| People v Bethea |
| 2009 NY Slip Op 08153 [67 AD3d 502] |
| November 12, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Bethea, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J., at hearing; Arlene R.Silverman, J., at jury trial and sentence), rendered May 1, 2008, convicting defendant of criminalpossession of a controlled substance in the third degree, and sentencing him, as a second felonydrug offender, to a term of four years, unanimously reversed, on the law, the motion to suppressgranted, and the indictment dismissed.
At the hearing on the motion to suppress, Police Officer Tawee Theantong and SergeantFrank O'Shea testified as follows: On June 20, 2007, they were assigned to the Housing BureauSpecial Operations section and were on anticrime duty in plainclothes in an unmarked vehicle.At about 8:05 p.m., while they were stopped at a red light, Officer Theantong noticed defendantstanding on the corner of 126th Street and Park Avenue, an area that the officer stated wasknown for prostitution and drugs. When the light changed, Theantong kept his eye on defendant,who looked over in the direction of the officers and made eye contact with them. Theantongbelieved that defendant had recognized them as police because he had "abruptly changeddirection." Theantong got out of the vehicle and approached defendant, displayed his badge, andsaid "[p]olice, don't move." Defendant walked away without acknowledging Theantong.Theantong told him to "hold on for a minute, I want to speak with you," and started runningtowards defendant. Before reaching defendant and placing a hand on him, Theantong noticedthat defendant's back was hunched, "and he raised his right hand to his mouth, which indicated tome that he had placed something in his mouth." Theantong told defendant to turn around, andasked him what he had put into his mouth. Defendant replied, "[N]o, nothing. I have atoothache."
Sergeant O'Shea testified that while defendant was standing on the corner, he noticed thatdefendant had a small object in his hand, and that after they made eye contact, defendant turned,closed his hands and started walking away. After Theantong exited the vehicle, O'Shea starteddriving so he could get ahead of defendant. When O'Shea was almost even with defendant, hesaw defendant put whatever he had in his hand into his mouth. The sergeant exited the vehicle,approached defendant and told him to open his mouth. Defendant did so, revealing a clear plasticbag. The sergeant "plucked it out" of defendant's mouth and the bag fell into defendant's [*2]hands. A struggle ensued when defendant attempted to place thebag back into his mouth. Defendant was arrested, and the bag, which was recovered from a tirerim of a vehicle parked on the street, was found to contain narcotics.
Defendant's suppression motion should have been granted. In denying the motion, the courtfound that the officers' initial request to speak to defendant and to stop was proper, and that hisresponse, namely, to walk away and to put something into his mouth so as to conceal it, gavethem the right to continue with a "level 2" inquiry,[FN*]i.e., to ask him what was in his mouth and to direct him to open his mouth. However, evenassuming, without deciding, that the police had an objective credible reason to initiate anencounter with defendant based on their observation of him as he stood on the corner of 126thStreet and Park Avenue at 8:00 p.m. as well as their observations that he made eye contact withthem when they approached in their van and that he was holding a small object in his hand andturned to walk away from the van, defendant's reaction to the police request to stop and talk wasnot "sufficiently incriminating" to raise the police officers' level of suspicion enough to justifypursuit (People v Mitchell, 185 AD2d 163, 165 [1992], appeal dismissed 81NY2d 819 [1993]). As we recognized in Mitchell, "[m]erely failing to cooperate andleaving the scene is not sufficiently indicative of criminality to enhance an objective crediblereason to request information to reasonable suspicion" (id. at 165).
This is not a situation where the police had seen defendant engaging in suspicious activityindicative of illegal drug activity (compare People v King, 200 AD2d 487 [1994], lvdenied 83 NY2d 873 [1994]) or were responding to a report of possible criminal activity inthe area where defendant was spotted (compare People v Becoate, 59 AD3d 345 [2009], lv denied12 NY3d 851 [2009]; People vStevenson, 55 AD3d 486 [2008], lv denied 12 NY3d 788 [2009]). The trialcourt cited Sergeant O'Shea's testimony that he had observed defendant place something into hismouth. However, as defendant was not observed placing an [*3]object into his mouth until after the police began to pursuehim, the fact that he put something into his mouth cannot justify the pursuit.Concur—Tom, J.P., Buckley, Catterson, Freedman and Abdus-Salaam, JJ.
Footnote *: The court cited People v DeBour (40 NY2d 210, 223 [1976]), in which the Court of Appeals announced that "[t]heminimal intrusion of approaching to request information is permissible when there is someobjective credible reason for that interference not necessarily indicative of criminality." The nextdegree, or "level 2" as the trial court termed it, is "the common-law right to inquire, [which] isactivated by a founded suspicion that criminal activity is afoot and permits a somewhat greaterintrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gainexplanatory information, but short of a forcible seizure" (id. at 223).