an investigatory stop. Finally, "[f]light alone * * * even in conjunction with equivocal circumstances that * * * justify a police request for information * * * is insufficient to justify pursuit" (People v. Holmes, supra, at 1058). It is only where flight is coupled with other observable circumstances indicating that criminal activity is afoot that pursuit becomes permissible (see, e.g., People v. Matienzo, 81 N.Y.2d 778, 780; People v. Martinez, 80 N.Y.2d 444, 448).
With these principles in mind, we now review the undisputed facts in this case. An anonymous call was placed to the police asserting that Will Cruz was at a particular location in the company of two other white males (one of whom subsequently was identified as defendant), that he was one of the persons involved in a drive-by shooting that had occurred two days earlier and that he was armed. Additionally, the caller gave a reasonably detailed description of Cruz. Shortly thereafter, a police officer observed three men not far from the location given by the caller, one of whom matched the description given by the caller. At this point, the police had an articulable reason to approach Cruz, and arguably the other two individuals, to request information regarding, inter alia, their identity, their reason for being in that location and their destination (see, People v. Hollman, supra, at 191). The police clearly had no justification for an investigatory stop.
To the extent that the People argue that the caller's information was so detailed that it demonstrated his or her reliability justifying more intrusive police action, we cannot agree. Quite clearly, an accurate description of Cruz's readily observable location and appearance does not demonstrate that the tipster indeed had knowledge of concealed criminal activity (see, Florida v. J.L., supra, at 1378-1379; see also, People v. Elwell, 50 N.Y.2d 231). Accordingly, when defendant bolted and ran, the officers had no authority to pursue (see, People v. Holmes, supra).
Finally, to the extent that the People rely upon those cases justifying pursuit based upon rapidly developing circumstances at the scene, we do not believe they are applicable to the facts here. Certainly there were no facts observed by the police justifying a reasonable suspicion that Cruz had transferred a gun to defendant, thereby permitting pursuit. In all of the cases justifying pursuit based upon an anonymous tip, the police observed conduct at the scene making them reasonably suspicious of criminal activity (see, e.g., People v. Sierra, 83 N.Y.2d 928; People v. Matienzo, supra; People v. Martinez, supra). No such observations were made here. In sum, the police had an anonymous tip that Cruz was armed giving them the right to approach the three individuals for a request for information but not the right to make an investigatory stop. There is no evidence that anything else occurred except that defendant fled and, thus, the police had no authority to pursue.
Mugglin, J., concurs.
ORDERED that the judgment is affirmed.