People v. Hill

2017 NY Slip Op 4236, 150 A.D.3d 627, 57 N.Y.S.3d 14

Opinions

Judgment, Supreme Court, New York County (Gregory Carro, J. at suppression hearing; Rena K. Uviller, J. at plea and sentencing), rendered March 8, 2012, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of two years, affirmed.

The court properly denied defendant’s motion to suppress. A team of police officers was assigned as part of a conditions unit to the Polo Grounds, a New York City Housing Authority development. As this development was in a high crime area known for violence and drugs, the officers were patrolling the area to determine whether people other than tenants and invited guests were present, and were therefore trespassing. From a rooftop, police observed defendant coming in and out of the building several times, for short periods of time. An officer next observed defendant enter a car near the building, move something around, and then exit seconds later. Defendant left the area for a few minutes before returning to the front of the building. Two police officers exited their vehicle and approached defendant, stating, “[C]an I ask you a question?,” and defendant replied, “[W]hat?” During this time, defendant looked nervous, was looking around, was sweating, and kept grabbing his groin area. The officers asked defendant what he was doing in the building and whether he knew anyone in the building, and defendant told the officers that he was visiting his girlfriend at her apartment in the building. The officers asked defendant for identification, and defendant provided it. Defendant, in his testimony, stated that he informed the officers he had keys to the building, and that if the officers wanted, they could escort defendant to the apartment he had visited.

While defendant waited nearby with the officers, the police investigated his explanation by sending a third officer to the apartment that defendant claimed he was visiting. The police retained defendant’s identification¹ to verify if the occupant of the apartment knew defendant. The occupant of the apartment told the police that she did not know anyone by defendant’s name or recognize defendant from his identification. The third officer returned “a short time later” after leaving to investigate. Once defendant’s explanation for being in the building was proven false, there was probable cause to arrest defendant for criminal trespass.

Defendant was not seized when he provided his identification to the police so they could investigate his explanation for visiting the building. The police did not engage in any other coercive or intimidating conduct that would elevate the encounter to a seizure (see People v Shands, 85 AD3d 583 [1st Dept 2011], lv denied 17 NY3d 821 [2011]). Defendant’s identification was only used for a short time to investigate and defendant provided the identification voluntarily. Moreover, he was not in handcuffs or threatened during this time, and the officers did not draw their weapons.

This Court has repeatedly held that in a trespass situation, a police officer may conduct a brief investigation to ascertain whether a defendant’s explanation was credible, and this does not rise to a level three forcible detention or seizure (see e.g. People v Montero, 130 AD3d 474 [1st Dept 2015], lv denied 26 NY3d 970 [2015] [the officer’s request that the defendant remain in the lobby while the officers investigated whether the defendant was a resident or guest of the building was not a seizure]; People v Donald R., 127 AD3d 575 [1st Dept 2015], lv denied 25 NY3d 1162 [2015] [the officer’s request that the defendant step outside so they could talk to him did not elevate the encounter to a seizure]; People v Lozado, 90 AD3d 582 [1st Dept 2011], lv denied 18 NY3d 925 [2012] [the officer’s request for permission to accompany the defendant to the apartment he was visiting and the defendant agreeing to the request, did not subject the defendant to a level two inquiry]; People v Francois, 61 AD3d 524 [1st Dept 2009], affd 14 NY3d 732 [2010] [the officer asking the defendant to accompany him to a nearby wall of a subway station and physically grasping the defendant by his elbow, did not elevate the encounter to a seizure requiring reasonable suspicion]).

In determining the lawfulness of police encounters, New York has long followed the four-level test illustrated in People v De Bour (40 NY2d 210, 223 [1976]). To determine a seizure under De Bour, “[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom” (People v Bora, 83 NY2d 531, 535 [1994], citing People v Hicks, 68 NY2d 234, 240 [1986]). The dissent cannot point to any New York State case applying the De Bour standard to support the broad proposition that a seizure occurs whenever an officer retains a person’s identification. Although the dissent cites to several federal and out-of-state cases, those cases present different factual scenarios compared to the circumstances here, and are not controlling.

For example, the dissent cites to United States v Lambert, in which the Tenth Circuit held that the defendant was seized when agents of the DEA approached the defendant as he was heading to his car, asked for his driver’s license, and began questioning him (46 F3d 1064, 1068 [10th Cir 1995]). However, as the Tenth Circuit explained, the purpose for requesting the defendant’s driver’s license was to establish his identity, which the agents completed almost immediately after receiving the license, and therefore their 30-minute retention of the license constituted a seizure (id. at 1067, 1068 n 3). Here, in contrast, the officers’ retention of defendant’s identification was brief. There is no indication they did not intend to return it, assuming they could verify that defendant was a guest of a resident of the building where he was seen by the police. Moreover, the officers requested defendant’s identification to verify his contention that he lawfully was on the premises, something they could not ascertain without either the identification or bringing defendant with them to the apartment.

In United States v Battista, also cited by the dissent, the court focused on a number of factors which it concluded would have led the defendant to be seized (876 F2d 201, 204-205 [DC Cir 1989]). These factors included that the officers roused the defendant from his bed at 6:30 a.m., the defendant was in a state of undress because of the early morning, the defendant was in a city that was neither home nor his ultimate destination, the defendant was traveling on a train, and the defendant gave his driver’s license to the officers (id. at 204). Here, except for the brief retention of identification, none of these other factors are present.

Although the dissent contends it is not seeking to create a rule that a seizure occurs whenever a defendant’s identification is retained, the fair import of the dissent’s analysis is that retention of a defendant’s identification always constitutes a seizure. The cases cited by the dissent hold that the taking of identification is but one factor of several to be considered (United States v Glover, 957 F2d 1004, 1008-1009 [2d Cir 1992] [enumerated certain factors that might suggest a seizure occurred];² Battista at 205 [“Although none of these factors taken individually is necessarily determinative, due regard (to) the totality of the circumstances leads us to conclude that the ‘interview’ with (the defendant) constituted a ‘seizure’ ”]). Even if we were to consider the multi-factor test set forth in the cases cited by the dissent, we see no reason to find a seizure occurred here.

Defendant voluntarily gave the officer his identification³ and raised no objection when the police brought the identification to the apartment he had identified.⁴ Defendant even volunteered to be escorted by the officers to the apartment that he claimed he was visiting. Therefore, defendant knew the officers were going to verify his explanation for being in the building, and defendant raised no objection to the officers retaining his identification for this limited purpose. The dissent’s claim that the encounter became nonconsensual when a officer went upstairs with the identification has no support in the record.

Furthermore, the dissent’s position is irreconcilable with recent decisions of this Court. Surely, retaining a defendant’s identification that was provided voluntarily for a short time, is less of a limitation on his or her freedom than escorting a defendant with several officers to the apartment that he claimed he was visiting, which this Court found was not even a level two inquiry under De Bour, much less a seizure (see Lozado at 583). It also is less restrictive than police officers physically grasping a defendant by the elbow and guiding him to a wall, and having an officer ask defendant to accompany them away from the area (see Francois at 524-525). Likewise, a request by officers that a defendant step outside of a vestibule is more restrictive than the police action that occurred here (see Donald R. at 575).

Our decision in Montero stands for the proposition that in circumstances such as those here, it is not a seizure when a police officer asks a defendant to wait while they conduct a brief investigation of his reasons for being in a building. The dissent’s attempt to distinguish Montero by noting that identification was not specifically mentioned in the decision, unnecessarily narrows the holding (see Montero at 475). The dissent’s focus on whether defendant here could have walked away without his identification ignores the fact that defendant gave the item to the officers in the first instance, so that they could briefly investigate his alleged explanation for his presence in the building. The instant case does not present a situation where the police take someone’s identification from them over his or her objection or by force, which would raise different legal issues.

Accordingly, because we conclude that defendant was not seized until the officers were unable to verify his explanation, at which point probable cause existed, we need not reach any of the People’s alternative arguments.

Concur—Richter, J.P., Manzanet-Daniels, Feinman and Kapnick, JJ.

1 . The record is unclear as to what type of identification defendant gave the police.

2 . In Glover, the officers took the defendant to a security room for further questioning and retained his identification (957 F2d at 1009). Glover does not support a holding that the retention of identification alone is enough to constitute a seizure.

3 . The dissent suggests that the identification provided by defendant was a document of significant importance. However, the record does not show what the identification was, or whether it was easily replaceable.

4 . Contrary to the dissent’s position, the fact that defendant voluntarily gave his identification to the officers, and that they subsequently took it upstairs, does not involve a legal issue that required preservation. Rather, it is a fact established by the hearing testimony, and is consistent with our analysis that the encounter does not rise to the level of a forcible seizure until the officers confirmed defendant was trespassing. We also note that the voluntary aspect of defendant’s provision of his identification was alluded to by the prosecutor in her closing argument at the suppression hearing.