People v. Johnson

• Decision Date: 13 July 1984
• Citation: 478 N.Y.S.2d 987,102 A.D.2d 616
• Parties: PEOPLE of the State of New York, Respondent, v. Frederick JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 987

478 N.Y.S.2d 987

102 A.D.2d 616

PEOPLE of the State of New York, Respondent, v. Frederick JOHNSON, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 13, 1984.

Redmond & Parrinello, Rochester, for appellant (John Parrinello, of counsel).

Howard R. Relin, Dist. Atty., Rochester, for respondent (Michael Nelson, Rochester, of counsel).

Before DILLON, P.J., and DENMAN, BOOMER, GREEN and SCHNEPP, JJ.

SCHNEPP, Justice.

We are concerned with the constitutional propriety of the investigative stop of defendant's automobile on a public highway. The pivotal issue is whether the police possessed reasonable suspicion of criminal activity to justify this interference with defendant's travel and privacy. This case also raises questions regarding the role that race played in the decision to detain defendant. Following the denial of defendant's motion to suppress the evidence which was obtained as a result of that seizure, he pleaded guilty to robbery in the first degree and petit larceny.

I

The facts developed at the suppression hearing are undisputed. On April 28, 1982 Sergeant James O'Connor of the Town of Greece Police Department read a newspaper article concerning two convenience store robberies which had occurred in the Towns of Gates and Chili the preceding night. Before going on duty he was advised by the Gates police that the robberies occurred after 11:00 p.m. within one-half hour of each other, that in both cases the suspect was the same "black male" and that, although no vehicle was seen in the area of the Gates robbery, a black male in a large, dark colored vehicle was seen in the vicinity of the Chili robbery prior to its commission. This information, however, did not "connect the car or the male with the robbery". Thereupon at their 10:00 p.m. roll call the sergeant told his officers of the pattern of the robberies and asked them to pay special attention to the convenience stores in their area.

At approximately 1:19 a.m. the next morning, while he was operating a police car in the vicinity of Ridgemont Plaza in the Town of Greece, the sergeant received a police radio call "of a robbery at the Stop and Go, Dewey-Latta by a black male." ¹ No further description of the robber was broadcast, nor was a vehicle described; in fact, the dispatch did not indicate whether the robber used a getaway vehicle. The sergeant then radioed his police dispatcher to advise the City of Rochester and the Town of Irondequoit Police Departments of the robbery and to dispatch cars to "shut off * * * the main arteries of escape" from the crime scene. He then drove east on Ridge Road to Lake Avenue, a distance of about four miles, and proceeded north on Lake Avenue "trying to figure out the time element of distance from my traveling and the * * * possible suspect getaway route, how long it would take for him or at what point we would possibly meet." He saw "three or four around Lake and Ridge" but let them pass because he "didn't feel that the suspect could have possibly got that far." When he reached Hansford Lane, which is the entrance to Kodak Park on Lake Avenue and four or five miles from the crime scene, he slowed down in order to observe the vehicles traveling southbound on Lake Avenue. He directed the spotlight of his police car on the three or four cars which passed him, but none of them "aroused" his suspicion. At approximately 1:25 a.m., however, while he was proceeding northbound in the vicinity of the Holy Sepulchre Cemetery on Lake Avenue, he observed "a large vehicle with a Black male" heading southbound on Lake Avenue. When the sergeant slowed his vehicle down to a stop and directed his spotlight on this individual, later identified as defendant, the defendant looked "startled like" and had a "shocked look" which "through experience" "seemed odd" to the sergeant. The defendant then slowed his car down and the sergeant made a U-turn and followed the car for approximately a mile. ² No traffic violations or infractions were observed and a license plate check proved negative. The sergeant then received an additional radio report that the "suspect was possibly wearing grey colored clothing" and decided to stop the car on the theory that its driver "might possibly be the person robbed store". ³ The vehicle was stopped without incident. The sergeant approached it "with caution" ⁴ and requested the defendant to produce his license and registration. The sergeant then observed a brown paper bag with a five dollar bill protruding from it on the front floor of the vehicle and some Miller beer on the back seat. Because of his "experience" as a police officer investigating robberies, he became "alarmed" and ordered defendant out of the car, frisked him, handcuffed him and then placed him in the back of a police vehicle. Defendant was advised at that time that he was not being placed under arrest but that he was being handcuffed for his safety and the safety of the sergeant. The sergeant then radioed investigators at the crime scene and described the items found in the car. The investigators confirmed that the suspect had placed the money taken in the robbery in a bag and that he had also taken some Miller beer. The sergeant was instructed to hold the defendant until the victim could be transported to the scene. When the victim arrived "a few minutes later", defendant was removed from the police car and, presumably while handcuffed, "positively" identified by the victim. Defendant was then formally placed under arrest. Approximately 15 minutes elapsed from the time that the vehicle was stopped until the victim arrived at the scene and identified the defendant.

Defendant contends (1) that he was unlawfully stopped by the police without reasonable suspicion and that any tangible evidence seized as well as the showup identification should be suppressed as "fruit of the poisonous tree", (2) that he was placed under arrest without probable cause when he was handcuffed and placed in the police car, if not before, and (3) that the showup identification was unnecessarily suggestive and that the People failed to establish by clear and convincing evidence that there is an independent basis for in-court identification testimony by the robbery victim.

The hearing court ruled against defendant on each of these points. It said that the stop was authorized under the circumstances, since it "was not undertaken with an intent to harass", nor based on "mere whim * * * caprice or idle curiosity", but "was done under exigent circumstances * * * created by the fact that a crime had very recently been committed and an articulable suspicion that the person seized might be engaged in criminal activity by virtue of the area in which he was seen and stopped." In this regard the court accorded "due weight" to the reasonable inferences drawn from the facts by Sergeant O'Connor in light of his experience. Furthermore, the handcuffing and securing of defendant was found to be reasonable under the circumstances, although "probably a maximum intrusion." Defendant's claim that he was thereby arrested was specifically rejected by the court which found that the arrest did not take place until after he was identified by the victim. Finally, the court found that the victim had an ample and adequate opportunity to observe the robber during the commission of the crime and that the showup was not impermissibly suggestive. It specifically ruled "that the fact that the suspect may have been in handcuffs and was standing alone at the time of his identification make an impermissible one under the circumstances".

The People argue that this decision is correct in all respects and that the sergeant's actions were reasonably tailored to meet the exigencies of this case with minimal intrusion of defendant's rights. Although we disagree in part with the hearing court's decision, for the reasons which follow we affirm.

II

In cases such as this the initial inquiry is always whether the police action was justified in its inception (People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562). Resolution of this question here requires an understanding of what is sufficient to authorize police to stop a motor vehicle traveling on a public highway and the role that race may play in that decision.

"I saw the car in the area and wasn't answering any complaints, so I decided to pull them off." This sentiment, as a justification for an investigative stop of an automobile and its driver by the police, is violative of Fourth Amendment protections (Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39). An investigative stop of an automobile on a public roadway is a seizure within the meaning of constitutional limitations (People v. Ingle, supra, p. 418, 369 N.Y.S.2d 67, 330 N.E.2d 39) since it interferes with the travel and the privacy of the car's occupants, and it must be based on "reasonable suspicion of criminal activity" (People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003; People v. Brooks, 88 A.D.2d 451, 454, 453 N.Y.S.2d 740; see, also, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621; People v. Harrison, 57 N.Y.2d 470, 476, 457 N.Y.S.2d 199, 443 N.E.2d 447).

What is "reasonable suspicion?" The United States Supreme Court has said that "the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." (United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621, supra.) As such, reasonable suspicion is a standard which is less than the probable cause required to arrest or search (United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, ...