People v. Spencer

• Court: New York Court of Appeals
• Citation: 622 N.Y.S.2d 483,84 N.Y.2d 749,646 N.E.2d 785
• Parties: , 646 N.E.2d 785, 63 USLW 2491 The PEOPLE of the State of New York, Respondent, v. Clive SPENCER, Appellant.
• Decision Date: 17 January 1995

Page 483

622 N.Y.S.2d 483 84 N.Y.2d 749, 646 N.E.2d 785, 63 USLW 2491 The PEOPLE of the State of New York, Respondent,
v.
Clive SPENCER, Appellant. Court of Appeals of New York. Jan. 17, 1995.

Page 484

[84 N.Y.2d 750] [646 N.E.2d 786] Jay H. Schwitzman, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., of Kings County, Brooklyn (Roseann B. MacKechnie, Bruce D. Austern, Victor Barall and Anthea H. Bruffee of counsel), for respondent.

[84 N.Y.2d 751] OPINION OF THE COURT

CIPARICK, Judge.

The question presented is whether the police may stop a moving vehicle in order to request information of the driver concerning the whereabouts of a criminal suspect. We conclude that the stop in this case was an unreasonable seizure within the meaning of the Fourth Amendment.

I

On May 17, 1989, Police Officers Edward Alonge and Donald Conceicao were on routine patrol in a marked radio car when they received a radio report that a woman had been assaulted with a gun by her boyfriend the previous day. At 11:20 P.M., the officers picked up the complainant and, with her in the car, drove around the neighborhood searching for the suspect. According to the testimony of Officer Alonge, they drove around for "No more than four or five minutes" before the complainant saw defendant seated behind the wheel of a double-parked car and stated that he was a friend of her

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[646 N.E.2d 787] boyfriend's and that the latter might be nearby. At this time, defendant's vehicle began moving. The officers followed defendant and pulled him over using their turret lights and car horn. Defendant halted his vehicle on the next block and both officers approached the car carrying lighted flashlights. As the officers drew near they observed a female passenger. Upon shining their flashlights into the interior of the vehicle, the officers observed at the passenger's feet a clear plastic bag containing green vegetable matter which they believed to be marihuana. The officers asked defendant and his passenger to exit the vehicle.

While defendant was outside the vehicle, Officer Alonge observed the butt of a revolver protruding from underneath the driver's seat on the floor of the car. The officers determined that the gun was loaded and placed defendant under arrest. They permitted the passenger to leave the scene after defendant asserted she had nothing to do with the alleged marihuana. Defendant was charged with criminal possession of a weapon in the third degree and criminal possession of marihuana in the fourth degree.

[84 N.Y.2d 752] Defendant moved to suppress the physical evidence on the ground that its seizure violated his constitutional rights. The suppression court denied defendant's motion, finding that the police officers in this case had a right to request information of defendant and could stop his car in order to effectuate that right. The court stated: "at the time the police resolved to exercise their right to request information, defendant's vehicle was in motion. Under these circumstances, common sense demands that they be permitted to stop it."

The Appellate Division affirmed, holding that the police acted reasonably in stopping defendant's car to request information concerning a suspect's whereabouts, 193 A.D.2d 90, 602 N.Y.S.2d 412. The Court relied principally on People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864, cert. denied 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400), in which we held that an automobile stop made pursuant to a uniform, nonarbitrary, roving roadblock was constitutionally permissible.

On this appeal, defendant argues that the Appellate Division erred in holding that the police could validly stop his vehicle in order to request information of him. We agree and therefore reverse.

II

Although the right to stop a vehicle is generally analogous to the right to stop a pedestrian, police/motorist encounters must be distinguished from police/pedestrian encounters when the police are operating on less than reasonable suspicion. This is because "the obvious impact of stopping the progress of an automobile is more intrusive than the minimal intrusion involved in stopping a pedestrian" and constitutes "at least a limited seizure subject to constitutional limitations" (People v. John BB., 56 N.Y.2d 482, 487, 453 N.Y.S.2d 158, 438 N.E.2d 864, supra ), whereas the common-law right of inquiry--much less the right to request information--does not include the right to unlawfully seize (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).

We have stated, time and again, that the stop of an automobile is a seizure implicating constitutional limitations (People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113; Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218, supra; Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, supra; see, Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 ["stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of (the Fourth Amendment), even though the purpose of the stop is limited and the resulting detention quite brief"]. Contrary to the urging of the dissent that we allow preventative "informational stops" [84 N.Y.2d 753] so long as some articulable basis exists for that interference, police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a

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[646 N.E.2d 788] crime (see, People v. Harrison, 57 N.Y.2d 470, 476, 457 N.Y.S.2d 199, 443 N.E.2d 447 [an automobile stop is "a limited seizure of the person which at least requires reasonable suspicion"]; Sobotker, 43 N.Y.2d, at 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218; Ingle, 36 N.Y.2d, at 417-420, 369 N.Y.S.2d 67, 330 N.E.2d 39).

We reaffirmed these principles recently in People v. May 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113, supra, where the defendant and a female companion were sitting in a parked car on a deserted street known for criminal activity. When two police officers in a patrol car approached with red turret lights and a spotlight, defendant started his car and slowly pulled away. Defendant was ordered to pull over. We held that the police officers' premise for that order--the common-law right of inquiry--did not satisfy Fourth Amendment standards: "the stop was proper only if the officers had a reasonable suspicion of criminal activity" (id., at 727, 593 N.Y.S.2d 760, 609 N.E.2d 113).

Of course, nothing prevented the police in May from making a common-law inquiry of the individuals in the vehicle while they were still parked, based on the second level "founded suspicion that criminal activity is afoot", which permits interference "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 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). But we have made clear that the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle (see, Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447, supra [police needed only articulable basis to approach parked car and request information but, absent reasonable suspicion, officers could not forcibly detain or constructively stop defendants by ordering them to remain in car]. Thus, once the defendant in May indicated his unwillingness to speak to the officers by pulling away, they should not have forced him to stop absent a reasonable suspicion of criminal activity (May, 81 N.Y.2d, at 728, 593 N.Y.S.2d 760, 609 N.E.2d 113). "Any other rule", we stated, "would permit police seizures solely if circumstances existed presenting a potential for danger" (id., at 728, 593 N.Y.S.2d 760, 609 N.E.2d 113).

Clearly, as in cases involving the forcible detention of pedestrians, the instant stop of defendant was a seizure. At the moment defendant was pulled over the encounter lost the [84 N.Y.2d 754] consensual characteristics which mark permissible first level intrusions under the De Bour four-part test (see, People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, supra). The question we must address in this case is whether that seizure was reasonable.

III

The reasonableness of a seizure must be judged "by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests" (People v. Scott, 63 N.Y.2d 518, 525, 483 N.Y.S.2d 649, 473 N.E.2d 1; People v. John BB., supra; Delaware v. Prouse, supra). Important factors in that balancing analysis are the effectiveness of the procedure in relation to the governmental interest to be promoted, and "the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out" (Scott, 63 N.Y.2d, at 525, 483 N.Y.S.2d 649, 473 N.E.2d 1, supra ).

Applying this balancing analysis to the instant case, we conclude that the nature and degree of the police intrusion outweighed the governmental interest at issue. It is not enough, contrary to the dissent's view, that articulable governmental interests supported the stop. While the nature and degree of the governmental interest at issue here--investigation and detection of past criminal conduct--is undoubtedly significant, it does not implicate the same important social objectives that are at issue when police are investigating recent or ongoing suspected criminal activity (see, United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d 604).

In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604, supra, the...