| People v Morrow |
| 2012 NY Slip Op 05680 [97 AD3d 991] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v James Morrow,Respondent. |
—[*1] James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Lamont, J.), entered January 11,2012 in Albany County, which granted defendant's motion to suppress evidence.
In December 2010, police had received information that drugs were being sold from anapartment in a building located at 246 Lark Street in the City of Albany. After receiving thatinformation, police observed defendant entering the apartment building, then leaving 30 minuteslater and walking down an adjacent street. The police stopped defendant, asked him for his nameand, when he denied being at the apartment building, ordered him to place his hands on his headand spread his legs. When defendant complied, a bag of marihuana fell out of his pants leg.Defendant was then taken into custody and brought to police headquarters, where, prior to beingsubjected to a strip search, he admitted that he had cocaine secreted on his person. As a result,defendant was charged by indictment with criminal possession of a controlled substance in thethird and fourth degrees, as well as unlawful possession of marihuana. He subsequently moved tosuppress the physical evidence seized from him by the police, as well as statements he made afterbeing stopped on the street. After a hearing, Supreme Court found that the police were not legallyjustified in conducting a frisk of defendant's person after they stopped him on the street andgranted defendant's motion to suppress. The People now appeal.[*2]
We affirm. When defendant was stopped, the police had,at best, a "common-law right to inquire" regarding his activities, as well as his identification(People v De Bour, 40 NY2d 210, 223 [1976]). At that moment, they did not have reasonto suspect that defendant was involved in any criminal activity, nor did they have the right tofrisk him for weapons (see People vBrannon, 16 NY3d 596, 601-602 [2011]; People v De Bour, 40 NY2d at 223).Such a frisk of defendant's person would have been justified only if the police had reason tosuspect that he had been involved in some criminal activity and was armed (see id.). Sucha suspicion cannot be based upon "equivocal or 'innocuous behavior' that is susceptible of aninnocent as well as a culpable interpretation" (People v Brannon, 16 NY3d at 602,quoting People v Carrasquillo, 54 NY2d 248, 252 [1981]; People v Solano, 46 AD3d 1223,1224 [2007], lv denied 10 NY3d 817 [2008]).
Here, police officials testified that they had received reliable information that anAfrican-American male in his early to mid-thirties with short hair was selling drugs from anapartment in the building located at 246 Lark Street. Later, officer Kevin Meehan of the City ofAlbany Police Department observed defendant—an African-American male who fit thisgeneral description—enter the building and, as previously noted, exit the premises 30minutes later. Meehan testified that he followed defendant for approximately two blocks andobserved him turn his shoulders and look back towards Meehan and his partner as they sat in amarked police car. When Meehan exited the police vehicle and approached defendant, he notedthat defendant's pants zipper was down, and he saw him turn away and then adjust his pants leg.These movements, and the fact that defendant appeared to Meehan to be agitated, promptedMeehan to believe that defendant might be carrying a weapon. Meehan ordered defendant to turnaround and keep his hands in plain view. He then asked defendant his name, and when defendantdenied coming from the Lark Street apartment building, Meehan conducted a frisk of defendant'souter clothing to determine if he was armed with a weapon. At this point in their encounter,Meehan had not observed defendant commit a crime nor, in our view, did he have a reasonablesuspicion to believe that defendant was involved in any criminal activity (compare People v Belle, 74 AD3d1477, 1479 [2010], lv denied 15 NY3d 918 [2010]). While defendant fit thedescription given to the police of the individual believed to be selling drugs from the apartmentbuilding, the description was general in nature and undoubtedly could fit any number ofindividuals in this area (compare People v Washington, 182 AD2d 520, 520-521 [1992],lv denied 80 NY2d 840 [1992]). Moreover, as Supreme Court found, defendant'sstatement to the police denying that he came from the building at 246 Lark Street, coupled withhis appearance and movements upon exiting the building, may have authorized the police to stopdefendant and inquire, but did not give them reason to suspect that defendant had committed acrime or was armed with a weapon (compare People v Clinkscales, 83 AD3d 1109, 1109-1110 [2011],lv denied 17 NY3d 815 [2011]; People v Williams, 67 AD3d 1050, 1052 [2009], lv denied13 NY3d 942 [2010]).[FN*] As a result, defendant's motion to suppress was properly granted.
Mercure, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed.
Footnote *: As for the People's argumentthat defendant could have been arrested for trespassing, Meehan testified that at the timedefendant was stopped, he did not know whether defendant was authorized to be in any of theapartments located in the building at 246 Lark Street.