People v. Howard

147 A.D.2d 177, 542 N.Y.S.2d 536, 1989 N.Y. App. Div. LEXIS 7382
Appellate Division of the Supreme Court of the State of New York·Decided June 8, 1989·Published·Cited by 30 cases

Opinions

OPINION OF THE COURT

Ellerin, J.

In this case we are once again called upon to determine the appropriateness of particular police conduct in light of the constitutional right which every individual has to be secure against unreasonable searches and seizures on our public streets and elsewhere.

The facts are relatively simple and not in dispute. At approximately 10:00 p.m. on the evening of November 4, 1985, Police Officers Joseph Thomas and Jerome Canzaneri were on duty, seated in a marked patrol car in the vicinity of 116th Street and Lenox Avenue, on the lookout for traffic violators. From a distance of about three quarters of a block away, the officers observed the defendant Howard who was standing on the northeast corner of 116th Street and Lenox Avenue, near the subway entrance located there. During the next 2 or 3 minutes, the police officers watched Howard as he looked up and down Lenox Avenue and 116th Street, up and down the subway stairs watching people come out of the station, and thereafter returning to a position near the wall at the corner. Two or three times during this period, he placed his right hand inside the left side of his jacket “as though he were adjusting something”.

Based on nothing beyond these observations, and the fact that this was a location of frequent robberies, the police officers decided to approach the defendant. As the patrol car drove towards him, the defendant walked away, whereupon the police officers shouted “Halt. Police” and told him they wanted to ask him a few questions. Defendant stopped, turned to face them, raised his arms, and stated words to the effect that he hadn’t done anything. The officers then walked toward him. Both officers testified that the defendant was holding his left arm in a rigid position against his left side, and that as they approached they noticed a bulge of approximately 3 to 5 inches in his left front jacket pocket. While the officers’ testimony indicated that the bulge had no distinct shape or [179]*179outline, nor was identifiable in any other way as a gun, upon reaching defendant, Officer Thomas proceeded to pat the bulge, which he stated felt like a revolver. The officers then drew their guns, pushed defendant against the car, and frisked him, recovering the gun in issue.

As the dissent properly notes, the common-law right to inquire is activated by a founded suspicion that criminal activity is afoot and permits a police officer to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (People v De Bour, 40 NY2d 210). The dissent concludes that here "the police observed the defendant for several minutes and reasonably found that his conduct was suspicious” and therefore had a right to approach him and inquire.

At the outset, we cannot agree that the circumstances observed by the officers rose to the level of reasonable suspicion. "Reasonable suspicion” has been defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. (People v Sobotker, 43 NY2d 559; People v Cantor, 36 NY2d 106.) "The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere 'hunch’ or 'gut reaction’ will not do”. (People v Sobotker, supra, at 564.) Nor will innocuous behavior alone generate a founded or reasonable suspicion that a crime is at hand. (People v De Bour, supra, at 216.)

Here, defendant’s behavior during the short time he was being observed was innocuous or, at best, equivocal. He was standing near a subway entrance, at 10:00 p.m., looking down the subway stairs and up and down the streets, and then moving to stand near the wall at the corner. He was neither causing any disturbance, nor making any furtive or threatening gestures which might indicate that criminal activity was afoot. On the contrary, his conduct was consistent with the actions of a man waiting for his wife or a friend to exit the subway, as counsel argued before the hearing court, and who was seeking to secure his own safety at that time of night. The only other fact observed by the police was defendant twice reaching inside his jacket pocket as though he were adjusting something. This innocuous movement was readily susceptible of an innocent interpretation. It was an action reflective of adjusting one’s clothing or suspenders or the nervous touching of one’s pocket wallet. We find that this conduct, either alone or in conjunction with defendant’s [180]*180equally innocuous movements near the subway entrance, would not constitute a founded suspicion that criminal activity was afoot, the necessary predicate for the type of limited interference, short of seizure, incidental to the common-law right of inquiry. (See, People v Carrasquillo, 54 NY2d 248, 252.)

While these officers undoubtedly had, as the trial court found, "some objective credible reasons for requesting information even absent evidence of criminality”, this merely provided them with a basis for the first level "minimal intrusion of approaching to request information” (People v De Bour, supra, at 223). The fact that defendant walked away when he saw the patrol car approach, did not provide a basis for any greater level of intrusion. (People v Howard, 50 NY2d 583.)

The conduct of the police officers in this situation can, by no reasonable standard, be held to have been justified in its inception or reasonably related in scope to the circumstances which rendered its initiation permissible. (People v De Bour, supra, at 215.) Having observed defendant for a brief period engage in innocuous, or at most equivocal, behavior which provided them with an objective credible reason to approach and request information, these officers made no such attempt but, instead, immediately and peremptorily stopped and detained defendant by virtue of the authority of "the badge”. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment * * *. This is true whether a person submits to the authority of the badge or whether he succumbs to force”. (People v Cantor, 36 NY2d 106, 111.)

The actions of the police officers in issuing an authoritative directive to defendant to "Halt”, with which he immediately complied, followed by the officers approaching, and without any preliminary inquiry, taking defendant’s arm and subjecting him to a frisk, constituted nothing less than a forcible seizure. (See, People v Silvestre, 119 AD2d 601.) This police conduct would have been inappropriately intrusive even if defendant’s actions prior to their encounter could be said to have provided a founded suspicion that criminal activity was afoot thereby activating the second level of permissible police intrusion, the common-law right of inquiry. (See, People v Cornelius, 113 AD2d 666; People v Marine, 142 AD2d 368; People v Roberts, 94 AD2d 237; People v Silvestre, supra.)

[181]*181To justify the third level type of forcible stop and detention which took place here the police officers must, at the inception, have entertained a reasonable suspicion that Howard had committed, was committing or was about to commit a felony or misdemeanor (CPL 140.50 [1]).

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People v. Howard, 147 A.D.2d 177, 542 N.Y.S.2d 536, 1989 N.Y. App. Div. LEXIS 7382 (N.Y. Ct. App. 1989).

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