People v. Cobb

Appellate Division of the Supreme Court of New York

People v. Cobb

208 A.D.2d 453, 617 N.Y.S.2d 721, 1994 N.Y. App. Div. LEXIS 10467

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 1994

StatusPublished

Cited by5 cases

This text of 208 A.D.2d 453 (People v. Cobb) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cobb, 208 A.D.2d 453, 617 N.Y.S.2d 721, 1994 N.Y. App. Div. LEXIS 10467 (N.Y. Ct. App. 1994).

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Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 8, 1993, which granted defendant’s motion to suppress physical evidence and statements made to the police, unanimously affirmed.

While the anonymous tip of a man selling credit cards, coupled with the observation of a man exactly fitting the informant’s description and holding what could have been a credit card, gave the police reasonable suspicion to believe that defendant had possession of and was trying to sell stolen credit cards (see, People v Benjamin, 51 NY2d 267, 270-271), justifying temporary detention for questioning (see, People v De Bour, 40 NY2d 210, 223), such circumstances did not justify a search of defendant’s pocket without any inquiry, which amounted to an arrest requiring probable cause (see, People v Diaz, 81 NY2d 106, 109; People v Soto, 194 AD2d 371). Defendant’s action in putting the card in his pocket when one of the officers tapped his shoulder was not "furtive”, as the People argue, and defendant did not flee or otherwise attempt to avoid the officer when asked what he had just put in his pocket. The officer who reached into defendant’s pocket was not the officer who had overheard defendant’s conversation with the second man about buying credit cards, and he did so without awaiting a response from defendant to his question about what he had just put in his pocket. The police did not know whether defendant was the owner of the credit card they saw him holding as they approached, and had no reason to believe that defendant had a weapon in his pocket. Since the credit cards and other physical evidence recovered from defendant’s pocket, and the subsequent statements he made at the scene attempting to explain his possession of the [454]*454cards, were the direct product of an unlawful search, they were properly suppressed (see, People v Soto, supra, at 374). Concur—Murphy, P. J., Sullivan, Rosenberger, Nardelli and Tom, JJ.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 8, 1993, which granted defendant’s motion to suppress physical evidence and statements made to the police, unanimously affirmed.

While the anonymous tip of a man selling credit cards, coupled with the observation of a man exactly fitting the informant’s description and holding what could have been a credit card, gave the police reasonable suspicion to believe that defendant had possession of and was trying to sell stolen credit cards (see, People v Benjamin, 51 NY2d 267, 270-271), justifying temporary detention for questioning (see, People v De Bour, 40 NY2d 210, 223), such circumstances did not justify a search of defendant’s pocket without any inquiry, which amounted to an arrest requiring probable cause (see, People v Diaz, 81 NY2d 106, 109; People v Soto, 194 AD2d 371). Defendant’s action in putting the card in his pocket when one of the officers tapped his shoulder was not "furtive”, as the People argue, and defendant did not flee or otherwise attempt to avoid the officer when asked what he had just put in his pocket. The officer who reached into defendant’s pocket was not the officer who had overheard defendant’s conversation with the second man about buying credit cards, and he did so without awaiting a response from defendant to his question about what he had just put in his pocket. The police did not know whether defendant was the owner of the credit card they saw him holding as they approached, and had no reason to believe that defendant had a weapon in his pocket. Since the credit cards and other physical evidence recovered from defendant’s pocket, and the subsequent statements he made at the scene attempting to explain his possession of the [454]*454cards, were the direct product of an unlawful search, they were properly suppressed (see, People v Soto, supra, at 374). Concur—Murphy, P. J., Sullivan, Rosenberger, Nardelli and Tom, JJ.

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Bluebook (online)

208 A.D.2d 453, 617 N.Y.S.2d 721, 1994 N.Y. App. Div. LEXIS 10467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cobb-nyappdiv-1994.

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