People v. Madera

• Decision Date: 20 April 1993
• Citation: 189 A.D.2d 462,596 N.Y.S.2d 766
• Parties: The PEOPLE of the State of New York, Appellant, v. Ali MADERA, a/k/a Alberto Rivera, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 766

596 N.Y.S.2d 766

189 A.D.2d 462

The PEOPLE of the State of New York, Appellant, v. Ali MADERA, a/k/a Alberto Rivera, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 20, 1993.

Adrienne Brewington, New York City, of counsel (Peter D. Coddington, with her on the brief, Robert T. Johnson, Dist. Atty., atty.), for appellant.

Steven J. Miraglia, New York City, of counsel (Philip L. Weinstein, atty.), for defendant-respondent.

Before MURPHY, P.J., and CARRO, ROSENBERGER, ROSS and KASSAL, JJ.

MURPHY, Presiding Justice.

In the early morning hours of December 1, 1990, two police officers received a radio report, based on anonymously provided information, that there had been a fight at 1411 Grand Concourse and that one of those present at the site of the altercation had a knife. Minimal descriptions were provided of two persons: one of them reportedly wore a red jacket and the other a dark jacket with a white stripe.

Shortly after arriving at 1411 Grand Concourse, the responding officers were called to the aid of another officer at a different location. Upon their return a few minutes later to the scene of the incident described in the radio run, the officers observed three men none of whom wore items of clothing remotely resembling those mentioned over the radio. No one was seen with a knife and there was no sign of any disturbance. Nevertheless, the officers approached the men and, as they did so, one of the men, the defendant, ran away. The officers pursued him on foot and were assisted by several police cars. Less than a minute after the initiation of the chase, the defendant discarded a gun. Seconds later he was apprehended and eventually charged with criminal possession of a weapon in the third degree.

Ruling upon the defendant's ensuing motion to suppress the gun, the motion court held that the police action had not been justified since the officers had, at most, a predicate for inquiry, one insufficient to sustain the significantly greater intrusion constituted by the officers' pursuit of the defendant. The court also found that the defendant's discard of the gun some thirty seconds into the chase had been a spontaneous reaction to the illegal police conduct. The suppression motion was accordingly granted. 153 Misc.2d 366, 580 N.Y.S.2d 984. We now affirm.

There can be no doubt that the motion court's determination to suppress was compelled by clear and well-established law governing police-citizen encounters. It is undisputed that upon arriving at the scene of the anonymously reported incident, the police observed nothing indicative of criminal activity, much less of the particular activity or persons described to them over the radio. As they approached the defendant, then, the police had absolutely no reason to believe that he or the other men with whom he was standing had been involved in the commission of any crime. Under the circumstances, the officers' decision to pursue the defendant can have been based upon nothing more than the fact that he apparently chose to avoid them. The defendant, however, like any other citizen, "had a right to refuse to respond to police inquiry and his flight when the officers approached could not, in and of itself, create a reasonable suspicion of criminal activity" (People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951). This being the case, it is clear beyond peradventure that there existed no predicate for the pursuit of the defendant.

Police pursuit, of course, constitutes a significant interference with the pursued person's freedom of movement akin to that occurring in the case of a detentive stop and, accordingly, is only permitted upon such grounds as would render a detentive stop legal (id. at 447, 591 N.Y.S.2d 823, 606 N.E.2d 951). Those grounds should, at least in theory, hardly be a matter for judicial debate, for it has long been established both as a matter of constitutional and statutory law that no one may be subjected to a detentive stop unless there exist at a minimum circumstances which would in an ordinarily cautious person justify a reasonable suspicion that the person to be detained had committed, was committing, or was about to commit a crime (see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Martinez, supra at 447, 591 N.Y.S.2d 823, 606 N.E.2d 951; CPL 140.50), circumstances which in the present case were simply not present. As noted, apart from the defendant's flight, the police had not the slightest indication that he had committed any illegal act, and as the Court of Appeals has so recently reaffirmed, flight alone cannot, as a matter of law, constitute a sufficient basis for a detentive stop or for the functionally equivalent intrusion constituted by pursuit.

Contrary to what I understand to be the relevant contention of the dissent, the very lately reiterated law governing this case is not at all unclear, and when that law is applied to the facts as found by the motion court, the result we now affirm could not be more obviously required. It is a result which, it may be noted, would follow even under the "broader principles" articulated in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 to which the dissent urges that we "return." For those broad principles require both that police action be justified at its inception and that the action be "reasonably related in scope to the circumstances which rendered its initiation permissible" (40 N.Y.2d at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562). Regardless of whether the police action here at issue was justified at its inception, it is plain that the subsequent pursuit of the defendant was not reasonably related in scope to the circumstances upon which it was premised. The police had, at most, some basis to approach the defendant for information; they had no reason to suspect him of criminal involvement and, accordingly, no basis to pursue or detain him.

Obviously, the broad principles of De Bour do not stand for the proposition apparently embraced by the dissent that whenever police officers may approach a person they may pursue him or her simply because their inquiry is avoided. Rather, what De Bour stands for in its general and, indeed, specific, sense is that police action must be justified from its inception, and at any subsequent juncture, by a sufficient factual predicate, even when the police conduct involved does not amount to a seizure within the meaning of the Fourth Amendment. Indeed, as should have been evident from the decision itself and, in any case, has since been made explicit, the principle concern in De Bour was to assure that all phases of police-citizen encounters would be subject to judicial scrutiny, not just those involving the extreme limitation of personal freedom occurring in the case of a formal seizure. It has not yet been a year since the Court of Appeals unanimously reaffirmed De Bour, observing in the course of doing so that the decision "reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the privacy interests of all citizens and that the spirit underlying those words required the adoption of a State common-law method to protect the individual from arbitrary or intimidating police conduct" (People v. Hollman, 79 N.Y.2d 181, 195, 581 N.Y.S.2d 619, 590 N.E.2d 204). Unfortunately, De Bour's central and recently reiterated concern that individual privacy not be unduly compromised by official overreaching at any point in police-civilian encounters, even at the most preliminary informational stage, simply cannot be reconciled with the approach advocated by the dissenter. The dissenter states that "where an officer has a justifiable, and thereby I mean articulable and credible, reason for approaching a civilian, to request information, investigate the report of a crime or investigate suspicious behavior, the civilian's flight in the face of a nonthreatening approach by a police officer is the escalating factor which justifies the officer's pursuit." This is not at all different from saying that when an officer may for whatever reason approach a person he may also pursue and detain that person. This does not represent a "return" to the "general principles" of De Bour but a completely new and conflicting rule, the proposal of which must from a jurisprudential perspective be regarded as remarkable, coming as it does within months of the Court of Appeals reaffirmance of De Bour and virtually on the heels of the Court of Appeals restatement in the clearest possible terms that nothing less than a founded suspicion of a person's involvement in criminal activity will justify police pursuit (People v. Martinez, supra at 447, 591 N.Y.S.2d 823, 606 N.E.2d 951).

The suggestion that longstanding and recently unanimously reaffirmed law be rejected is not simply extraordinary from a precedential standpoint, but profoundly troublesome from a legal one, since the proposed new rule is, to say the least, of doubtful constitutional validity. The dissenter's notion that the police may pursue and seize whomever they may approach, would necessarily validate seizures in situations such as the one at bar in which although there is perhaps some basis for inquiry, there exists no reason to suspect a particular person of crime, indeed, in which it has not even been reliably ascertained that any crime has been committed. To permit the seizure of a person, simply because that person asserts his or her undoubted right to be left alone is not merely violative of this state's common law, but its statutes, its constitution, and, indeed, the Federal Constitution. Under all of these authorities the absolute minimum predicate required to support the seizure of a civilian is a reasonable suspicion that the person to be seized has committed or is about to commit a crime; it is...