People v. Holmes

• Citation: 601 N.Y.S.2d 459,81 N.Y.2d 1056,619 N.E.2d 396
• Parties: , 619 N.E.2d 396 The PEOPLE of the State of New York, Appellant, v. David HOLMES, Respondent.
• Decision Date: 15 June 1993
• Court: New York Court of Appeals

Page 459

601 N.Y.S.2d 459

81 N.Y.2d 1056, 619 N.E.2d 396

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

Court of Appeals of New York.

June 15, 1993.

[81 N.Y.2d 1057] [619 N.E.2d 397] Robert M. Morgenthau, Dist. Atty., New York County, New York City (David J. Mudd and Mark Dwyer, of counsel), for appellant.

Beverly Van Ness and Philip L. Weinstein, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

In the early afternoon of December 23, 1989, two police officers, Frederick Nelthrope and John Moynihan, were in uniform in a marked patrol car heading north on Amsterdam Avenue between 163rd and 164th Streets in Manhattan. A group of men stood talking near a known narcotics location. Officer Moynihan noticed an unidentified bulge in defendant's right jacket pocket. As the patrol car approached, the defendant left the group and walked away. Officer Moynihan called to the defendant to come over. As Officer Moynihan exited the police car, defendant ran and the police officers gave chase. As he ran on 163rd Street, defendant threw a plastic bag through a chain link fence and into a courtyard. The police officers caught the defendant. Thereafter, one of them proceeded to the courtyard where he recovered the plastic bag containing crack cocaine.

Defendant's motion to suppress was denied following a hearing. Subsequently, he pleaded guilty to criminal possession of a controlled substance in the fifth degree. The Appellate Division unanimously reversed, vacated the guilty plea, granted defendant's motion to suppress, and dismissed the indictment (181 A.D.2d 27, 585 N.Y.S.2d 718). A Judge of this Court granted leave to appeal (80 N.Y.2d 930, 589 N.Y.S.2d 857, 603 N.E.2d 962).

Police pursuit of an individual "significantly impede[s]" the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed (People v. Martinez, 80 N.Y.2d 444, 447, 591 N.Y.S.2d 823, 606 N.E.2d 951). Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit. The circumstance in (People v Matienzo, 81 N.Y.2d 778, 593 N.Y.S.2d 785, 609 N.E.2d 138)--which does indeed offer "valuable guidance" (see, dissenting mem., at 1060, at 462 of 601 N.Y.S.2d, at 399 of 619 N.E.2d) was that the defendant was seen exchanging a small plastic bag for money. In People v. Martinez (supra), the defendant was observed removing a Hide-a-Key box, known to be used as a drug stash, from steel grate of a store window. In (People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687) the defendant was observed passing a manila envelope resembling "three dollar bags." Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information (see, People v. Hollman, 79 N.Y.2d 181, 190, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. De Bour, 40 N.Y.2d 210, 218-220, 386 N.Y.S.2d 375, 352 N.E.2d 562), is insufficient to justify pursuit because an individual has a right "to be let alone" and refuse to respond to police inquiry (see, People v. May, 81 N.Y.2d 725, 727-728, 593 N.Y.S.2d 760, 609 N.E.2d 113). These precedents establish principles to guide the police in what are often fast-developing encounters.

Applying these precedents, we agree with the Appellate Division that defendant's motion to suppress should have been granted. While the police may have had an objective credible reason to approach defendant to request information--having observed him in a "known narcotics location" with an unidentified bulge in the pocket of his jacket--those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit. Defendant was merely observed in the daytime, talking with a group of men on a New York City street. Given the unfortunate reality of crime in today's society, many areas of New York City, at one time or another, have probably been described by the police as "high crime neighborhoods" or "narcotics-prone locations." Moreover, a bulging jacket pocket is hardly indicative of criminality. As we have recognized, a pocket bulge, unlike a waistband bulge, "could be caused by any number of innocuous objects" ( People v. De Bour, 40 N.Y.2d 210, 221, 386 N.Y.S.2d 375, 352 N.E.2d 562 supra ).

If these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone." That is not, nor should it be, the law.

Finally, the Appellate Division's determination that defendant's relinquishment of the bag was in response to the unlawful police pursuit is a mixed question of law and fact supported by the record and thus beyond our review (see, People v. Hollman, 79 N.Y.2d, at 193-194, 581 N.Y.S.2d 619, 590 N.E.2d 204, supra ).

BELLACOSA, Judge (dissenting).

Respectfully dissenting, I vote to reverse and reinstate the conviction that rests on defendant's plea of guilty to possession of drugs.

Police officers, patrolling in a car in the afternoon of December 23, 1989 near a "known narcotics location" in upper Manhattan, observed defendant with several other persons. One officer recognized several of the men as having been previously arrested for drug transactions at the same location. The officers noticed a "large bulge" in the right pocket of defendant's leather jacket. As the patrol car approached, defendant began to back off from the group and then turned and walked away. The officers stopped the patrol car, and from inside the vehicle one officer called out to defendant, requesting him to come over. Defendant reacted by turning and moving towards the car. As the officer started to get out of the car, defendant turned again and ran in the opposite direction. The officers followed, one on foot and one in the car. The officer on foot, running about 10 feet behind defendant, never lost sight of him in the few minutes that transpired, and saw him throw a plastic bag containing 45 vials of crack cocaine through a chain link fence into a courtyard. Defendant was apprehended and charged with possession of the discarded drugs.

Supreme Court denied defendant's suppression motion, finding that "the activities of the defendant escalated" such that "[t]he encounter * * * was proper as * * * initiated and the pursuit was justified". Defendant's toss of the bag during his departure from the scene was ruled an abandonment. The Appellate Division reversed, ironically concluding that the defendant's conduct was lawful, but the police activity was unlawful.

Law has a tendency to gravitate towards levels of intellectual sophistication and subtlety, and then sometimes spins out to a realm of unreality in pursuit of a quixotic and illusory "right 'to be left alone' " (majority mem., at 1058, at 460 of 601 N.Y.S.2d, at 397 of 619 N.E.2d). Something as elemental as running away from a police officer, after a concededly lawful...