People v. Thornton
| Decision Date | 08 January 1998 |
| Citation | 667 N.Y.S.2d 705,238 A.D.2d 33 |
| Parties | , 1998 N.Y. Slip Op. 214, 1998 N.Y. Slip Op. 263 The PEOPLE of the State of New York, Appellant, v. Lavonne THORNTON, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Anthony M. Capozzolo, of counsel (Donald J. Siewert, on the brief, Robert M. Morgenthau, attorney), for appellant.
Robert N. Lerner, for defendant-respondent.
Before ROSENBERGER, J.P., and NARDELLI, WALLACH, WILLIAMS and COLABELLA, JJ.
At about 10:10 PM, on October 13, 1995, Officer David Moser, Sergeant Glenn Hallahan, and Officer Thomas Faylin, all in plain clothes, were patrolling in an unmarked car driven by Sergeant Hallahan. Officers Moser and Faylin had their shields suspended visibly around their necks. The officers observed two young men on bicycles circling the intersection of Fifth Avenue and 116 Street. The officers had not received any report of a crime in progress in that area, nor did they know the bicyclists. They pulled alongside the young men. Moser called out, "Hey, fellows, what's up, how are we doing?" Neither man responded, and the defendant, upon this approach, turned his bicycle and quickly rode off in a different direction.
The officers then made a U-turn across 116 Street and began following the defendant. They dropped off Officer Faylin between Madison and Fifth Avenues. After the police car passed the defendant, he quickly stopped and jumped off his bicycle. Officer Moser looked back and saw the defendant remove a gun from his waistband and hurl it over a fence into a wooded lot. The defendant was then placed under arrest. When Officer Moser recovered the gun, he remarked to Sergeant Hallahan that it was unloaded. From the back seat of the car, the defendant observed, "Yeah, I know the gun's unloaded." The defendant had not yet been read his Miranda rights.
At the suppression hearing, the court found that Officer Moser's "Hey, fellows ..." query amounted to a Level I De Bour inquiry (see, People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), and that since the officers had no "objective credible reason" to question the men, as required by De Bour, the defendant was well within his rights not to respond to the inquiry and to pedal away. The court then found that, this being the case, the officers had no basis for pursuing him. The motion court suppressed the gun and the statement, on the grounds that both the discarding of the gun and the making of the statement directly resulted from the illegal police pursuit. The court then dismissed the indictment. The People now appeal.
In People v. De Bour, supra, the Court of Appeals recognized four escalating levels of police intrusion and set forth the types of circumstances that would justify each level of intrusion. A Level I intrusion, "[t]he minimal intrusion of approaching to request information", requires "some objective credible reason for that interference not necessarily indicative of criminality" (id. at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). 1 The defendant contended, and the motion court agreed, that Officer Moser's query "Hey, fellows, what's up, how are we doing?" was a Level I inquiry. We disagree.
Drawing the attention of the police may have made the defendant and his companions feel coerced or interrogated, regardless of the words used. What the defendant felt, standing alone, cannot mandate suppression.
A rule that turned facially innocuous words into a Level I inquiry based on the defendant's subjective reaction would be unworkable. It would unfairly stifle officers who act courteously and politely in good faith. It would operate to create a greater estrangement between the police and citizenry, where greater closeness and understanding instead are required. We could hardly say that the police cannot greet young men who are outside at night in a high-crime area that is also a minority neighborhood. In practical terms, such a rule would ill serve law-abiding residents of high-crime neighborhoods, who can feel reassured and protected by an officer's friendly greeting. Further, equal protection forbids a judicial rule that allows people of a certain ethnicity, or residents of a particular neighborhood, to presume that a greeting is a threat, while people with other demographic traits must take the officers' statements at face value.
We note that language alone is not now and has never been a safe harbor. A sham greeting that is clearly an inquiry is still subject to De Bour Level I analysis. The officers' bad faith was simply not shown in the instant case.
"Police pursuit is regarded as significantly impeding a person's freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed" (People v. Reyes, 199 A.D.2d 153, 155, 605 N.Y.S.2d 262, affd. 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961). By contrast, mere surveillance need not be justified by reasonable suspicion. The police may "continue observation provided that they do so unobtrusively and do not limit defendant's freedom of movement by so doing" (People v. Howard, 50 N.Y.2d 583, 592, 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).
Here, the officers's subsequent actions are more properly characterized as observation than as pursuit. The police car followed ...
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