People v. Branch

• Decision Date: 17 February 1987
• Citation: 512 N.Y.S.2d 642,134 Misc.2d 705
• Parties: The PEOPLE of the State of New York v. Alverado BRANCH, Defendant.
• Court: New York Supreme Court

Page 642

512 N.Y.S.2d 642

134 Misc.2d 705

The PEOPLE of the State of New York v. Alverado BRANCH, Defendant.

Supreme Court, Trial Term Bronx County, Part 73.

Feb. 17, 1987.

Mario Merola, Dist. Atty. by Joseph Petrizzo, Asst. Dist. Atty., for the People.

Barry Weinstein, New York City, for defendant.

JOSEPH A. MAZUR, Justice.

The defendant in this case is charged with criminal possession of a weapon in the third degree.

A hearing was held before this Court, pursuant to defendant's motion to suppress physical evidence. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and reaches the following conclusions of law:

On December 24, 1985, at approximately 2:30 a.m., Police Officer Erosa and his partner observed a vehicle with Massachusetts license plates make a right turn on a red light at Walton Avenue and 181st Street.

The officers stopped the vehicle, pursuant to the traffic violation they had observed. As they approached the vehicle, they saw Andre Jackson, who was seated in the rear of the vehicle put his hand into his coat pocket. The officers called out for him to keep his hands where they could see them. At that point, the car door opened and Jackson ran out, reaching his hand into the left side of his coat. After he had run approximately fifteen (15) feet, Jackson was stopped by Officer Erosa, who felt what appeared to be a gun in a holster. After removing what in fact was a gun from Jackson's pocket, the officer brought him back to the car, where his partner had also recovered a gun from the driver of the vehicle.

Defendant, who had been sitting in the front passenger's seat, was then ordered out of the car and frisked by Officer Erosa. A gun was recovered from defendant's coat pocket at that time.

CONCLUSIONS OF LAW

The decision in this case turns solely on questions of the law of search and seizure, since the facts, as outlined above, are essentially not in dispute. Counsel have cited the two lines of cases arguably applicable to this matter, which makes the decision herein a close one.

The line of cases cited by defense counsel stand for the proposition that mere presence of an individual in proximity to others who are independently suspected of criminal activity does not give rise to probable cause to search that individual.

The authority relied upon by the District Attorney, on the other hand, are those cases which elucidate the special concerns involved where investigating officers confront possible weapon possession by the occupants of a vehicle.

In beginning its analysis, this Court notes the recognized principle that the inference of guilt by association is impermissible. A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person (Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238; People v. Martin, 32 N.Y.2d 123, 343 N.Y.S.2d 343, 296 N.E.2d 245; People v. Batista, 68 A.D.2d 515, 417 N.Y.S.2d 714).

The cases cited by defense counsel both demonstrate this proposition. In People v. Ballejo, 114 A.D.2d 902, 495 N.Y.S.2d 75, the Court held that the fact that defendant was in close proximity to a woman who had been seen hiding a cocaine filled pouch, and that defendant walked away with her did not permit the inference that he was suspect in criminal or narcotics related activity for the purpose of justifying a search. In People v. Batista, supra, no probable cause was found for the arrest of defendants who were placed under surveillance after leaving a novelty shop where they purchased holsters and were seized after an officer saw a gun in their companion's hands, but they themselves had not engaged in any overt criminal activity.

Our Appellate Courts are clearly in agreement that one cannot be stopped or arrested for merely being in the company of another (People v. Griffith, 63 A.D.2d 138, 142, 406 N.Y.S.2d 777, 779; People v. Trapier, 47 A.D.2d 481, 483, 367 N.Y.S.2d 276, 277). In People v. Martin, supra, the New York Court of Appeals stated that where the arresting officer did not see the defendant engage in any criminal activity and where the defendant was merely in the company of others who were engaged in a narcotics transaction, the conviction was reversed and the complaint dismissed. In People v. Monsanto, 73 A.D.2d 576, 577, 423 N.Y.S.2d 476 the Court granted a motion to suppress and dismissed the indictment stating that: "Monsanto (the defendant) was not observed engaging in any overt criminal activity and was placed in custody merely for being in the vicinity of what the officer thought was the scene of a crime in progress. This mere presence in the area was insufficient to constitute probable cause to detain him."

After careful reading of the above-mentioned cases and others in this area, the Court notes that the holdings cited must be analyzed in the factual contexts which gave rise to them. Almost without exception, these cases dealt with street encounters where the suspected crimes involved either narcotics transactions or passive weapons possession. In none of these cases was a possible threat to the officer's safety seen as a factor in the Court's decisions.

In fact, in cases which involve street encounters, but which come to a different result from those cited above, the determining factor appears to be such a perceived danger. In People v. Jenkins, the police were engaged in arresting a man whom they had more than probable cause to believe to be an armed bank robber in a high crime area. Defendant was the suspect's sole companion and the police suspected that he may have been an accomplice. The Court stated that: "Quite apart from that suspicion, in the circumstances of this case, the police had a right to assure their own safety during the arrest and to prevent possible interference with the arrest. To that end, they were justified in frisking the defendant as well as the identified robber to determine whether defendant was armed, and if armed, to disarm him. As it turned out, both men were armed with loaded pistols. In the exigent circumstances with which they were confronted, the police acted reasonably." (People v. Jenkins, 87 A.D.2d 526, 448 N.Y.S.2d 9.)

In contrast to these factual settings outlined above, and the resulting legal conclusions, stands the line of cases dealing with vehicular stops and subsequent searches.

The factor of safety is clearly the key to this line of cases which the Court finds to be most applicable to the question before it. Defendant in this case has not claimed that the investigatory stop of the motor vehicle was unlawful. It is well settled that a traffic violation (in this case, making a turn on a red light) may form the predicate for a police stop. (People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39). Defendant does argue, however, that the propriety of detaining an automobile passenger should be measured by the same standard used to determine the propriety of all intrusions on a citizen's liberty...