People v. Moore

• Citation: 6 N.Y.3d 496,847 N.E.2d 1141
• Parties: The PEOPLE of the State of New York, Respondent, v. Calvin MOORE, Appellant.
• Decision Date: 21 February 2006
• Court: New York Court of Appeals Court of Appeals

Page 1141

847 N.E.2d 1141

6 N.Y.3d 496

The PEOPLE of the State of New York, Respondent, v. Calvin MOORE, Appellant.

Court of Appeals of New York.

February 21, 2006.

Appellate Advocates, New York City (Sarah J. Berger and Lynn W.L. Fahey), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Diana Villanueva and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

On November 12, 1997, at approximately 9:35 A.M., Police Officers Racioppo and Molinaro were on a routine patrol in their marked police car when they received a radio call of a dispute involving a male Black with a gun, described as approximately 18 years of age, wearing a gray jacket and red hat—information that came from an anonymous phone tip. The officers drove to the scene without their lights flashing and arrived within approximately one minute of receiving the radio call. No dispute was taking place. They did, however see a male Black on the corner — defendant — wearing a gray jacket and red hat, with no similar individuals in the vicinity.

The officers exited their vehicle and walked toward defendant, who began to walk away. Without attempting any verbal inquiry, the officers immediately drew their guns and yelled "police, don't move." The defendant then turned and continued to walk a short distance toward a closed gate before stopping. When the officers told defendant to put up his hands, he made a movement toward his waistband as he raised his arms. Officer Racioppo patted down defendant, felt a hard object in his left jacket pocket and recovered a gun.

Defendant was arrested and charged with criminal possession of a weapon. He moved to suppress the gun, and Supreme Court held a hearing at which Officer Racioppo was the sole witness. After the hearing, based on the foregoing description of the incident, Supreme Court denied defendant's motion to suppress. The Appellate Division affirmed, holding that

"[t]he detailed anonymous tip authorized the officers to exercise their common-law right of inquiry only and did not provide reasonable suspicion to stop and frisk the defendant. Nevertheless, a frisk was justified by the defendant's conduct thereafter. Specifically, upon finding his path blocked, the defendant reached toward his waistband, whereupon the officers possessed reasonable suspicion for the forceable stop and frisk that revealed the defendant's possession of a .25 caliber handgun" (People v. Moore, 13 A.D.3d 395, 396-397, 785 N.Y.S.2d 536 [2004] [citations omitted]).

Although we agree with the Appellate Division that the anonymous tip authorized only an inquiry, the police here failed to simply exercise their common-law right to inquire. Instead — in ordering him at gunpoint to remain where he was — the police forcibly stopped defendant as soon as they arrived on the scene. Because the officers did not possess reasonable suspicion until after defendant reached for his waistband, however—by which time defendant had already been unlawfully stopped—the gun should have been suppressed. Defendant's later conduct cannot validate an encounter that was not justified at its inception (see People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]; People v. William II, 98 N.Y.2d 93, 98, 745 N.Y.S.2d 792, 772 N.E.2d 1150 [2002]).

In De Bour, we set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime (De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; see also People v. Hollman, 79 N.Y.2d 181, 184-185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992]). The Court's purpose in De Bour was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations. Having been the basis for decisions in likely thousands of cases over the past 30 years, De Bour has become an integral part of our jurisprudence.

Here, the gunpoint stop unquestionably constituted a seizure of defendant's person—De Bour's level three — and required reasonable suspicion (see People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958 [1980] [where police draw their firearms and order a suspect to "freeze," this is a seizure, the propriety of which is measured by the reasonable suspicion standard]; People v. Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359 N.E.2d 402 [1976] [ordering a suspect to "freeze" with guns drawn amounts to a seizure of the suspect by police]).

An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip (see Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 [2000]; William II, 98 N.Y.2d at 99, 745 N.Y.S.2d 792, 772 N.E.2d 1150). Indeed, in J.L., a unanimous United States Supreme Court held that an anonymous tip regarding a young Black male standing at a particular bus stop, wearing a plaid shirt and carrying a gun, was insufficient to provide the requisite reasonable suspicion to authorize a stop and frisk of the defendant.

The State argued in J.L. that the tip was sufficient to justify the police intrusion because the defendant matched the detailed description provided by the tipster. The Supreme Court held, however, that reasonable suspicion "requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person" (529 U.S. at 272, 120 S.Ct. 1375). The Court further explained that an anonymous tip could demonstrate the tipster's reliability and thus provide reasonable suspicion of criminal activity only if it predicted actions subsequently engaged in by the suspect.

Here, the tip did not provide any predictive information, nor did it accurately portray the alleged criminal activity. The tipster reported a dispute involving a man with a gun, but when the police arrived within a minute of receiving the radio call, they did not find a dispute in progress. Under J.L. and William II, such a tip was insufficient to afford the police reasonable suspicion of criminal activity, and thus did not support the gunpoint stop.

That defendant began walking away from the scene when the police arrived does not render the gunpoint stop permissible. As the Appellate Division recognized, the anonymous tip triggered only the police officers' common-law right of inquiry. This right authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so. Thus, defendant remained free to continue about his business without risk of forcible detention (see People v. May, 81 N.Y.2d 725, 728, 593 N.Y.S.2d 760, 609 N.E.2d 113 [1992] ["The police may not forcibly detain civilians in order to question them ... without a reasonable suspicion of criminal activity and once defendant indicated ... that he did not wish to speak with the officers, they should not have forced him to stop without legal grounds to do so. Any other rule would permit police seizures solely if circumstances existed presenting a potential for danger" (citation omitted)]).

Indeed, the very right to be let alone — the right of citizens not to be stopped at gunpoint by police, based on anonymous tips—is the distinguishing factor between the level of intrusion permissible under the common-law right of inquiry and the...