In re Darryl C.

• Decision Date: 26 June 2012
• Citation: 98 A.D.3d 69,2012 N.Y. Slip Op. 05118,947 N.Y.S.2d 483
• Parties: In re DARRYL C., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 69

947 N.Y.S.2d 483

2012 N.Y. Slip Op. 05118

In re DARRYL C., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Supreme Court, Appellate Division, First Department, New York.

June 26, 2012.

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for presentment agency.

PETER TOM, J.P., KARLA MOSKOWITZ, ROSLYN H. RICHTER, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ.

TOM, J.P.

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50[1]; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ) and then “ knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (CPL 140.50[3]; People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996] ). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (N.Y. Const. art. I, § 12; U.S. Const. 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v. Holland, 18 N.Y.3d 840, 938 N.Y.S.2d 839, 962 N.E.2d 261 [2011, Lippman, Ch. J., dissenting], the Chief Judge took issue with his own Court's dismissal of the appeal as “not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters” ( id. at 845, 938 N.Y.S.2d 839, 962 N.E.2d 261). He stated:

“When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve ... This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime” ( id.).

In a footnote, Chief Judge Lippman made reference to Floyd v. City of New York, 813 F.Supp.2d 417 [S.D.N.Y.2011], in which the United States District Court noted, “[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year” ( id. at 422 [internal quotation marks omitted] ). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department's stop-and-frisk program (Floyd v. City of New York, 2012 WL 1868637, 2012 U.S. Dist. LEXIS 68676, [S.D.N.Y., May 16, 2012, No. 08–Civ–1034 (SAS) ] ).

While the dissent's opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14–year–old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court's ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime.

The facts herein, even crediting the officer, prohibit the search undertaken in this case. At a combined Wade/Dunaway hearing, the testimony of Police Officer Orlando Colon, the arresting officer, established that on February 18, 2010, at about 11:30 a.m. he was on uniform patrol with three other officers in an unmarked van in the vicinity of 40 West Tremont Avenue, Bronx County. As a result of tensions between two rival youth gangs, multiple shootings had occurred in the area, the two most recent within four blocks of the officer's location. The context of gang violence explained the officer's presence at that location. From the van, at a distance of about 10 feet, Colon observed the 14–year–old appellant standing alone on the sidewalk “examining an object with his right hand and in his left hand he had a cell phone.” Appellant was not a suspect, nor was he associated with any gang activity. Although it was broad daylight, the officer could not describe or identify the object appellant was looking at, except to state that it was black and held in appellant's right palm near his waist. Then, Colon testified, appellant “looks up, he sees the van. I'm assuming he saw it was a police van.” Colon continued, “He stared at the van. He stopped, put the object in his right pocket and continued to walk and ... handle the cell phone.” At this point, this unexceptional activity was the extent of the officer's observations. Colon then left the vehicle, approached appellant and engaged him in conversation. Colon learned that appellant had come from Queens to visit his stepbrother who, the officer surmised, lived in a building where one of the rival youth gangs was concentrated. Colon then asked appellant what he had in his right hand, and appellant responded that it was his wallet. Colon testified that “[d]uring the course of the conversation he was stuttering a little bit. A little bit nervous.” I will depart from a strict reading of the evidence to this limited extent: a 14–year–old boy confronted by a police officer might be “a little bit nervous” without that fact raising a red flag. Colon continued that “[m]y suspicion didn't heighten until I asked him what he had in his right hand and he told me it was his wallet that he had in the back of his pants packet. The answer was a little deceiving to me.” Colon testified that, having observed appellant put the object into his right coat pocket, not his back pocket, “I told him I'm not interested what he had in his back pocket. I'm interested what he put in his coat pocket.”

When appellant “attempted to go into the back pocket” to retrieve his wallet, Colon told him, “[D]o me a favor. Don't put your hands in your pocket,” with which appellant complied. Colon continued, “At this point I tapped his right jacket pocket. I felt it was a hard object,” although there was no indication that the object was any kind of weapon. Colon added, “At this point I repositioned myself to get an advantage. I go behind him. As I go behind him I put my right hand behind him. I tapped the pocket one more time and then I put my hand in the pocket.” Colon's “hand went right into the pistol grip of the firearm.”

Family Court denied appellant's motion to suppress the firearm, stating that “Officer Colon reasonably believed [appellant] to be armed and had a legitimate concern for his own safety. As such, he was justified in patting down the jacket pocket into which he saw [appellant] place a black object.” The court concluded, “[O]nce he felt the grip of a gun, Officer Colon then had a reasonable suspicion that [appellant] was involved in a crime, which authorized the officer to detain him.”

The Family court's conclusion that the discovery of the weapon affords reasonable suspicion of involvement in a crime reverses the necessary order of the analysis ( De Bour, 40 N.Y.2d at 215–216, 386 N.Y.S.2d 375, 352 N.E.2d 562). As noted in People v. Rivera, 14 N.Y.2d 441, 447, 252 N.Y.S.2d 458, 201 N.E.2d 32 [1964],cert. denied379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568 [1965], “[t]he question is not what was ultimately found, but whether there was a right to find anything” ( see also Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] [“that a search unlawful at its inception may be validated by what it turns up” is a proposition that has been consistently rejected] ).

Family Court did not conduct the rigorous analysis required by People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976], supra to justify each escalation in interference with appellant's freedom of movement. In De Bour, the Court of Appeals provides four levels of permissible official interference with an individual's liberty. The minimal intrusion of approaching a person to request information requires only “some objective credible reason” to approach the individual that does not necessarily implicate criminal conduct (40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). The second level of interference is the common-law right to inquire, triggered by a “founded suspicion” that criminal activity is afoot, which permits interference with an individual “to the extent necessary to gain explanatory information, but short of a forcible seizure” ( id.). The third level is a forcible stop and detention, activated by a reasonablesuspicion that a specific individual “has committed, is committing or is about to commit a felony or misdemeanor” ( id.). Under the third level of interference, an officer making a forcible stop has authority to conduct a protective frisk of the individual if there is a reasonable threat of...