People v. Grant

• Decision Date: 28 October 1975
• Citation: 85 Misc.2d 70,379 N.Y.S.2d 221
• Parties: PEOPLE of the State of New York v. Lester GRANT.
• Court: New York Supreme Court

Page 221

379 N.Y.S.2d 221

85 Misc.2d 70

PEOPLE of the State of New York v. Lester GRANT.

Supreme Court, Criminal Term, Kings County, Part 34.

Oct. 28, 1975.

Eugene Gold, Dist. Atty., Kings County, for the People; John Miller, Asst. Dist. Atty., Brooklyn, of counsel.

Stephen M. Zeitlin, Brooklyn, for defendant.

JACOB LUTSKY, Judge.

This is a motion to suppress the alleged possession of a dangerous weapon and for a Huntley hearing with respect to a statement allegedly made by the defendant Lester Grant.

A hearing was held at which the arresting officer was the only witness to testify.

The court makes the following findings of fact.

Detective Butler, riding with his partner in an unmarked car, observed three youths on the corner of Nostrand Avenue and Lexington Avenue, Brooklyn, New York. He saw one of the youths approach and wave at a moving taxicab proceeding towards Quincy Street and Nostrand Avenue where the cab stopped for a red light. The other two youths, one of whom was the defendant, ran along the sidewalk in the same direction, also waving their hands. Before the first youth reached the taxi, the light changed and the taxi proceeded to drive away. The two youths had started to leave the sidewalk but returned thereto when the cab drove away.

At no time did any of the youths speak to the operator of the vehicle, nor was there any evidence that he was aware of their existence at any time.

Detective Butler then stopped the three youths and identified himself as a police officer.

One of the youths, other than the defendant, then made a motion with his hand while turning away from Detective Butler who thereupon frisked that person and found a gun on him.

At this point he arrested the youth with the gun and the other youth for attempted robbery of the cab and possession of the gun. He did not place the defendant under arrest for this alleged incident, but stated he had another complaint against the defendant for which he was the subject of an investigation, and had him come to the precinct.

Detective Butler specifically stated he was not arresting the defendant for his alleged attempted robbery and gun possession, but was merely questioning him as to other criminal activities. However, at no time did he ever question the defendant as to 'other criminal activities.' His questioning was directed solely as to the crimes herein stated.

Detective Butler did advise the defendant, a sixteen-year-old youth, at the station house of his 'Miranda' rights and then questioned him solely on the crime of attempted robbery herein. The defendant's mother was present at the precinct, and Detective Butler stated that although he was aware of her presence, he did not allow her to be present during the questioning as he was not legally obligated to do so.

Detective Butler then left the defendant for some time, and when he returned, he advised the defendant his statement was not the same as that which the other two youths gave him.

Whereupon, he again gave the defendant his 'Miranda' warnings and obtained another statement from the defendant which was substantially similar to the other two youths' statement as recited to the defendant by Detective Butler. While the defendant had been in police custody all this time, he was now formally advised of his arrest for the crimes alleged in the indictment herein.

Detective Butler also testified that at no time was the defendant in possession of a gun, knife, or any other weapon.

The primary question that arises concerns the justification of Detective Butler's stopping of the defendant.

The arresting officer stated that he observed one youth run towards a taxi while waving his hands; at the same time two others were running on the sidewalk in the same direction waving their hands as well. The defendant was one of the youths running on the sidewalk.

The stopping of a person must be based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.' (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.)

'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.' (People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 515, 324 N.E.2d 872, 876.)

Weighing the evidence herein, this court finds that the facts fall short of the standards for reasonable suspicion and probable cause as set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 and Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833, cert. den., 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448. Good faith and bare suspicion is not enough (People v. Brown; People v. Corrado; People v. Brown, infra; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134).

On the record before me, I find that the initial stop of the defendant to have been unjustified (Terry v. Ohio, supra; People v. Cantor, supra).

The mere running towards a cab with waving hands is not sufficient to raise the arresting officer's hunch to the level of reasonable suspicion. 'Absent an articulable foundation for the entrenchment upon individual liberty and privacy . . . police suspicions remain merely 'hunches' and are not reasonable' (People v. Johnson, 30 N.Y.2d 929, 930, 335 N.Y.S.2d 684, 685, 287 N.E.2d 378, 379) within CPL 140.50 (People v. Tinsley, 48 A.D.2d 779, 369 N.Y.S.2d 142).

A hunch or conclusion based on good faith may not be the basis for intrusion into a citizen's right to to free of illegal search and seizure (Terry v. Ohio, supra; People v. Whetstone, 47 A.D.2d 995, 366 N.Y.S.2d 752).

It is well settled that to sustain an arrest or seizure there must be more than mere suspicion.

It is important to note that there is no evidence that the taxi driver was aware of the presence of these youths, let alone any intention to stop him.

Where the observed acts of the defendant were susceptible of various innocent interpretations, . . . where the behavior was at most equivocal and suspicious, and where there was no supplementation by any additional behavior raising the level of inference from suspicion to probable cause . . . (People v. Russell, 34 N.Y.2d 261, 264, 357 N.Y.S.2d 415, 417, 313 N.E.2d 732, 734; People v. Brown, 32 N.Y.2d 172, 174, 344 N.Y.S.2d 356, 357, 297 N.E.2d 94, 95; People v. Brown, 24 N.Y.2d 421, 423, 301 N.Y.S.2d 18, 19, 248 N.E.2d 867, 868; People v. Corrado, 22 N.Y.2d 308, 311, 313, 315, 292 N.Y.S.2d 648, 650, 651, 239 N.E.2d 526, 527, 529)' (People v. Davis, 36 N.Y.2d 280, at p. 282, 367 N.Y.S.2d 256, at p. 257, 326 N.E.2d 818, at p. 819), more must be shown to have stopped this defendant (see also, People v. Esposito, 37 N.Y.2d 156, 371 N.Y.S.2d 681, and People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508). Although a defendant's conduct may be unusual, it is not sufficient to be deemed criminal bahavior or sufficient basis for a finding of probable cause (People v. Lakin, 21 A.D.2d 902, 251 N.Y.S.2d 745).

In addition, there is no evidence that the defendant attempt to flee when the officer approached (cf. People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438; People v. Vassallo, 46 A.D.2d 781, 360 N.Y.S.2d 450).

Accordingly, the unlawful stopping of this defendant and taking him into custody has unveiled the question of whether or not there has been an initial tainting of the defendant's subsequent statements to the arresting officer.

As hereinafter discussed, it is noted at this time that the arresting officer never questioned the defendant regarding the incident for which he took the defendant into custody.

The issue now confronting this court is whether the defendant's statement was the result of a violation of his constitutional rights.

The question of alleged illegal police action and its effect on the admissibility of information obtained has been reviewed by the Supreme Court of the United States in the Silverthorne-Nardone-Wong Sun trilogy (Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441), which cases developed the doctrine known as 'fruit of the poisonous tree.'

'The gist of the question being whether, granting the primary illegality, the evidence to which objection is made has been discovered by exploitation of that illegality, or, instead, by means sufficiently distinguishable to be free of the primary taint--whether the connection between the primary illegality and the evidence in question is so 'attenuated' as to dissipate the taint.' (People v. Mendez, 28 N.Y.2d 94, 97, 320 N.Y.S.2d 39, 42, 268 N.E.2d 778, 779, cert. den. 404 U.S. 911, 92 S.Ct. 237, 30 L.Ed.2d 183; see also, People v. Scharfstein, 52 Misc.2d 976, 277 N.Y.S.2d 516.)

'We need not hold that all evidence is 'fruit of the poisonous tree' Simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. " (Wong Sun v. United States, supra, 371 U.S. at pp. 487--488, 83 S.Ct. at p. 417, emphasis supplied.)

'The problem, of course, is to decide upon any given set of facts what amounts to sufficient attenuation.' (People v. Mendez, supra, 28 N.Y.2d at p. 98, 320 N.Y.S.2d at p. 43, 268 N.E.2d at p. 780.)

The facts herein reveal that the defendant Grant was observed with the two other youths by the arresting officer, but was Not placed under arrest when the two others were at the scene of the alleged crimes. The arresting officer brought...