| People v Sampson |
| 2009 NY Slip Op 09559 [68 AD3d 1455] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v JesseSampson, Respondent. |
—[*1] Eugene P. Grimmick, Troy, for respondent.
Cardona, P.J. Appeal from an order of the County Court of Rensselaer County (Jacon, J.),entered March 20, 2009, which granted defendant's motion to suppress evidence.
On May 21, 2008, Investigator Arthur Hyde of the Rensselaer County District Attorney'sOffice Drug and Gang Task Force received a call from someone at the Rensselaer CountySheriff's Department relaying that the Department had received information indicating thatdefendant was bringing drugs from the New York City area to a specified address on St. VincentStreet in the City of Troy, Rensselaer County. Hyde was asked to proceed to the area of CanalStreet and Spring Avenue and look for a 2006 Saturn. Before he could do so, Hyde wascontacted again and told to disregard the previous message because the Sheriff's Department hadreceived further information indicating that defendant had already arrived in Troy. Hyde thenoffered to drive by the St. Vincent Street address to look for a Dodge Stratus that defendant wasreportedly driving.
When Hyde arrived in the vicinity, he did not observe either vehicle but did notice a taxi inthe driveway. As the taxi drove past him a few minutes later, he observed defendant, with whomhe was familiar, in the passenger seat. He followed the taxi for several blocks, then put on hislights and pulled it over. He asked defendant to exit the taxi and advised him that people at theSheriff's Department wanted to speak to him.[*2]
At that point, Hyde noticed a fist-sized bulge indefendant's sweatshirt pocket. He told defendant that he was going to pat him down. As hereached for defendant with both hands, defendant asked if he was under arrest. When Hyde saidthat he was not, defendant said, "[t]his is bullshit," and he pushed Hyde and ran. Hyde pursuedhim, a struggle ensued during which Hyde pulled off defendant's shirt and sweatshirt, anddefendant pulled Hyde's jacket partially over his head. Defendant got away and continued to fleeuntil another officer arrived with a canine. When defendant was told to get down or the caninewould be released, he dropped to the ground, then threw a baggie into a nearby sewer drain. Thatbaggie, and another that he discarded during his flight, were field tested and determined tocontain crack cocaine. Defendant was placed under arrest and removed to the Rensselaer CountyJail, where he made an incriminating statement.
Defendant was charged with criminal possession of a controlled substance in the seconddegree and resisting arrest. Following a hearing, County Court granted his motion to suppress thedrugs and his statement as the fruits of an illegal search and seizure. The People appeal pursuantto CPL 450.50.
It is well settled, and the People concede, that Hyde's stop of the taxi was an impermissibleseizure unless, at the time he executed the stop, he had "a reasonable suspicion that itsoccupants had been, [were] then, or [were] about to be, engaged in conduct in violation of thelaw" (People v Sobotker, 43 NY2d 559, 563 [1978]; see People v Spencer, 84NY2d 749, 752-753 [1995]). The People's contention that the tip received by the Sheriff'sDepartment and relayed to Hyde provided reasonable suspicion for his stop of the taxi is notpersuasive.
Hyde conceded during his testimony that he did not know the identity of the informant, norcould he even recall which member of the Sheriff's Department relayed the tip to him. While ananonymous tip may justify a request for information (see People v McIntosh, 96 NY2d521, 527 [2001]), it will not support a reasonable suspicion of criminal activity unless it is "'reliable in its assertion of illegality, not just in its tendency to identify a determinate person' "(People v William II, 98 NY2d 93, 99 [2002], quoting Florida v J.L., 529 US266, 272 [2000]). Specifically, the tip must contain "predictive information—such asinformation suggestive of criminal behavior—so that the police can test the reliability ofthe tip" (People v Moore, 6 NY3d 496, 499 [2006]).
In this case, the anonymous tip that was relayed to Hyde identified defendant and indicatedthat he was bringing drugs to Troy from the New York City area, but did not provide any basisfor that knowledge that would indicate that it was reliable. Additionally, it is unclear from therecord whether the informant also identified the 2006 Saturn or the Dodge Stratus, or whetherthe descriptions of those cars came from another source. However, even if that arguably"predictive information" was obtained from the informant, Hyde was unable to verify it since hesaw neither of those vehicles in the vicinity of St. Vincent Street. Indeed, Hyde testified thatdefendant was already in the taxi at the time he first drove past the St. Vincent Street address.Moreover, Hyde did not testify to independently witnessing any other circumstances indicativeof criminal activity prior to his stopping of the taxi a few minutes later. On this record, we agreewith County Court that the anonymous tip did not give rise to a reasonable suspicion of criminalactivity (see People v Heapps, 13 AD3d 107, 108 [2004], lv denied 4 NY3d 799[2005]; People v Letts, 180 AD2d 931, 933 [1992], appeal dismissed 81 NY2d833 [1993]; People v Clark, 133 AD2d 955, 956 [1987]). Absent reasonable suspicion,Hyde's act of stopping the taxi constituted an impermissible seizure of defendant (see Peoplev Sobotker, 43 NY2d at 564-565).[*3]
The People also argue that once Hyde spotted the bulgein defendant's sweatshirt pocket, it was permissible for him to pat defendant down for thepurpose of officer safety. We do not agree. "Where a police encounter is not justified in itsinception, it cannot be validated by a subsequently acquired suspicion" (People v WilliamII, 98 NY2d at 98 [citation omitted]; see People v McIntosh, 96 NY2d at 527). Inany event, "a pocket bulge, unlike a waistband bulge, 'could be caused by any number ofinnocuous objects' " not indicative of criminal activity (People v Holmes, 81 NY2d1056, 1058 [1993], quoting People v De Bour, 40 NY2d 210, 221 [1976]). Here, Hydeconceded that the fist-sized bulge in defendant's pocket could have been "a baseball" or "anynumber of things." Furthermore, Hyde had no indication that defendant was suspected of beingarmed or even that he was generally known to carry a weapon.
Finally, we are not persuaded by the People's argument that defendant's act of pushing Hydedissipated any taint resulting from the seizure, thereby rendering the crack cocaine, as well asdefendant's statement to police, admissible. When determining whether an action taken by adefendant following an impermissible seizure dissipated the taint of the illegality, "[t]he test tobe applied is whether defendant's action . . . was spontaneous and precipitated bythe illegality or whether it was a calculated act not provoked by the unlawful police activity andthus attenuated from it" (People v Wilkerson, 64 NY2d 749, 750 [1984]; see People vBoodle, 47 NY2d 398, 402 [1979], cert denied 444 US 969 [1979]; People vDennis, 31 AD3d 810, 811-812 [2006]). Here, according to Hyde's own testimony,defendant's act of pushing him occurred contemporaneously with Hyde's attempt to perform asearch of defendant's person. Defendant's action in pushing Hyde was a spontaneous reaction toHyde's attempt to touch him, and a direct consequence of the illegal seizure (see People vFelton, 78 NY2d 1063, 1065 [1991]; People v Wilkerson, 64 NY2d at 750-751).
In light of the foregoing, we find that the drugs discarded by defendant during his flight wereproperly suppressed (see People v Sierra, 83 NY2d 928, 930 [1994]; People vMcCullough, 31 AD3d 812, 813-814 [2006], lv denied 7 NY3d 850 [2006]). Absentprobable cause for defendant's arrest, his statement was also properly suppressed (see Peoplev Baptiste, 306 AD2d 562, 566 [2003], lv denied 1 NY3d 594 [2004]).
Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed.