People v. May

• Decision Date: 16 December 1992
• Citation: 81 N.Y.2d 725,593 N.Y.S.2d 760,609 N.E.2d 113
• Parties: , 609 N.E.2d 113 The PEOPLE of the State of New York, Respondent, v. John MAY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 760

593 N.Y.S.2d 760

81 N.Y.2d 725, 609 N.E.2d 113

The PEOPLE of the State of New York, Respondent, v. John MAY, Appellant.

Court of Appeals of New York.

Dec. 16, 1992.

De Nice Powell and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Hector Gonzalez and Donald J. Siewert, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 176 A.D.2d 484, 574 N.Y.S.2d 958, should be reversed, defendant's motion to suppress granted and the indictment dismissed.

On March 8, 1989, at about 2:30 A.M., defendant and a female companion were seated in a parked Oldsmobile on a deserted street known for criminal activity. Two police officers, patrolling in a marked car, drove up behind them to investigate. As the officers approached, with the patrol car's red turret lights and spotlight on, defendant started the engine of the Oldsmobile and slowly pulled away. At this point, one of the officers, using the police car's loudspeaker, ordered the car to pull over. Defendant did so.

The officers approached the Oldsmobile and asked defendant to produce his license, registration or insurance card and as the officers waited for him to do so, they noticed that a towel was draped over the steering wheel column. They called in the car's license plate number and were advised that the car was stolen. The officers then placed defendant under arrest. A body search revealed three vials of crack cocaine in his pocket, and when the towel was removed from the steering column the officers discovered that the column had been broken and rewired.

Defendant moved the trial court to suppress the crack and the police pictures subsequently taken of the stolen car as the fruits of an illegal stop and seizure. The motion was denied.

We preliminarily note that, despite the fact that defendant was seated in a stolen car, the police stopped him personally and he consequently has standing to challenge the legality of that stop (see, People v. Millan, 69 N.Y.2d 514, 520-521, 516 N.Y.S.2d 168, 508 N.E.2d 903). Turning to the merits, we hold that when the police, using red turret lights, a spotlight and a loudspeaker, ordered defendant to pull the car over, defendant was effectively "seized" (see, People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218; People v. Ingle, 36 N.Y.2d 413, 418, 369 N.Y.S.2d 67, 330 N.E.2d 39; see also, People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 324 N.E.2d 872). Consequently, the stop was proper only if the officers had a reasonable suspicion of criminal activity (see, People v. Sobotker, 43 N.Y.2d at 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218, supra; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).

Under the circumstances existing, the police officers here could not have entertained a reasonable suspicion that a crime had been or was about to be committed. They knew only that defendant and another person were sitting in a car parked on a desolate street, a fact which provided them with no information regarding criminal activity. Moreover, defendant's action in moving the car slowly away as the police approached could not serve to create a reasonable suspicion of criminality given defendant's right "to be let alone" and to refuse to respond to police inquiry (see, People v. Howard, 50 N.Y.2d 583, 590-591, 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 [quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944]. The police could have followed the car, to keep it under observation while they checked on its plates to determine if it was stolen (see, People v. Sobotker, 43 N.Y.2d at 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218, supra ), but they had no legal basis to stop the car when they did.

Nothing said here should be construed as holding that the police may not make a common-law inquiry of those in a vehicle based upon a founded suspicion and, as suggested by the dissent, the officers here had grounds to do so. The police may not forcibly detain civilians in order to question them, however, without a reasonable suspicion of criminal activity and once defendant indicated, by pulling away from the curb, that he did not wish to speak with the officers, they should not have forced him to stop without legal grounds to do so ( see, People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823, 606 N.E.2d 951). Any other rule would permit police seizures solely if circumstances existed presenting a potential for danger.

Accordingly, the evidence should have been suppressed (see, Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441; People v. Ingle, 36 N.Y.2d, at 418-419, 369 N.Y.S.2d 67, 330 N.E.2d 39, supra ).

Bellacosa, Judge (dissenting).

I respectfully dissent and vote to affirm the order of the Appellate Division.

People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823, 606 N.E.2d 951, in which I fully concur, applies New York's common-law governing framework for police-civilian street encounters in a People v. Howard, 50 N.Y.2d 583, 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 context. Martinez focuses on the third level of People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the forcible stop and detention, and makes an important clarification of Howard. The instant case deals with the second level, the common-law right of inquiry in an analogous police-civilian street encounter involving a vehicle.

Here, the police officers pulled up in a police radio car behind a parked car sometime after 2:30 A.M. on a deserted street in Manhattan known for criminal drug activity. They had turned on their turret lights and spotlight. The parked car then started to pull away from the curb, with the officers following for 10 to 20 feet. By loudspeaker, the officers directed defendant to "[p]ull the vehicle over". The officers approached the car and simply asked defendant for his license, registration and insurance card. The police kept their weapons holstered. The vehicle was soon determined to have been stolen in Queens a few weeks before.

As the Court stated in De Bour, the common-law right of inquiry is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a police [officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v. De Bour, 40 N.Y.2d, at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 supra ). I agree that at the point in time when the police used the loudspeaker to order defendant to pull the car over, they had only a founded suspicion that criminal activity might be afoot and, therefore, only the common-law right of inquiry was activated. I believe, however, that the order "to pull over" and the brief, ordinary inquiry...