People v. McFadden

• Decision Date: 31 January 1992
• Citation: 179 A.D.2d 1003,579 N.Y.S.2d 273
• Parties: PEOPLE of the State of New York, Respondent, v. Christopher McFADDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 273

579 N.Y.S.2d 273

179 A.D.2d 1003

PEOPLE of the State of New York, Respondent, v. Christopher McFADDEN, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 31, 1992.

Edward J. Nowak by Janet Somes, Rochester, for appellant.

Howard R. Relin by Mark Pedersen, Rochester, for respondent.

Before CALLAHAN, J.P., and DOERR, GREEN, BALIO and LAWTON, JJ.

MEMORANDUM:

The court erred in concluding that the police properly stopped defendant, or that defendant gave his consent to the police intrusion. Defendant was stopped on the porch of his home. The only basis for the stop was that defendant, a Black male, was carrying a cardboard box containing a computer keyboard, while walking down a residential street, in the early afternoon. The court concluded that the stop was justified, citing language from People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 that a police officer may approach a citizen to request information as long as "there is some objective credible reason for that interference not necessarily indicative of criminality."

There are at least two problems with that conclusion. First, the People did not advance that theory before the hearing court and should not now be heard to make such argument for the first time on appeal (see, People v. Johnson, 64 N.Y.2d 617, 619, n. 2, 485 N.Y.S.2d 33, 474 N.E.2d 241). Second, the reasons asserted for the stop are not objective, and, more importantly, the purpose for the stop was not simply to request information. Rather, the purpose for the stop was to make specific inquiries about defendant and to demand that he explain his behavior. Thus, under De Bour, the police were acting at least at the second level of inquiry, which required them to have a "founded suspicion that criminal activity is afoot" (People v. De Bour, supra, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). Here, there was no such suspicion (see generally, Sack, Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. De Bour, 66 N.Y.U.L.Rev. 512, 529-550 [1991]. In this technological age, when computers are almost as commonplace as TV sets or stereo systems, a man walking in his own neighborhood in the middle of the day, carrying a box containing a computer keyboard, should not serve as the basis of a police intrusion of any kind. Because the initial stop of defendant was illegal, any evidence seized must be suppressed (see, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441).

The court's conclusion that defendant consented to the police intrusion is not supported by the record, or by the reality of the encounter. The prosecution had a heavy burden to establish defendant's consent (People v. Kuhn, 33 N.Y.2d 203, 208-209, 351 N.Y.S.2d 649, 306 N.E.2d 777). "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle" (People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575). Here, the police exited a police car, approached defendant on the porch of his residence and asked him if they could talk to him. The police did not advise defendant that he could refuse to talk. Most reasonable people, not experienced in the area of criminal law, when approached by a police officer who wants to ask questions, probably believe that, if they refuse to consent, the police will ask anyway so they may as well cooperate. That is not voluntary consent, but submission to authority (see, Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797).

Accordingly, the judgment is reversed, defendant's motion to suppress granted and the indictment dismissed. Judgment reversed on the law, motion granted and indictment dismissed.

All concur, except CALLAHAN, J.P., and BALIO, J., who dissent and vote to affirm in the following Memorandum:

We do not concur with the majority determination. We respectfully suggest that the majority writing does not pay fidelity to the record in this appeal. They depict defendant as an average citizen "not experienced in the area of criminal law"; this defendant is a predicate felon. The majority state that "[t]he only basis for the stop was that defendant, a Black male, was carrying a cardboard box containing a computer keyboard, while walking down a residential street, in the early afternoon". The record reveals that defendant was observed by two police officers as he was walking along a residential street with a computer keyboard protruding out of a toilet tissue box. That observation clearly was sufficient to arouse the suspicion of the officers and to justify their inquiry (see, People v. De Bour, 40 N.Y.2d 210, 213, 386 N.Y.S.2d 375, 352 N.E.2d 562).

The officers approached defendant as he neared his residence and asked if they could talk to him. Defendant responded "Yes" and set the box down on the porch. From that...