| People v Solano |
| 2007 NY Slip Op 10414 [46 AD3d 1223] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rafael Solano,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Mugglin, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered August 31, 2006, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the fourth degree.
In the early afternoon of November 14, 2005, Eric Hesch of the City of Schenectady PoliceDepartment saw David Messmore, who was known to Hesch to be a substance abuser, walkingtowards a corner store on Eastern Avenue in the City of Schenectady, Schenectady County.Hesch pulled his unmarked police car alongside Messmore and spoke with him briefly about theneighborhood. Messmore indicated a nearby section where drug trade was occurring. As theytalked, a car with tinted windows and North Carolina plates drove by, slowed down and honkedits horn. According to Hesch, Messmore "waived [the car] off" after which Messmore turnedaround, got into his car and followed the other car around the corner. Hesch then turned the samecorner and saw both cars pulled over on the right side of the road. Hesch pulled behind the carswhich, after a moment or two, drove away. Hesch then drove a short distance away, turnedaround and found both cars pulled over by the right side of the road on a different block, withMessmore's car parked behind the car with North Carolina plates. Hesch pulled across the road,placing the front of his vehicle in close proximity to the front of the North Carolina car. Althoughhe did not see Messmore in the back seat of the North Carolina car prior to that time, he and hispartner, after quickly approaching, discovered him to be there. They also discovered [*2]defendant in the front passenger seat. Hesch then radioed forbackup reinforcement and one of the backup officers, while conducting a pat-down frisk ofdefendant, ran his fingers under the elastic at the cuff of defendant's sweatpants and two pieces ofcrack cocaine fell out. Defendant was handcuffed and taken to the station where a subsequentsearch revealed nine more bags of crack cocaine in defendant's possession.
Defendant appeals from the judgment convicting him of criminal possession of a controlledsubstance in the fourth degree, and argues only that the police lacked a reasonable suspicion tobelieve that he was involved in criminal activity and that the stop and seizure were thereforeillegal and the drugs should be suppressed. We agree and reverse.
It is well settled that police officers, in order to legally forcibly stop and seize an individual,must have articulable, reasonable suspicion that the individual was involved in criminal activity(see People v De Bour, 40 NY2d 210, 223 [1976]; People v McNair, 36 AD3d 1073, 1074 [2007], lv denied 9NY3d 847 [2007]). A seizure occurs when there is "a significant interruption with an individual'sliberty of movement" (People v De Bour, 40 NY2d at 216; see People v Ocasio,85 NY2d 982, 984 [1995]). In determining whether an individual's actions rise to the level ofreasonable suspicion, police officers are permitted to interpret the behavior in light of theirtraining and experience (see People v Nichols, 277 AD2d 715, 716-717 [2000]; see also People v Williams, 39 AD3d1269, 1270 [2007], lv denied 9 NY3d 871 [2007]), although "innocuous behavioralone will not generate a . . . reasonable suspicion that a crime is at hand"(People v De Bour, 40 NY2d at 216).
Here, it is undisputed that a seizure occurred. Moreover, it is our view that it occurred at themoment that Hesch pulled his vehicle in front of the North Carolina car and approached the car.At that time, Hesch had observed no criminal activity of any kind (compare People vNichols, 277 AD2d at 716-717). Although Hesch testified that the actions of the parties ledhim to believe that "maybe there was some type of criminal activity afoot," the conduct which heobserved is susceptible of innocent interpretation (see People v Bailey, 204 AD2d 751,752-753 [1994]). The record lacks any other basis for the stop of the vehicles under surveillance.
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is reversed,on the law, motion to suppress granted and matter remitted to the County Court of SchenectadyCounty for further proceedings not inconsistent with this Court's decision.