| People v Reyes |
| 2010 NY Slip Op 00568 [69 AD3d 523] |
| January 28, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent v CarlosReyes, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Molly E. Presant of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered March 19, 2008,convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, andsentencing him, as a second felony offender, to a term of 1½ to 3 years, reversed, on thelaw and the facts, the motion to suppress physical evidence and statements granted, the pleavacated, and the matter remanded for further proceedings.
At a pretrial hearing on defendant's motion to suppress, arresting police officer Peraltatestified that: on August 26, 2007, he and his partner received a radio dispatch in their patrol carthat a 911 call had been received "about a dispute with a knife" at a location at St. NicholasAvenue in Manhattan. The officers had no description of the alleged perpetrator and were nottold the identity of the 911 caller.
When the officers arrived at the location, Peralta observed two men standing in front of astore; they pointed at defendant, who was walking away from them down the middle of thestreet, and said, "That's him, that's him." Without first speaking to the men, the officersapproached defendant and attempted to apprehend him, but he resisted and fled into a nearbyapartment building.
The officers were admitted into the building and directed to an apartment, whose front doorwas latched and could only be opened a few inches. After Peralta's partner reached inside tounlatch the door and defendant tried to bar his entry, the officers sprayed Mace on defendant andkicked the door open. Defendant exited the apartment through a window and hid in the basementof the building, where the officers arrested and searched him. The officers found a gravity knifeand an imitation revolver on defendant's person that they had not observed before.
Later that evening, Peralta spoke to the men he had seen standing in front of the store, who itturned out were its owners. They now told Peralta, for the first time, that defendant had stolenlottery tickets from the store, and then returned with winning tickets which they refused tohonor. When defendant displayed what they thought was a revolver, they called the police. Theowners were standing outside the store when the officers arrived, and pointed out defendant.
Before trial, defendant moved for an order suppressing the gravity knife and the imitation[*2]revolver that the officers seized, as well as statements thatdefendant made to the police after his arrest, on the ground that they lacked probable cause tostop, arrest and search him. The court denied the suppression motion, finding that the officers'knowledge of the 911 call about a knife dispute, when coupled with the store owners' pointing todefendant when the officers arrived at the scene, gave them reasonable suspicion that defendantwas involved in the dispute, which escalated when defendant took flight.[FN*]
The motion to suppress should have been granted because the officers lacked valid groundsto forcibly detain defendant on the street and then pursue him when he fled. In evaluating thepropriety of the police action, we must consider whether it was justified at its inception andwhether it was reasonably related in scope to the circumstances leading to the encounter(People v De Bour, 40 NY2d 210, 215 [1976]; People v Cantor, 36 NY2d 106,111 [1975]). In De Bour, the Court of Appeals set forth a four-level test for evaluatingstreet encounters that the police initiate. The first three levels are relevant: level one permits apolice officer to request information from an individual and merely requires that the request besupported by an objective, credible reason, not necessarily indicative of criminality; leveltwo—the common-law right of inquiry—permits a somewhat greater intrusion,short of a forcible seizure, and requires a founded suspicion that criminal activity is afoot; levelthree, authorizing an officer to forcibly stop and detain an individual, requires a reasonablesuspicion that the particular individual was involved in a felony or misdemeanor (40 NY2d at223; see also People v Hollman, 79 NY2d 181, 184-185 [1992]).
Flight alone, even if accompanied with equivocal circumstances that would justify a policerequest for information, does not establish reasonable suspicion of criminality and is insufficientto justify pursuit, although it may give rise to reasonable suspicion if combined with otherspecific circumstances indicating the suspect's possible engagement in criminal activity(People v Holmes, 81 NY2d 1056, 1057-1058 [1993]). Specific circumstances couldinclude a description of the perpetrator or the alleged crime (see People v Woods, 98NY2d 627 [2002]). Here there were no such circumstances.
When the officers arrived at the scene, no criminal activity was in progress. They arrivedknowing only that a 911 call had been received about a vaguely described dispute with a knife;they lacked a description of the suspect and did not know who had called the police. The twounidentified men they encountered pointed out defendant without accusing him of any specificacts. Neither defendant's knife nor his imitation revolver was visible to the officers, and he wasnot engaged in any suspicious activity.
Under these circumstances, the officers would have been justified in conducting a level oneinquiry by attempting to question defendant to clarify the situation, or in conducting a level twoinquiry under the founded suspicion that defendant was involved in criminal activity. However,the officers' attempted detention of defendant when he tried to leave the location and theirpursuit of him into the apartment building constituted an unjustified level three forcible seizurebecause the police lacked reasonable suspicion that defendant had committed a crime.[*3]
In Matter of Manuel D. (19 AD3d 128 [2005], lv denied 5NY3d 714 [2005]), this Court found, under similar circumstances, that the police had aninsufficient basis for chasing after and arresting a fleeing suspect and charging him with resistingarrest. The officers in Manuel D. responded to a radio dispatch about a report of apossible burglary in progress at a particular location; they lacked any description of the allegedperpetrators and did not know whether the caller was reliable. When the officers approached thesuspect, he was not acting suspiciously, but he fled when the officers questioned his companion.
While, as the dissent points out, it can be discerned from the case law of this Court that"drawing the attention of the police to a person leaving a scene can provide reasonablesuspicion" of criminality justifying a forcible seizure, we have never found that the fact thatattention was drawn, by itself, is sufficient to give rise to reasonable suspicion. We have insteadadhered to the well established principle that whether the police have reasonable suspiciondepends on the entire circumstances of each case (see People v Evans, 65 NY2d 629[1985]).
In the cases on which the dissent relies, where reasonable suspicion was found, variousincriminating factors were present in addition to a third party's direction of the police's attentionto the suspect. These factors included the suspect's matching a description (People v Jenkins, 44 AD3d 400[2007], lv denied 9 NY3d 1007 [2007] [two black male suspects observed leaving adelicatessen by police on lookout for two black men who had been robbing delicatessens in thearea]; People v Davila, 37 AD3d305 [2007], lv denied 9 NY3d 842 [2007] [suspect fit description of perpetrator ofviolent crime]; People v Cephas, 240 AD2d 169 [1997], lv denied 90 NY2d 938[1997] [suspect was only one of three people in vicinity who matched a description of a blackmale wearing a brown jacket]). In some cases, the police observed the suspect in close proximityto recent, definite criminal activity (People v Rosa, 67 AD3d 440 [2009] [immediately after hearinggunfire, officer saw several people pointing at defendant, who was very close to the gunfire, andsaw victim lying on ground]; Davila, 37 AD3d at 306 [after receiving a report that aviolent crime had just been committed in a park, police saw suspect near the park]; People vDickerson, 238 AD2d 147 [1997], lv denied 90 NY2d 857 [1997] [police arrived atscene and observed suspect less than 30 seconds after receiving report]; People vHurtado, 160 AD2d 654 [1990], lv denied 76 NY2d 789 [1990] [after hearinggunshots, officers saw third party drawing suspect to their attention]).
In this case, the store owners' direction of the officers' attention to the suspect withoutrelating it to any specific event did not provide a basis for the officers' reasonable suspicion.Accordingly, we find that the suppression motion should have been granted.Concur—Catterson, Acosta and Freedman, JJ.
Sweeny, J.P., and Buckley, J., dissent in a memorandum by Buckley, J. as follows: VeteranPolice Officer Peralta, who had participated in approximately 200 arrests, testified at thesuppression hearing that he and his partner were on uniformed patrol in a marked car when theyreceived a radio run of a dispute involving a knife or possibly a gun at a location in Manhattan.When the officers arrived at the scene and exited their car, two men, standing in [*4]front of a store at the address specified in the radio run, pointed atdefendant, who was walking away in the middle of the street, and stated, "That's him, that's him."The officers approached and attempted to apprehend defendant, who struggled and fled into anearby apartment building.
A building resident let the officers in and directed them to a particular apartment. Theofficers could only open the door a few inches, since it was chained. As Officer Peralta's partnerreached in to unlatch the chain, defendant closed the door on his arm. The officer sprayed Maceand kicked the door in. Defendant fled through a window to the basement, where the officersfound him hiding behind some pipes. As the officers took defendant into custody, he protested,"I didn't do it, I didn't do it." The officers found a gravity knife and an imitation revolver indefendant's pocket. Subsequently, the police spoke with the two men who had directed theirattention to defendant. They explained that they were the store owners and had made the 911 callfollowing an incident with defendant.
I would affirm the hearing court's finding that the police had reasonable suspicion to pursueand detain defendant, who was departing the scene while two people called the officers' attentionto him. Defendant objects that the two men did not expressly tell the officers he had committed acrime. However, the officers reasonably interpreted the unsolicited pointing and exclamation,"That's him, that's him," by the men standing in front of the precise address relayed in the radiotransmission, as accusatory (see Peoplev Davila, 37 AD3d 305 [2007], lv denied 9 NY3d 842 [2007]), rather than arevelation of an epiphany or some other criminologically inapplicable statement. Underappropriate circumstances, even volunteered pointing alone can be "interpreted as a nonverbalaccusation that has often been recognized as a significant factor justifying police action" (People v Rosa, 67 AD3d 440[2009]).
Matter of Manuel D. (19 AD3d128 [2005], lv denied 5 NY3d 714 [2005]), relied on by the majority, bears littleresemblance to the instant case. In Manuel D., the officers received a radiocommunication of a burglary involving four males at a certain residence. Arriving at the scene,the police saw three men in the vicinity of a parked car, whom they approached and asked,"what's going on, guys." One individual responded, "nothing," at which point the appellant fled.(Id. at 129.) The police gave chase and arrested the appellant, who was found guilty ofresisting arrest. Notably absent from that fact pattern is anyone directing the officers' attention tothe appellant in an accusatory manner, such as occurred here. Had Officer Peralta pursueddefendant merely upon sighting him or upon flight, Manuel D. would be instructive.
The instant case is more akin to People v Cephas (240 AD2d 169 [1997], lvdenied 90 NY2d 938 [1997]), where "[t]he police had reasonable suspicion to stop anddetain defendant, who matched the radio transmission, received seconds earlier, of a black malewearing a brown jacket, and who was the only person in the vicinity, other than a man and awoman who were both standing on the steps of the building indicated in the radio run and werepointing at the defendant and telling the police 'that's him' " (citation omitted).
Similarly, in People v Jenkins(44 AD3d 400 [2007], lv denied 9 NY3d 1007 [2007]), during an early Novembermorning, the police were patrolling an area where there had been a pattern of delicatessenrobberies by two black men using a getaway car; two black men exited a delicatessen, and one ofthem removed a ski mask. A man followed them out of the store, looked at the officers, andpointed at the two men, which provided reasonable suspicion that a crime had been committed.
The vague descriptions of "a black male wearing a brown jacket" in Cephas and"two black men" with a getaway car in Jenkins (at 401) do not render those casesinapposite; the salient fact is [*5]that people directed the officers'attention to the defendant under circumstances that raised a reasonable suspicion of criminality.Indeed, in People v Dickerson (238 AD2d 147 [1997], lv denied 90 NY2d 857[1997]), there was a radio report of a man, of unspecified description, with a gun in a particularrestaurant. As the police approached the location, a man in the street told them, "the man you'relooking for is in the restaurant" (id. at 148), and as they entered, a person behind thecounter pointed at the defendant. Neither person explicitly stated that he was the one who hadtelephoned the police or that the defendant possessed a firearm; nevertheless, the unsoliciteddeclaration and pointing were found to provide reasonable suspicion. Under the circumstances,the pointing and statement, "That's him, that's him" in the present case was the functionalequivalent of the pointing and statement "the man you're looking for is in the restaurant" inDickerson.
This Court has consistently found that drawing the attention of the police to a person leavinga scene can provide reasonable suspicion (see Rosa, 67 AD3d 440 [2009];Davila, 37 AD3d 305 [2007]; People v Brown, 266 AD2d 77 [1999], lvdenied 95 NY2d 794 [2000]; People v Lopez, 258 AD2d 388 [1999], lvdenied 93 NY2d 1022 [1999]; People v Hurtado, 160 AD2d 654 [1990], lvdenied 76 NY2d 789 [1990]). While Davila, Brown, and Lopez,involved one or more people chasing the defendant while waving at the police or pointing,civilian pursuit is not a requirement for reasonable suspicion. For example, in Rosa, anofficer heard gunshots, and in close temporal and spatial proximity thereto saw several peoplepointing at the defendant, who was walking away and looking over his shoulder. Similarly, inHurtado (at 654), the police heard gunshots and saw a store manager pointing at thedefendant's vehicle and yelling, "That's him, get him."
The overriding principle in all those cases is that the bystanders' verbal or nonverbalexpressions could reasonably be viewed as communicating that the defendant had committed acrime. I would follow those precedents and affirm the determination that there was reasonablesuspicion.
Footnote *: After the court's decision,defendant pleaded guilty to attempted robbery in the third degree. However, as the Peopleconcede, defendant did not waive his right to appeal the suppression ruling since the court didnot explain the appeal waiver at any time and defendant did not sign a written waiver.