People v. Solano
| Decision Date | 27 December 2007 |
| Docket Number | 100726. |
| Citation | 46 A.D.3d 1223,848 N.Y.S.2d 431,2007 NY Slip Op 10414 |
| Court | New York Supreme Court — Appellate Division |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAFAEL SOLANO, Appellant. |
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered August 31, 2006, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the fourth degree.
In the early afternoon of November 14, 2005, Eric Hesch of the City of Schenectady Police Department saw David Messmore, who was known to Hesch to be a substance abuser, walking towards a corner store on Eastern Avenue in the City of Schenectady, Schenectady County. Hesch pulled his unmarked police car alongside Messmore and spoke with him briefly about the neighborhood. Messmore indicated a nearby section where drug trade was occurring. As they talked, a car with tinted windows and North Carolina plates drove by, slowed down and honked its horn. According to Hesch, Messmore "waived [the car] off" after which Messmore turned around, got into his car and followed the other car around the corner. Hesch then turned the same corner and saw both cars pulled over on the right side of the road. Hesch pulled behind the cars which, after a moment or two, drove away. Hesch then drove a short distance away, turned around and found both cars pulled over by the right side of the road on a different block, with Messmore's car parked behind the car with North Carolina plates. Hesch pulled across the road, placing the front of his vehicle in close proximity to the front of the North Carolina car. Although he did not see Messmore in the back seat of the North Carolina car prior to that time, he and his partner, after quickly approaching, discovered him to be there. They also discovered defendant in the front passenger seat. Hesch then radioed for backup reinforcement and one of the backup officers, while conducting a pat-down frisk of defendant, ran his fingers under the elastic at the cuff of defendant's sweatpants and two pieces of crack cocaine fell out. Defendant was handcuffed and taken to the station where a subsequent search revealed nine more bags of crack cocaine in defendant's possession.
Defendant appeals from the judgment convicting him of criminal possession of a controlled substance in the fourth degree, and argues only that the police lacked a reasonable suspicion to believe that he was involved in criminal activity and that the stop and seizure were therefore illegal and the drugs should be suppressed. We agree and reverse.
It is well settled that police officers, in order to legally forcibly stop and seize an individual, must have articulable, reasonable suspicion that the individual was involved in criminal activity (see People v De Bour, 40 NY2d 210, 223 [1976]; People v McNair, 36 AD3d 1073, 1074 [2007], lv...
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