| People v Bowden |
| 2011 NY Slip Op 06183 [87 AD3d 402] |
| August 4, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v LatishaBowden, Respondent. |
—[*1] Steven Banks, The Legal Aid Society, New York (Michael McLaughlin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or about March 31,2010, which granted defendant's motion to suppress physical evidence and statements, reversed,on the law and the facts, and defendant's suppression motion denied. Appeal from order (samecourt and Justice), entered April 29, 2010, which effectively granted the People's motion forreargument, and, on reargument, adhered to the original decision, dismissed, as subsumed in theappeal from the prior order. Order (same court and Justice), entered on or about May 24, 2010,which dismissed the indictment, reversed, on the law, the indictment reinstated, and the matterremitted for further proceedings.
The hearing court erred in suppressing the physical evidence and defendant's statements.Based upon the testimony of the sole witness, Sergeant Robert Barnett, whose testimony thehearing court properly credited in its entirety, every aspect of the police conduct was properlyjustified by their observations and the information in their possession.
After taking into custody a man who was wanted in connection with a shooting incident, andreceiving from that man insufficient identification and conflicting information both as to hisname, which he initially gave as Jason Lawyer, and as to his address, the police determined thaton a previous occasion they had arrested a man by the name of Joshua Lawyer with an address of328 East 197th Street, apartment 4C. In order to confirm the arrested individual's identifyinginformation, Sergeant Barnett and three other police officers went to apartment 4C at 328 East197th Street in Manhattan, on June 28, 2008, at 2:30 a.m. When the police knocked at theapartment door, a female voice asked who was there, and the Sergeant said "It's the police. Can Ihave a word with you?" When Sergeant Barnett heard scuffling noises followed by the sound of awindow being opened, he sent two of the officers up to the roof of the building. Those twoofficers reported afterward to the Sergeant that once on the roof, they observed a figure emergefrom a fourth-floor window and ascend the building's fire escape to the roof, with an object inhand. Once the individual arrived on the roof, one of the officers announced "Police. Don't [*2]move."[FN*]The individual dropped a bag, which landed with a loud thud. One officer detained theindividual, identified at the hearing as defendant, and the other retrieved the dropped bag, whichwas made of canvas. Through the fabric of the bag the officer who picked it up could feel anL-shaped, hard object causing him to conclude that it was a gun. In fact, when he opened the bag,he found a loaded pistol as well as a magazine and five rounds within another bag containedwithin the outer bag.
It is true that the police did not initially have any information about the apartment's contentsor its occupants when they first approached the apartment, except that the accused perpetrator ofa shooting might have lived there. It is also true that individuals of whom the police have noreasonable suspicion of criminal activity have the right not to answer an officer's question, oreven to run from the police, without those acts creating grounds to detain that individual (seePeople v May, 81 NY2d 725, 728 [1992]; People v Howard, 50 NY2d 583, 586[1980], cert denied 449 US 1023 [1980]). However, we reject the dissent's view that thepolice had insufficient grounds to detain defendant by the time she arrived on the roof. Rather,we conclude that the totality of the information known to the police by the time defendant wasobserved on the roof holding the bag was sufficient to create a reasonable suspicion thatdefendant was involved in some criminal activity, entitling them, under People v DeBour (40 NY2d 210, 223 [1976]), to detain her and pat down the canvas bag she haddropped.
In People v Howard, the police had approached a man on the street, having no priorinformation regarding his criminal activity, merely because he was holding a vanity case andpurportedly looking "furtive," and they detained him when they caught up to him after he ranfrom them (50 NY2d at 587). Similarly, in People v May, the police detained two peoplebased on their being seated in a parked automobile on a deserted street at 2:30 a.m., and detainedthem after they drove off when the police approached. Here, in contrast, the police did not beginwith no information at all; rather, the apartment in question was the possible address of a mancharged with a shooting. When the apartment's occupant attempted to flee rather than respond tothe police when they arrived at the door, although that fact alone did not give them the right todetain defendant, they had no obligation to simply allow her to flee; they were entitled to pursueher, as in People v May, where the Court observed that although the officers had no legalbasis to stop the car when they did, they could have followed the car and run the plates todetermine whether it was stolen (81 NY2d at 728).
The officers' observations of defendant holding an object as she exited her apartment throughthe window and climbed up the fire escape to the roof, when considered together with theinformation that had led them to the apartment in the first place, provided justification for thepolice to identify themselves as police and direct her to stop once she reached the roof. By that[*3]point, their observations and the information known to themhad risen to the level of a reasonable suspicion that defendant had been or was then engaged incriminal activity, specifically, that she was trying to avoid the police's detection of somecontraband, possibly relating to the shooting underlying their initial approach to the apartment.This information justified a stop and frisk under People v De Bour.
There are certainly similarities between these circumstances and those in People vSingh (291 AD2d 419 [2002], lv denied 98 NY2d 655 [2002]), where police went toan apartment based on an anonymous tip of drugs contained there and received unresponsiveanswers from behind an apartment door, after which the apartment occupant attempted to flee byjumping out a second floor window and off the roof of a shed. However, due to the Singhdecisions's mixing of language applicable to De Bour level-two stops and that applicableto De Bour level-three stops, particularly since the Singh decision relied on caseswhere level-three stops were found to be justified, we decline to rely on Singh for theconclusion that only a level two right of inquiry was created there by the information possessedby the police. It is worth noting, however, that unlike the facts in Singh, the underlyinginvestigation here concerned an actual shooting, not an anonymous report of drug possession;this element necessarily creates in the minds of the investigating officers the constant spectre thata weapon might be uncovered in the course of investigation.
Having properly detained defendant, there was no impropriety in the officer's "frisk" or"patdown" of the bag. It was in defendant's "grabbable area" at the time of the stop, it wasretrieved moments after defendant was detained, and the thud it made upon being dropped aswell as the connection between the apartment and the shooting suspect gave the officers groundsto "pat down" the bag (see Matter of Gregory M., 82 NY2d 588, 591 [1993]; People vBrooks, 65 NY2d 1021, 1023 [1985]; People v Corbett, 258 AD2d 254, 255 [1999],lv denied 93 NY2d 898 [1999]). The testimony that defendant was "secured" before thebag was frisked did not render the frisk of the bag improper (see People v Smith, 59NY2d 454 [1983]; People v Wylie, 244 AD2d 247 [1997], lv denied 91 NY2d946 [1998]). Nor does it matter that Sergeant Barnett did not testify that the officers wereconcerned for their safety at the time defendant was detained and her bag patted down; that theyhad reason to suspect the presence of a gun at that moment is enough (People vFernandez, 88 AD2d 536 [1982]).
The hearing court's reliance on People v Gokey (60 NY2d 309 [1983]) wasmisplaced. Gokey stands for the proposition that the police may not perform awarrantless search of a duffel bag simply because it had been within the grabbable area ofa suspect at the time of his arrest (id.). Importantly, in Gokey there was noconcern about a gun, and the Court observed that the police left the bag on the ground when theyarrested the defendant, indicating a lack of any sense of exigency (id. at 311).Gokey does not deal with circumstances in which police, upon taking hold of adefendant's bag immediately after detaining that defendant, have reason to be concerned that itcontains a gun, and upon palpation, can feel the presence of a gun within.
When, upon feeling the contents of the bag, the officer felt the distinctive weight and L-shapeof a firearm, he was justified in searching the bag (see People v Prochilo, 41 NY2d 759,762 [1977]; People v Corbett, 258 AD2d at 255). Accordingly, the gun contained in thebag and defendant's subsequent statements were lawfully obtained. Concur—Andrias,Saxe and Manzanet-Daniels, JJ.
Tom, J.P., and Freedman, J., dissent in a [*4]memorandum byTom, J.P., as follows: Supreme Court properly suppressed a handgun and ammunition recoveredfrom a bag defendant Latisha Bowden dropped upon being detained at gunpoint by police. Whileher activities provided a founded suspicion that criminality was afoot so as to warrant theexercise of the common-law right to inquire, they fell short of providing the reasonable suspicionthat defendant was committing or about to commit a crime necessary to support a forcible stopand detention that might have justified the warrantless search of her effects (People v DeBour, 40 NY2d 210, 223 [1976]).
At a combined Huntley/Dunaway/Mapp hearing, the court heardtestimony from a single witness, Sergeant Robert Barnett, who was the supervisor of a teamconsisting of four officers who went to 328 East 197th Street in Manhattan in the early morningof June 28, 2008, arriving at approximately 2:30 a.m. In connection with an investigation into ashooting, the team had arrested one Joshua Lawyer, who was being held on a charge of attemptedmurder. Because Lawyer had provided them with more than one name and one address, theSergeant explained, their purpose in going to the East 197th Street location was "to verify he wasindeed who he said he was." When Sergeant Barnett, accompanied by his three fellow officers,knocked on the door of apartment 4C, a female voice quietly asked who was there. Afterinforming her that he was the police, the Sergeant heard "scuffling noises" followed by "thesound of a window opening up. It's very distinct." He instructed Officers Emhardth and Urquiagato go to the roof while he ran downstairs, leaving Officer Smith at the apartment door.
Officer Urquiaga later reported to Sergeant Barnett what had transpired on the roof, whichthe Sergeant related at the hearing. Officer Urquiaga had observed a "dark figure" emerge from afourth-floor window carrying "an object" and begin to ascend the fire escape. He and OfficerEmhardth took cover, drew their weapons and waited. As the figure appeared on the roof, OfficerUrquiaga said, "Police. Don't move," and the person, later identified as defendant, dropped thebag, which landed with "a loud thud."[FN1]Although it was dark on the roof, both officers used their flashlights.
Officer Urquiaga, without making any inquiry, placed defendant in custody and handed heroff to Officer Emhardth,[FN2]at which point she was "secured." Officer Urquiaga then retrieved the bag, which was made outof canvas and contained something heavy. He felt or "frisked" the bottom of the bag and detectedan L-shaped, metal object which, based on his training and experience, he believed to be a gun.He opened the canvas bag and found that it contained yet another bag, which he also opened,revealing a ".45 caliber firearm. [*5]Next to it was a clip andmagazine. And next to that were five live .45 caliber rounds."
Officer Urquiaga then asked defendant what she was doing on the roof, to which she repliedthat "she had this bag and she had—it didn't belong in her house, and she had to get it outof her house." Defendant was placed under arrest and transported to the 48th Precinct. While enroute, she made a second statement that she had not been aware of what was in the bag and thatshe thought it was a paperweight or some other kind of weight. At the precinct, at about 4:00a.m., she received Miranda warnings and gave a written statement.
The court found that the officers were justified in "pursuing Defendant onto the roof andstopping and detaining her on the roof." The court nevertheless suppressed the contents of thebag concluding that "there was no evidence or testimony of exigency or police safety that wouldtip the scales away from preserving Defendant's right to privacy" (citing People v Smith,59 NY2d 454, 458 [1983]). The court reasoned that "once Defendant was secured by the police,no exigency or safety issues existed that would necessitate the police officer's 'frisk' of the bag"(citing People v Gokey, 60 NY2d 309, 311 [1983]). Because the illegal search was thepredicate for defendant's arrest, the court held that the arrest was without legal basis and thereforesuppressed both the statement made by defendant in the police car and her subsequent writtenstatement.
On the People's motion for reargument, the court rejected their contentions that defendanthad abandoned the bag and that the police had a legitimate, though unarticulated concern for theirsafety, finding that they were not at the apartment to investigate a violent crime because theyalready had the shooter in custody. Additionally, the court noted that there was no testimonyconcerning any threat to the officers' safety, the bag was not within defendant's grabbable area,and defendant was already in custody and secured before the bag was retrieved and inspected.
On their appeal, the People contend that since the forcible detention of defendant was foundto have been "wholly proper" by the hearing court, this Court is foreclosed from considering theissue. They argue that the ruling is not adverse to the prosecution and forms no part of theirappeal because the People are not aggrieved by it (CPLR 5511; citing People vGoodfriend, 64 NY2d 695 [1984]). The People therefore do not attempt to justify thedetention, but proceed on the theory that since defendant's forcible detention was found "whollyproper," the only question for this Court's consideration is whether the "frisk" of the bag wasjustified. Specifically, the People suggest that the officers entertained legitimate concerns thatdefendant might have access to a weapon, which might pose a risk both to themselves andmembers of the public if not secured.
There is no question that the right to frisk is ancillary to a forcible stop and detention. "Acorollary of the statutory right to temporarily detain for questioning is the authority to frisk if theofficer reasonably suspects that he is in danger of physical injury by virtue of the detainee beingarmed" (De Bour, 40 NY2d at 223). However, the right accrues only where thecircumstances provide "reasonable suspicion that a particular person has committed, iscommitting or is about to commit a felony or misdemeanor" (id.; see People vVentura, 139 AD2d 196, 206 [1988]). Thus, whether the extent of the intrusion upondefendant's liberty by the arresting officers was justified under the circumstances is a questioncentral to this appeal.
It should require no repetition that New York recognizes four levels of official interferencewith an individual's liberty. The request for information is the most minimal and requires only"some objective credible reason" to approach the individual that does not necessarily implicatecriminal conduct (De Bour, 40 NY2d at 223). Second is the common-law [*6]right to inquire, which permits interference to the extent necessaryto gain explanatory information and requires "a founded suspicion that criminal activity is afoot"(id.). Third is a forcible stop and detention, which is only permissible when there isreasonable suspicion that a specific individual "has committed, is committing or is aboutto commit a felony or misdemeanor" (id.). By statute, an officer making a forcible stophas authority to conduct a frisk if a reasonable threat of physical injury is presented (CPL 140.50[3]). Finally, an officer may arrest an individual if there is probable cause to believe he or she"has committed a crime, or offense in his presence" (De Bour, 40 NY2d at 223).
In holding that the pursuit and detention of defendant on the roof by the arresting officerswas proper, the hearing court cited to People v Singh (291 AD2d 419 [2002], lvdenied 98 NY2d 655 [2002]). Significantly, Singh holds only that a defendant'sunresponsive and peculiar answers from behind the closed door of an apartment, together withhis attempt to flee by exiting through a second-floor window and jumping off a shed roofafforded police "with reasonable suspicion that criminal activity was afoot" (id. at 420), asecond-level encounter under De Bour. Thus, Singh does not support the hearingcourt's finding of a proper forcible stop, a third-level interference. It is well settled, however, thatreasonable suspicion of criminal activity supports only the common-law right to inquire,warranting official interference "to the extent necessary to gain explanatory information, butshort of a forcible seizure" (De Bour, 40 NY2d at 223). In the matter under review, thehearing court went on to suppress the physical evidence, concluding that while "the facts at issuedemonstrate that the police had reasonable suspicion to secure Defendant and inquire further,they did not make further inquiry until after the bag had been searched."
It is significant that the hearing court did not consider the circumstances sufficient to justify aforcible stop and detention; it simply found the detention of defendant by the officers to havebeen justified by their need to obtain an explanation for her conduct. This is clearly an erroneousconclusion. While the common-law right to inquire permits police greater latitude to interferewith the individual's freedom than a mere request for information, the level of interference mustremain "short of a forcible seizure" (id.). Since the officers' confrontation with defendantcan only be characterized as a forcible stop and detention, the court clearly erred in finding it tohave been justified by the need to obtain explanatory information.
The People identify no information available to the officers prior to the time the bag wassearched that would have led a reasonable person to conclude that defendant was involved in thecrimes of which she is accused. The People concede that the officers went to defendant'sapartment ostensibly to ascertain the identity of a person already held in custody in connectionwith a shooting. In any event, Sergeant Barnett testified that at the time the officers arrived at thelocation, they had no reason to believe that defendant was in any way connected with the crimethey were investigating. The majority purports to justify the forcible seizure of defendant bystating that because the officers observed defendant holding an object while exiting the windowof her apartment and climbing up the fire escape to the roof, there was "reasonable suspicion thatdefendant had been or was then engaged in criminal activity, specifically, that she was trying toavoid the police's detection of some contraband possibly relating to the shooting." This is purespeculation after the fact by the majority and not supported by the testimony of Sergeant Barnett.In fact, the two officers who confronted defendant on the roof did not testify and could not haveintimated their belief that defendant was engaged in any criminal activity let alone disposing ofcontraband related to the shooting as suggested by the majority. The officers had no idea whodefendant was or her connection, if any, to the suspect in custody. There is no [*7]evidentiary support for the majority's theory. Defendant's detentionis supported only by her act of leaving her apartment by a window carrying some object,climbing up the fire escape and emerging onto the roof, whereupon she was met by two officerswith weapons drawn, dropped the bag—either as directed or in response to illegal policeaction (People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]; see also People vGrant, 164 AD2d 170, 175-176 [1990], appeal dismissed 77 NY2d 926 [1991];cf. People v Reyes, 199 AD2d 153, 154 [1993], affd 83 NY2d 945 [1994],cert denied 513 US 991 [1994])—and was placed in handcuffs.
Even if defendant's flight under the circumstances could be said to have afforded the officerswith "founded suspicion that criminal activity is afoot," a second level confrontation (DeBour, 40 NY2d at 223), the permissible interference by the officers is limited to thecommon-law right to inquire and gain explanatory information, and does not extend to theimmediate forcible detention of defendant and the search of her bag.
In assessing the constitutionality of official intrusion upon the security and privacy of theindividual, De Bour requires that the reasonableness of each level of interference with anindividual's liberty of movement be assessed in view of the knowledge possessed by police atthat particular moment (De Bour at 216-217). The majority instead adopts the amorphousstandard of "the totality of the circumstances" and proceeds to "justify a stop by subsequentlyacquired suspicion resulting from the stop" (id. at 215-216). Such post hoc rationalizationwas expressly rejected by the Court of Appeals, which noted that its "reasoning is the samewhich refuses to validate a search by what it produces" (id. at 216). The majoritynevertheless upholds the subject search even though the circumstances that led the apprehendingofficers to become aware of the weapon they recovered did not begin to unfold until afterdefendant had been forcibly confronted and detained.
The holding in People v Howard (50 NY2d 583, 587 [1980], cert denied 449US 1023 [1980]) is instructive in the disposition of this appeal. There, the curiosity of twoplainclothes police officers was aroused when they observed Howard carrying a woman's vanitycase and looking "furtive." When they drove by in an unmarked car, one of the officers displayedhis shield and asked to speak to him. Howard ignored the request and, when the officerspersisted, ran away, clutching the vanity case to his chest. The officers gave chase on foot andpursued him into the basement of a building. Cornered, Howard discarded the case. One of theofficers recovered the case and opened it, revealing a .38 caliber handgun and packets of heroin.Howard was then arrested.
The Court of Appeals held that while the police officers had a reasonable basis to approachHoward and question him, "there was nothing that made permissible any greater level ofintrusion" (id. at 590). The Court noted that Howard "had a constitutional right not torespond" (id.). "Nor can the failure to stop or co-operate by identifying oneself oranswering questions be the predicate for an arrest absent other circumstances constitutingprobable cause" (id. at 591-592). The Court added that officers are not prevented fromconducting further "observation provided that they do so unobtrusively and do not limitdefendant's freedom of movement by so doing" (id. at 592). As to flight, "where, as here,there is nothing to establish that a crime has been or is being committed, flight, like refusal toanswer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit"(id.). The Court concluded: "The circumstances existing at the moment defendantHoward was seized . . . did not constitute probable cause for arrest. The opening ofthe vanity case cannot be justified as incident to a [*8]lawfularrest, nor since it was as the Trial Judge found outside the grabbable area can it be justifiedunder CPL 140.50 (subd 3). The contents of the vanity case must, therefore, be suppressed unlessdefendant abandoned it" (id.). Because the hearing court had found that Howard's act ofkeeping a firm hold on "the case during the entire chase belies intention to abandon" (id.at 593), it granted the defendant's motion to suppress and dismissed the indictment against him.
In the matter at bar, defendant was confronted by police not on the street but in her ownhome, the place to which Fourth Amendment protection against unreasonable search and seizurefinds particular application (see Silverman v United States, 365 US 505, 511 [1961]). Aperson approached in her home has no less "a constitutional right not to respond . . .[, to] remain silent or walk or run away" (Howard, 50 NY2d at 586). Nor may officers"pursue, absent probable cause to believe that the individual has committed, is committing, or isabout to commit a crime, seize or search the individual or his possessions, even though he ranaway" (id.; cf. People v Jenkins, 209 AD2d 164, 165 [1994]).
To prevail on their claim that the "frisk" of the bag carried by defendant was justified, thePeople must demonstrate reasonable suspicion that defendant was involved in the commission ofa crime (see People v May, 81 NY2d 725, 727 [1992]), thereby authorizing a forcibledetention, and that the officers reasonably suspected that they were in danger of physical injuryby virtue of the detainee being armed (De Bour, 40 NY2d at 223). When SergeantBarnett first spoke to defendant through her apartment door, he concededly had no more than an"objective credible reason" to request information (id.). The prosecution argued at thesuppression hearing that defendant's flight from the apartment established "founded suspicion,"in direct contravention to Howard, which holds that flight does not afford justification forpursuit.
Finally, the People argued that the sound made by the bag when defendant dropped itprovided the officers with reasonable suspicion and the basis to conduct a "frisk" of the bag.However, defendant had already been forcibly seized (at gunpoint) at the time Officer Urquiagaheard the "thud" arousing his suspicion as to what the bag might contain. Defendant was secured(in handcuffs) and handed off to an officer by the time the other officer began to search the bag,and the People have identified nothing up to that point that would connect defendant with thecommission of any crime or subject the officers to the threat of physical injury. Contrary to thePeople's contention at the hearing, defendant clearly had standing to contest the search of the bag,as reflected by the factors of possession, privacy and exclusive access. As stated in People vRamirez-Portoreal (88 NY2d at 111), defendant "was in actual and sole possession of it. Thebag was closed, evincing an effort to maintain the privacy it afforded." Here, defendant was inactual possession of the bag and was holding it when she was induced to drop it. The police thenforcibly detained defendant and, without making any inquiry to obtain information to suggest thecommission of a crime, began to search the bag, a clear violation of the permissible level ofinterference under De Bour. Finally, defendant's subsequent statement that the contents ofthe bag did not belong in the apartment "does not necessarily indicate that [s]he lacked the rightto exclude others from access to it" (Ramirez-Portoreal, 88 NY2d at 111-112). The baghad been kept in defendant's apartment, and there is no evidence to indicate that any other personwas provided with access.
Accordingly, the order granting suppression should be affirmed. [Prior Case History: 27Misc 3d 1203(A), 2010 NY Slip Op 50538(U).]
Footnote *: There is no evidence at all thatthe police directed or instructed the individual to drop the bag. After Sergeant Barnett testified ondirect examination that the officers said, "Police. Don't move," on cross-examination defensecounsel asked, "And they tell the individual to drop it, correct? Drop the bag?" When thewitness merely said, "I'm not sure exactly what they said. I know they said police, don't move,"defense counsel rephrased his question, to "They said police don't move, correct?" which thewitness confirmed.
Footnote 1: Sergeant Barnett did not knowwhether the officers told defendant to drop the bag, stating, "I'm not sure exactly what they said. Iknow they said police, don't move."
Footnote 2: Sergeant Barnett was not surewhether defendant was already in handcuffs at the time Officer Urquiaga passed her off toOfficer Emhardth.