People v. Bora

• Decision Date: 30 March 1993
• Parties: The PEOPLE of the State of New York, Respondent, v. Antonio BORA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 437

595 N.Y.S.2d 437

191 A.D.2d 384

The PEOPLE of the State of New York, Respondent, v. Antonio BORA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 30, 1993.

Before CARRO, J.P., and MILONAS, ROSENBERGER and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Rothwax, J., at suppression hearing; Herbert Altman, J., at plea and sentence), rendered April 26, 1990, convicting the defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from two to four years, affirmed.

After the defendant was indicted for the crime of criminal possession of a controlled substance in the fourth degree, a hearing was held in response to his motion to suppress physical evidence. Police Officer Blake Stuller testified that at 6:58 PM on June 1, 1989, he and his partner, Officer Minniter, received a radio report of a male black, wearing red and blue, possessing weapons and selling drugs at the corner of 148th and St. Nicholas Avenue, an area known by the officers to be a drug-prone location.

Within one minute of receiving the report, the officers arrived at the location indicated and saw approximately ten people in the area, including the defendant, who was the only one wearing a red shirt and blue pants at the corner described. Stuller, who was in uniform, got out of the patrol car to approach the defendant and the defendant began to walk away. Stuller told him to stop, but instead the defendant ran, and, as he fled, threw a brown paper bag containing 101 vials of crack cocaine on the ground. The officers pursued the defendant who was then arrested.

The Supreme Court, concluding that the officers had acted properly and that the defendant had abandoned the contraband, denied his motion to suppress. The defendant thereafter pleaded guilty to the crime of criminal possession of a controlled substance in the fifth degree.

An anonymous tip which gives a general description and location of an individual with a gun furnishes the police with the common-law right to inquire (see, People v. Gaines, 159 A.D.2d 175, 177, 559 N.Y.S.2d 524, appeal withdrawn, 76 N.Y.2d 986, 563 N.Y.S.2d 774, 565 N.E.2d 523). This common-law right to inquire is "activated by a founded suspicion that criminal activity is afoot", and entitles 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 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; see, People v. Hollman, 79 N.Y.2d 181, 191-192, 581 N.Y.S.2d 619, 590 N.E.2d 204). However, "only where the anonymous information is 'so specific and congruous' with that which is actually encountered that the reliability of the tip may be reasonably assumed, or when the information provided by the tip is considered in conjunction with the attendant circumstances and exigencies, that more intrusive police action may be justified" (People v. Gaines, supra, at 177, 559 N.Y.S.2d 524, citing People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645; People v. Bond, 116 A.D.2d 28, 499 N.Y.S.2d 724, lv. denied, 68 N.Y.2d 767, 506 N.Y.S.2d 1050, 498 N.E.2d 152). In order forcibly to stop and detain an individual, the officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime (People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113; People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823, 606 N.E.2d 951; People v. Hollman, supra; People v. De Bour, supra).

After receiving the radio report, the officers arrived at the known drug location within one minute. Although approximately ten people were in the area, only the defendant was wearing the clothing described. He was also observed standing on the corner indicated in the report. While the Court of Appeals has held that a pat down is permissible under such circumstances (see, People v. Salaman, 71 N.Y.2d 869, 527 N.Y.S.2d 750, 522 N.E.2d 1048), at the very least, the officers herein had a common-law right to inquire, entitling them to interfere with the defendant to the extent necessary to gain explanatory information (People v. De Bour, supra). However, as they approached, without guns drawn, the defendant began to walk away. It was only after he started to leave that Officer Stuller called to him to stop. Instead of complying with this request, the defendant fled.

The police radio transmission which provided detailed information regarding a man with a gun and selling drugs, the officers' quick response time, their observation of the defendant at the specified location, of being the only person wearing clothing matching the description broadcast in the report, together with the defendant's attempt to flee when he saw the officers before they questioned him, his refusal of their request to stop and then his flight, all combined to provide the officers with the reasonable suspicion necessary to pursue the defendant (People v. Martinez, supra; People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687; People v. Wider, 172 A.D.2d 573, 568 N.Y.S.2d 141; People v. Jackson, 172 A.D.2d 561, 567 N.Y.S.2d 887, lv. denied, 78 N.Y.2d 1077, 577 N.Y.S.2d 240, 583 N.E.2d 952; cf., People v. May, supra). "[T]he level of police intrusion was an appropriate response to the observations and beliefs of the officers involved." (People v. Leung, supra, 68 N.Y.2d at 736, 506 N.Y.S.2d 320, 497 N.E.2d 687; People v. De Bour, supra).

Since the initial approach and subsequent pursuit and detention of the defendant constituted appropriate, lawful police conduct, the seizure of the bag containing the vials of cocaine which the defendant discarded during flight was also lawful (People v. Martinez, supra; People v. Leung, supra). After recovering the vials of cocaine, the police had probable cause to arrest the defendant (id.).

Accordingly, the defendant's motion to suppress physical evidence was properly denied.

All concur except ASCH, J., who concurs in a separate memorandum as follows:

ASCH, Justice (concurring).

The essential issue in this case is whether a request by a policeman to "stop" made to an individual who begins to walk away after the police approach to question him pursuant to their common-law right of inquiry, constitutes a "seizure" of that individual in violation of his rights under article 1, § 12 of the New York State Constitution and the provisions of Criminal Procedure Law 140.50, and the common law of this state (see, People v. Hollman, 79 N.Y.2d 181, 194-195, 581 N.Y.S.2d 619, 590 N.E.2d 204).

Under the facts of this case, the action by the police did not constitute a seizure under the Fourth Amendment of the U.S. Constitution. While the United States Supreme Court has pointed out that a seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen" (Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889), it has narrowed the definition of "seizure" to exclude a police officer's pursuit of an individual, even assuming the activity constituted a "show of authority" asking the individual to halt, because the individual did not comply with that request until he was actually tackled by the pursuing officer. Accordingly, the Supreme Court held that a motion to exclude evidence of cocaine abandoned by a suspect, while he was running, was properly denied (California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690). The facts in the instant case are almost "on all fours" with those in Hodari D. The officer asked the defendant to "stop" as he walked away, but the defendant did not comply with that request. Instead, he began to run away. The officer followed him and during this pursuit, and before the officer apprehended the defendant, the defendant abandoned the cocaine. Accordingly, there has been no violation of defendant's Fourth Amendment rights in this case.

However, it is necessary to continue the inquiry. In discussing this Federal approach and contrasting it with the seminal New York case of People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the Court of Appeals has written:

De Bour represents the culmination of a number of State common-law cases that provided a framework for the evaluation of police-civilian encounters (see, e.g., People v. Cantor, supra [36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872]; People v. Ingle, 36 NY2d 413 [369 N.Y.S.2d 67, 330 N.E.2d 39]; People v. Rosemond, supra [26 N.Y.2d 101, 308 N.Y.S.2d 836, 257 N.E.2d 23]; People v. Rivera, 14 NY2d 441 [252 N.Y.S.2d 458, 201 N.E.2d 32]. In De Bour, constitutional law and common law both played a part in the articulation of the four-part test. Although we stated that "constitutional considerations do not disappear" when police encounters fall below the level of a seizure ( People v. De Bour, supra [40 N.Y.2d], at 217 [386 N.Y.S.2d 375, 352 N.E.2d 562], we did not rest our analysis squarely upon the language of either the Federal or State Constitution. Rather, we noted that "[t]he basic purpose of the constitutional protections against unlawful searches and seizures is to safeguard the privacy and security of each and every person against all arbitrary intrusions by government. Therefore, any time an intrusion on the security and privacy of the individual is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity, the spirit of the Constitution has been violated" (id., at 217 [386 N.Y.S.2d 375, 352 N.E.2d 562]. To some extent, then, our holding in De Bour was not compelled by the specific language of either the State or the Federal Constitution. Rather, it reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the...