| People v Stephens |
| 2008 NY Slip Op 00613 [47 AD3d 586] |
| January 31, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v KeithStephens, Respondent. |
—[*1] Steven Banks, The Legal Aid Society, New York City (Adrienne Hale of counsel), forrespondent.
Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or aboutOctober 10, 2006, which granted defendant's motion to suppress physical evidence, unanimouslyreversed, on the law, the motion denied, the indictment reinstated and the matter remanded forfurther proceedings.
On the evening of February 28, 2006, the arresting officer, Officer John Hoffman, waspatrolling with two other plainclothes anticrime officers in an unmarked police car. At about10:00 p.m. Officer Hoffman made a very brief observation of defendant and another manwalking four to five feet behind a third man. Defendant was wearing a puffy, waist-length wintercoat, and as defendant walked, his right hand was motionless at the right side of his waistbandarea while his left hand was moving. According to Officer Hoffman, defendant, apparentlynoticing the officers' car, looked at the car and became "startled," looking "straight ahead as if hewas very nervous or he saw like a ghost." While continuing to "look straight ahead" as hewalked, defendant "still ha[d] his hand on his right side." As Officer Hoffman stopped the car,the other officers got out and approached defendant, who fled. Officer Hoffman, who continuedto follow defendant with the car, noticed that defendant ran with his arm clutched on his rightside. After a brief chase, the police apprehended defendant and recovered a gun that defendanthad thrown under a parked car as he was being chased, as well as a quantity of narcotics.
Defendant was charged with criminal possession of a weapon in the second and thirddegrees, and criminal possession of a controlled substance in the third degree. Defendant moved,among other things, to suppress evidence that the police had recovered upon his arrest. AMapp hearing was ordered.
At the hearing, Officer Hoffman, a nine-year veteran of the New York City PoliceDepartment, testified that he was initially alerted by defendant's actions because there had been"robberies in the area with male blacks robbing [people] at gunpoint" and that "it looked veryodd[,] based on [his] experience[,] that two individuals would be so close to another individualwalking in that area." Moreover, according to Officer Hoffman, who had been trained to identify[*2]a person carrying a firearm, people carrying guns walked in anoticeably different manner.[FN*]Thus, Officer Hoffman was further alerted by defendant's actions because defendant was walkingin a manner consistent with the likelihood that he was carrying a firearm. The officer thentestified that he could see "no reason why someone runs . . . with one handswinging, the other hand on his person unless he is holding something."
The hearing court found Officer Hoffman to be "completely credible" and "scrupulouslyhonest." Nonetheless, the court concluded that the defendant's motion to suppress must begranted because his conduct, including the subsequent flight, did not give rise to a reasonablesuspicion that he had committed or was about to commit a crime. The court found that "[b]rokendown in a frame-by-frame analysis, the defendant's behavior [was] innocuous."
The court held that, even assuming the defendant knew that the men approaching him werepolice officers and then fled, that behavior still would not have provided the necessary legalpredicate to chase him, as flight alone was insufficient to justify pursuit. The court then foundthere was nothing remarkable about the defendant walking with another man, behind a third man,at 10:00 p.m. on a city street. The court also found that the defendant's act in walking with onehand held to his waistband area while allowing the other hand to swing freely was not sufficientto justify a stop of the defendant. It also failed to comport with Officer Hoffman's own trainingstandards, as it did not fit with the signs that he had described as part of the police training onhow to identify people carrying concealed weapons. Finally, the court noted that it gave noconsideration to Officer Hoffman's testimony that he had received reports of male blacks robbingpeople at gunpoint near the street that Officer Hoffman spotted defendant.
For the reasons set forth below we disagree with the hearing court's use of a narrowlyfocused frame-by-frame analysis and find that the totality of the circumstances gave the police areasonable suspicion to believe that the defendant had committed or was involved in a crime.
The law is well settled that any inquiry into the propriety of police conduct must weigh thedegree of intrusion entailed against the precipitating and attending circumstances out of whichthe encounter arose (People v Salaman, 71 NY2d 869, 870 [1988]; People v DeBour, 40 NY2d 210, 223 [1976]). Thus, the court must concentrate on whether the conductof the police was reasonable at the time in view of the totality of the circumstances (People vBatista, 88 NY2d 650, 653 [1996]; People v Lomiller, 30 AD3d 276, 277 [2006], lv dismissed7 NY3d 850 [2006]). In determining whether a police officer has reasonable suspicion tojustify his actions, "the emphasis should not be narrowly focused on . . . any. . . single factor, but on an evaluation of the totality of circumstances, which takesinto account the realities of everyday life unfolding before a trained officer" (People vGraham, 211 AD2d 55, 58 [1995], lv denied 86 NY2d 795 [1995] [citation andinternal quotation marks omitted]).[*3]
Officer Hoffman saw defendant at 10:00 p.m., in an areawhere there had been a number of gunpoint robberies. Defendant was following another manwhile clutching his waistband and keeping his right arm tight against his body as he walked.Moreover, the defendant looked startled when he saw the police. Officer Hoffman suspected thatdefendant was carrying a weapon and his suspicion was immediately heightened when defendantand his companion ran away from the police before they could ask any questions. These actionstaken together, justified the officers' pursuit of the defendant, as well as the recovery of the gunand narcotics (People v Pines, 281 AD2d 311 [2001], affd 99 NY2d 525 [2002][where defendant's ensuing flight escalated the encounter and provided reasonable suspicion ofcriminality justifying pursuit]; Matter of Steven McC., 304 AD2d 68 [2003], lvdenied 100 NY2d 511 [2003] [where the appellant saw the police car, quickened his paceand separated himself from his companions to walk over to a building near an alley and discardsomething, and the Court found that these actions gave rise to a founded suspicion, whichripened into reasonable suspicion upon the appellant's flight when the police approached]).Therefore, the weapon defendant discarded in the course of his flight, and the subsequentcontraband found on his person, were lawfully obtained and the motion to suppress wasimproperly granted. Concur—Friedman, J.P., Marlow, Nardelli and Catterson, JJ.
Footnote *: In this regard, Officer Hoffmantestified: "[t]hey would walk heavy on one side. They would actually motion in a nervousreaction, motion their side where there could possibly be a weapon. If they walk up and down acurb they will clutch their weapons. Most criminals don't carry a holster. It is in their pants orwaistband. See their overall body movement to see if they were walking with a possibleweapon."