People v. Giles

• Decision Date: 05 September 1996
• Citation: 223 A.D.2d 39,647 N.Y.S.2d 4
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald GILES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 4

647 N.Y.S.2d 4

223 A.D.2d 39

The PEOPLE of the State of New York, Respondent, v. Ronald GILES, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Sept. 5, 1996.

Isaac D. Hurwitz, of counsel (Daniel L. Greenberg, attorney), New York City, for defendant-appellant.

Jonathan J. Faust, of counsel (Ilisa T. Fleischer, on the brief, Robert M. Morgenthau, attorney) New York City, for respondent.

Before MURPHY, P.J., and MILONAS, WALLACH, ROSS and NARDELLI, JJ.

MILONAS, Justice.

We are presented with yet another permutation of a late-night street confrontation between the police and a private citizen, an unexpected encounter occurring on routine patrol that resulted in the discovery of a gun in defendant's possession. These particular events unfolded in the following fashion. Shortly after midnight on a hot August night, three plainclothes police officers driving westbound on 145th Street in an unmarked car noticed defendant walking westbound in the middle of the two-way street, between the lanes of opposing traffic. He was wearing a heavy winter jacket that reached almost to his knees (the same one he was wearing at the late November suppression hearing). They observed him reach under the jacket and make a motion as if adjusting something in the rear of his waistband. Seeing this, Officer Moran, the driver, continued westbound until he was almost alongside defendant, who turned, looked at the officers and then quickly crossed the street, narrowly avoiding being hit by a vehicle proceeding eastbound. Defendant proceeded to walk along a row of parked cars, still in the street. Officer Moran drove across the lane of eastbound traffic and stopped the car, facing the wrong way. As he jumped out of the car and announced "police," defendant put his hand towards the rear of his waistband. Officer Moran immediately reached out, grabbed defendant's hand and felt a gun in the rear waistband under the jacket. He recovered a loaded .38 caliber revolver.

In determining whether, from the inception of the police conduct and at each ensuing stage of the encounter, the degree of intrusion was warranted, we must apply the four-tier test articulated in People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 and reaffirmed in People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204. In order to approach an individual for the purpose of requesting information, a police officer must possess an "objective, credible reason, not necessarily indicative of criminality" (People v. Hollman, supra, at 184, 581 N.Y.S.2d 619, 590 N.E.2d 204). As clarified by Hollman, the information requested might include identification, destination and the reason for the individual's presence in the area; Hollman made plain that the information sought is not meant to be wholly unrelated to the individual and his or her circumstances, as the nature of this inquiry was sometimes misconstrued after De Bour (79 N.Y.2d at 189, 581 N.Y.S.2d 619, 590 N.E.2d 204).

Beyond this first tier of permitted police contact is the common-law right of inquiry, which requires "a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion" (People v. De Bour, supra, at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). The third tier, authorizing a forcible stop and detention, requires that the police have a "reasonable suspicion that a particular person was involved in a felony or misdemeanor" (People v. Hollman, supra, at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204). At the fourth tier, where the police have probable cause to believe a person has committed a crime, they may make an arrest (People v. Hollman, supra, at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204).

Measuring this encounter against the four-tiered test, we conclude that defendant's conduct was sufficient to entitle Officer Moran to approach defendant and request information (People v. Hollman, supra ). Defendant was first observed walking down the middle of a two-way street, i.e., between lanes of opposite-moving traffic. This constitutes more than "odd" behavior, which alone may not justify police intrusion (People v. Cornelius, 113 A.D.2d 666, 497 N.Y.S.2d 16). It is, in fact, dangerous behavior, both to the pedestrian and those driving. The fact that defendant was wearing a long winter coat on a hot summer night, standing alone, is no more than "odd" behavior, but, when taken together with the motion of adjusting an object in the rear of his waistband--where, it has been recognized time and again, a handgun is often hidden (People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645; Matter of Clarence W., 210 A.D.2d 71, 72, 619 N.Y.S.2d 274, lv denied 86 N.Y.2d 709, 634 N.Y.S.2d 443, 658 N.E.2d 221; People v. Jenkins, 209 A.D.2d 164, 165, 617 N.Y.S.2d 766; People v. Montague, 175 A.D.2d 54, 55, 572 N.Y.S.2d 310)--it assumes another possible meaning, i.e., that the inappropriate garb is worn for the very purpose of hiding something. These factors together gave rise to an objective, credible reason, not necessarily indicative of criminality, for Officer Moran to approach defendant.

An objective, credible reason may be predicated upon conduct as minimal as walking in a known drug location, holding a "dark, opaque plastic bag" close to one's body (People v. Diaz, 180 A.D.2d 415, 416, 579 N.Y.S.2d 659, affd 80 N.Y.2d 950, 590 N.Y.S.2d 871, 605 N.E.2d 358). In Diaz, as here, defendant argued that there was no "founded suspicion that criminal activity was afoot" to justify a common-law right of inquiry. However, there was no actual inquiry in either case because of each defendant's response to the approach by the police. In Diaz, too, the police first followed defendant in their car, making a U-turn to stay with him as he crossed the street.

We have similarly found an objective, credible reason to approach and seek information based only upon an observation that a defendant, standing with several others at a known drug location, began to walk away as an unmarked...