People v. Holmes

• Decision Date: 23 June 1992
• Parties: The PEOPLE of the State of New York, Respondent, v. David HOLMES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 718

585 N.Y.S.2d 718

181 A.D.2d 27

The PEOPLE of the State of New York, Respondent, v. David HOLMES, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 23, 1992.

Beverly Van Ness, of counsel (Philip L. Weinstein, attorney), for defendant-appellant.

David Joseph Mudd, of counsel (Beth J. Thomas, with him on the brief, Robert M. Morgenthau, Dist. Atty., attorney), for respondent.

Before SULLIVAN, J.P., and MILONAS, ELLERIN and KUPFERMAN, JJ.

ELLERIN, Justice.

The question before us on this appeal from a motion denying suppression of physical evidence is the propriety of the police conduct resulting in the recovery of that evidence in light of the decision by the United States Supreme Court in California v. Hodari D., 499 U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690.

At the hearing on defendant's motion to suppress, New York City Police Officers Nelthrope and Moynihan testified that they were on uniformed patrol at 12:40 p.m. on December 23, 1989, when they observed several men gathered near the premises of "a known narcotics location" on the east side of Amsterdam Avenue, between 163rd and 164th Streets. Moynihan noticed that defendant, who was part of the group, had an unidentified bulge in the right pocket of his long brown leather jacket. Nelthrope noticed that several of the men were familiar to him as having been arrested by other officers at the same location for drug related offenses. (Although Nelthrope also testified that he recognized defendant as a former arrestee, the record is unclear as to the point at which he recognized him, and his testimony appears to indicate that it may not have been until after defendant was arrested in this case.)

As the patrol car approached the group, defendant began to back off from the group and then turned and walked away. The officers stopped the car, and, from inside the vehicle, Moynihan called out to defendant requesting him to come over. Defendant turned around and was heading in the direction of the car, but, as Officer Moynihan started to exit the vehicle, defendant fled. The officers gave chase, with Moynihan pursuing defendant on foot and Nelthrope following in the police car. During the chase, when they were half way down 163rd Street, with Moynihan 10 feet from defendant, Moynihan saw defendant throw a plastic bag through a chain link fence into a courtyard. After defendant's apprehension, the bag was recovered and was found to contain 45 vials of crack cocaine.

The court declined to suppress the drugs, finding that the police officers' initial right to inquire of defendant escalated into a reasonable suspicion that he had committed or was about to commit a crime when he fled from the scene, thereby justifying the pursuit. Finding that the drugs were not discarded as the result of unlawful police action, the court held that they were admissible into evidence.

As the Court of Appeals has recently reaffirmed in People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204, the evaluation of the propriety of a street encounter between police and citizen is governed in this state by the principles enunciated in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562. Applying those principles, we find that the facts concerning defendant which were available to the officers at the point when they stopped the car--i.e., that defendant and the others, some of whom had been arrested previously, were near a known narcotics location, that defendant had an unidentifiable bulge in his pocket, and that defendant walked away when he saw the police car approach--when taken together, were sufficient to constitute an "objective and credible reason" permitting the officers to intrude on defendant's privacy for the purpose of requesting information. However, since none of the factors within the knowledge of the police was necessarily indicative of criminality, and since defendant's behavior was not at all inconsistent with an innocent interpretation, at that point the police were not in possession of a "founded suspicion that criminality [was] afoot", which would have entitled them to conduct a more intrusive inquiry.

In view of the fact that defendant departed before any inquiry could be made, our analysis must focus, not on the level of inquiry which would have been permissible, but, rather, on whether the police were permitted to pursue defendant once he failed to cooperate with their inquiry and, instead, ran from the scene.

In People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484, it was made clear that, under the law of this state, pursuit by police officers constitutes a "limited detention" of the person pursued, and must therefore be justified by a reasonable suspicion that the person has committed or is about to commit a crime (People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687). Defendant candidly concedes that the subsequent United States Supreme Court holding in California v. Hodari D., 499 U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 that pursuit is not a seizure within the meaning of the federal constitution, forecloses any argument that the police violated his rights under the fourth amendment of the federal constitution, and he seeks relief solely under principles of this State's law.

Although Hodari D. (supra ) may have overruled the decision in People v. Howard (supra ) insofar as it held that the act of pursuit itself would be a limited seizure within the meaning of the federal constitution, it is significant that the Court of Appeals explicitly based its determination in Howard not only on the federal constitution but also on the New York State Constitution, specifically Art. I, § 12, which is not identical in scope with the federal fourth amendment and has been held, in various instances, to provide our citizens with greater protection from governmental intrusion (People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328) than that afforded by the federal provision. Moreover, the Court of Appeals has also made clear that the privacy of the citizens of this state from governmental intrusion is protected not only by the constitutional proscriptions against unwarranted searches and seizures but, also, by New York common law, under which police encounters "that fall short of Fourth Amendment seizures still implicate the privacy interests of all citizens and ... should be evaluated under the De Bour test." (People v. Hollman, supra ). While, in Hollman, the Court did not deal specifically with the issue of pursuit, there is no reason to suppose that the Court meant to exclude from its privacy analysis those fundamental policy considerations which entered into its holding in Howard, including the right of any citizen to refuse to cooperate with the police and the fact that flight from the police, in and of itself, is not necessarily indicative of guilt.

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