People v. Lee

Decision Date15 June 2012
Citation947 N.Y.S.2d 241,2012 N.Y. Slip Op. 04846,96 A.D.3d 1522
PartiesThe PEOPLE of the State of New York, Respondent, v. Douglas E. LEE, Defendant–Appellant. (Appeal No. 1.)
CourtNew York Supreme Court — Appellate Division

96 A.D.3d 1522
947 N.Y.S.2d 241
2012 N.Y. Slip Op. 04846

The PEOPLE of the State of New York, Respondent,
v.
Douglas E. LEE, Defendant–Appellant.
(Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

June 15, 2012.


[947 N.Y.S.2d 242]


The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr. of Counsel), for Defendant–Appellant.

Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.


PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

[96 A.D.3d 1523]In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the second degree (Penal Law § 140.25[2] ). In appeal No. 2, he appeals from a judgment convicting him, also upon his plea of guilty, of attempted burglary in the second degree in satisfaction of a separate indictment (§§ 110.00, 140.25[2] ).

The conviction in appeal No. 1 arises from defendant's theft of two bicycles in the Town of Irondequoit in the early morning hours of July 16, 2004. Defendant contends that County Court erred in refusing to suppress the statements that he made to the arresting officer because, inter alia, he was illegally detained in violation of his Fourth Amendment rights. We agree with defendant that his statements should have been suppressed on that ground. We note at the outset, however, that defendant's contention is confined solely to the judgment of conviction in appeal No. 1, and that he raises unrelated issues in appeal No. 2 that are unaffected by our determination in appeal No. 1.

With respect to appeal No. 1, at approximately 6:00 a.m. on the day in question, the Irondequoit Police Department received a report of a suspect who was “possibly” stealing bicycles. The report was called in by a local Town Justice, who had found a bicycle in his driveway. In response to the report, a police officer drove to the residence of the Town Justice, who stated that his newspaper delivery woman had told him that she encountered a man riding one bicycle while simultaneously pulling the second bicycle that the Town Justice discovered was left in his driveway. The delivery woman had described the man to the Town Justice as a black male wearing a dark hooded sweatshirt and jeans.

Upon receiving that information, the officer left the Town Justice's residence in search of the suspect. After driving approximately one block, the officer observed defendant, a black male wearing a dark hooded sweatshirt and greenish-colored jeans, emerge from a nearby yard riding a bicycle. Defendant proceeded to ride the bicycle down the sidewalk, whereupon the [96 A.D.3d 1524]officer pulled alongside him and called out

[947 N.Y.S.2d 243]

for him to stop. Defendant initially did not comply, but when the officer yelled a second time for him to stop, defendant complied. The officer then exited his vehicle and approached defendant. When asked at the suppression hearing what he initially said to defendant, the officer responded, “I told him that we had a report of a suspicious male possibly stealing bikes and that the description of the male was a male black wearing a darker ... hooded sweatshirt and jeans, and as you can see you fit the description, so I just have to make an inquiry and you'll be on your way if everything's okay.” The officer testified similarly on cross-examination, explaining that, upon stopping defendant and explaining the reason therefor, the officer advised defendant that “after everything checks [out], you'll be on your way.” The stop occurred at 6:21 a.m.

The officer proceeded to ask defendant a series of questions, including his identity, where he lived and what he was doing in the area. Defendant answered the officer's questions. When the officer asked where he had gotten the bike, defendant said that he purchased it a week earlier from “some dude” for $45. At some point during the questioning, another police officer arrived at the scene, and that second officer remained on the sidewalk with defendant while the first officer at the scene commenced an investigation. The first officer went to several residences on the street and questioned homeowners to determine whether their homes or garages had been burglarized. At 6.45 a.m., approximately 24 minutes after defendant was initially stopped by the police, the newspaper delivery woman, acting on her own volition, arrived at the scene and identified defendant as the person she had observed earlier in the morning with two bicycles. Fifteen minutes later, a third officer arrived with a civilian who identified the bicycle that defendant was riding as his. Defendant was then placed under arrest, administered Miranda warnings, and interrogated by the police. He was ultimately indicted for two counts of burglary in the second degree, one count of burglary in the third degree, and three counts of petit larceny. While released on those charges, defendant committed another burglary, which is the subject of the indictment in appeal No. 2.

In its decision denying defendant's suppression motion, the court concluded that, before encountering defendant, the information possessed by the first officer at the scene was sufficient to support a founded suspicion that criminal activity was afoot, justifying the “limited intrusion upon defendant's freedom of movement” until the newspaper delivery woman arrived and [96 A.D.3d 1525]identified defendant as the individual she had seen pulling the second bicycle. At that point, the court determined that the first officer at the scene had reasonable suspicion to believe that defendant had committed a crime, justifying defendant's temporary detention. When the second civilian arrived and identified the bicycle that defendant had been riding as his, the officers had probable cause to arrest defendant.

We agree with defendant that his 24–minute detention following the stop by the first officer at the scene violated his Fourth Amendment rights. The court's determination that the officer had a “founded suspicion that criminal activity [was] afoot” justified a common-law inquiry ( People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204), a level two intrusion under People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562. Pursuant to that level two intrusion, the officer was “entitled to interfere with [defendant] to the extent necessary to gain explanatory information”; he

[947 N.Y.S.2d 244]

could not, however, forcibly seize defendant ( id.). An officer making a common-law inquiry may detain a suspect temporarily, but only “to the extent necessary to obtain explanatory information” ( People v. Medina, 107 A.D.2d 302, 304, 486 N.Y.S.2d 754).

Here, the length of defendant's detention exceeded that allowed pursuant to a common-law inquiry when, after first being asked for identifying information, defendant was held for 24 minutes while the first officer at the scene went to residences in the neighborhood searching for evidence of a crime. Once the officer began that process, defendant's temporary seizure pursuant to a lawful common-law inquiry became an investigatory detention, a level three intrusion necessitating a reasonable suspicion that defendant had committed a crime ( see People v. Bruce, 306 A.D.2d 68, 69, 762 N.Y.S.2d 42,lv. denied100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624;see generally People v. Ryan, 12 N.Y.3d 28, 29–31, 876 N.Y.S.2d 672, 904 N.E.2d 808). Significantly, the suppression court determined that such reasonable suspicion did not exist until the newspaper delivery woman arrived and identified defendant, which as noted was 24 minutes after the initial encounter. “The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action” ( People v. Williams, 191 A.D.2d 989, 990, 595 N.Y.S.2d 588,lv. denied82 N.Y.2d 729, 602 N.Y.S.2d 826, 622 N.E.2d 327;see People v. Williams, 79 A.D.3d 1653, 1654, 914 N.Y.S.2d 521,affd.17 N.Y.3d 834, 930 N.Y.S.2d 530, 954 N.E.2d 1155 [“The officers were not at liberty to detain defendant (for 15 to 20 minutes) while other officers attempted to determine whether a burglary had in fact been committed, i.e., ‘until evidence establishing probable cause could be found’ ”]; see also Ryan, 12 N.Y.3d at 30–31, 876 N.Y.S.2d 672, 904 N.E.2d 808 [A detention of approximately 13 minutes was not authorized, even in the event that the police [96 A.D.3d 1526]had reasonable suspicion warranting a level three investigatory detention] ).

We would reach the same conclusion even if, as the dissent suggests, the police did not canvass the neighborhood until after the newspaper delivery woman arrived. The fact remains that defendant was detained for 24 minutes in the absence of reasonable suspicion. The court specifically found that 24 minutes separated defendant's stop and the arrival of the newspaper delivery woman, and the People do not challenge that finding on appeal. In our view, the 24–minute detention was unlawful regardless of whether the police were going door-to-door in search of a crime during that time period.

We further conclude that a reasonable person in defendant's position would not have felt free to leave after the first officer at the scene told him that, “ after everything checks [out]” he would be “on [his] way” and then handed defendant off to another uniformed officer while he canvassed the neighborhood in search of a crime ( [emphasis added]; see generally People v. Hicks, 68 N.Y.2d 234, 239–240, 508 N.Y.S.2d 163, 500 N.E.2d 861;People v. Smith, 234 A.D.2d 946, 946, 652 N.Y.S.2d 440,lv. denied89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319;People v. McFadden, 179 A.D.2d 1003, 1004, 579 N.Y.S.2d 273).

We disagree with the dissent's conclusion that defendant was not detained while the police officer conducted his investigation. First, the suppression court specifically found that there was a “temporary detention” of defendant while the...

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