| People v Holland |
| 2010 NY Slip Op 04922 [74 AD3d 520] |
| June 10, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v DavidHolland, Respondent. |
—[*1] Steven Banks, The Legal Aid Society, New York (Justin Diamant of counsel), forrespondent.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered November 26,2008, which granted defendant's motion to suppress physical evidence and statements, reversed,on the law, the motion denied, and the matter remanded for further proceedings consistentherewith.
On December 30, 2007, a team consisting of Police Officers Porras, Woodard and two otherswas on patrol in the vicinity of a public housing development. The area had been earmarked forpatrol because of reports of drug dealing, robberies and gunshots. At approximately 1:40 a.m.,the team approached a group of four to six individuals in front of 110 East 129th Street.Defendant, who was walking toward the group, changed his direction as the officers approached.Porras called out to defendant and asked him to stop. In response to Porras's questions, defendantstated that he did not live in the housing development. At Porras's request, defendant handedover photo identification. Porras testified that his investigation was complete at that point, sincenothing about defendant's photo identification aroused his suspicion. Porras did not, however,return the identification to defendant. Woodard, who did not hear the conversation betweenPorras and defendant, began asking defendant some of the same questions put to him by Porras.Defendant became irate and punched Porras. A struggle ensued as the officers arrested defendantfor assault and disorderly conduct. Upon the arrest, quantities of crack cocaine and marijuanawere recovered from defendant's person. The motion court granted defendant's motion tosuppress physical evidence, as well as his statements, reasoning that "[e]ven if there was a basisfor initially requesting information from defendant, which there was not, any such justificationwas exhausted after he answered Porr[a]s who was obligated to return the identification andallow him to leave." The court further found that what it described as "continued detention" wasunlawful, and defendant's reaction to it was "proportionate to the circumstances." We disagree.
Once defendant punched Officer Porras, any allegedly unlawful conduct in stopping andquestioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct(see People v Mercado, 229 AD2d 550 [1996]; People v Stone, 197 AD2d 356[1993]). We distinguish People v Felton (78 NY2d 1063 [1991]), where there was noattenuation because [*2]the defendant's action in striking a policeofficer was in the words of the suppression court, "immediate, spontaneous and proportionate tothe officer's attempt to lay hands on him when he refused to stop" (id. at 1064). Here, thepolice officers did not initiate any physical contact with defendant or attempt to do so before hepunched Officer Porras. In this case, defendant's actions were far out of proportion to OfficerWoodard's redundant questions. Hence, we disagree with the dissent's view that defendant's"minimal use of force in the attempt to get away from the officers was a direct consequence ofhis unlawful detention." For purposes of applying Felton, it is of no moment whetherdefendant punched or pushed Officer Porras, because, as stated above, the police officers did notinitiate or attempt to initiate physical contact with defendant. For example, in People v Sampson (68 AD3d1455 [2009]), the court found that a suspect's act in pushing a police officer did not dissipatethe taint of an illegal stop because it was "a spontaneous reaction to [the officer's] attempt totouch him, and a direct consequence of the illegal seizure" (id. at 1458 [emphasisadded]). In light of the foregoing, we need not resolve the issue of the legality of the policeofficers' stopping and questioning defendant (see Mercado, 229 AD2d at 551).Concur—Sweeny, Catterson and DeGrasse, JJ.
Tom, J.P., and Moskowitz, J., dissent in a memorandum by Tom, J.P., as follows: Whileunder the circumstances of this case the police had an objective credible reason to approachdefendant to request information, the officers' subsequent detention of defendant exceeded thescope of the permissible inquiry and violated his Fourth Amendment right to be free from undueinterference with his liberty. Defendant's minimal use of force in the attempt to get away fromthe officers was a direct consequence of his unlawful detention and does not attenuate theillegally initiated police intrusion upon his freedom of movement.
Police Officers Porras and Woodard testified at a combined Mapp/Dunaway/Huntleyhearing before a judicial hearing officer. In the early morning of December 30, 2007, they wereworking with three other uniformed police officers "doing a perimeter check" of the area "[i]nfront of 120 East 129th in the Jackie Robinson Housing Development" in upper Manhattan.Porras first noticed defendant at about 1:40 a.m. as he and the other officers entered the housingdevelopment, an area where he had made a number of prior arrests, mostly related to illegalnarcotics. Defendant was walking toward a group of four to six people gathered in front of thebuilding, as were the officers. Porras testified: "Once he saw us, he changed direction right away.That caught my attention at the time." Porras approached defendant and asked whether he livedin the area or in the development, to which defendant responded, "No." Porras continued, "Hewas agitated at the time of the stop, and I asked him if he had any identification on him which hesaid he did and he presented it to me." Although defendant's identification card was in order,Officer Porras did not return it to him.
Woodard testified he became aware that Porras "was speaking alone with an individual andthe individual was becoming a little loud and irate . . . After I approached, I askedMr. Holland if he had identification, if he lived in the development." Even though defendant hadalready responded to these questions, Porras did not stop Woodard's inquiry. Defendant becamemore irate and louder. Woodard continued, "At this point in time Officer Arslanbeck had c[o]me[*3]over." Porras testified that defendant's "agitation" worriedhim and he "approached" the defendant. Woodard testified that defendant then "took a closed fistand swung at Officer Porras, turned around and tried to run through myself and OfficerArslanbeck . . . At that point in time we grabbed the defendant . . . anda struggle ensued." It took four officers approximately five minutes to subdue defendant, whowas placed under arrest for "[a]ssaulting an officer, disorderly conduct and resisting arrest." Herelated that a bag of crack cocaine and a ziplock bag containing marijuana were recovered fromdefendant's person.
Porras gave a somewhat different version of the events leading up to the scuffle withdefendant: "The defendant started acting very hostile. He started becoming very agitated," andtook "one swing at me striking me in my shoulder, and when I flinched, he ran toward OfficerWoodard. At that point, I went ahead and grabbed the defendant by the waist." During theresulting struggle, "he struck me again in the right forehead and underneath the right eye causingsome swelling and small laceration." After three or four minutes, the officers were able to placedefendant in handcuffs.
Defendant was charged with assault in the second degree, criminal possession of a controlledsubstance in the fifth degree and unlawful possession of marijuana. He moved to suppressstatements and physical evidence as a result of the illegal stop and detention by the police.
Supreme Court granted defendant's motion to suppress testimony concerning any statementsdefendant may have given, and all physical evidence recovered, on the ground that the officerswho confronted defendant lacked a reason to approach him, and in any event, once defendantanswered the questions put to him by Officer Porras and provided identification, "Porr[a]s'investigation was complete, since he found nothing about the identification that aroused hissuspicion. Nevertheless, he did not return the identification, in this way preventing defendantfrom leaving . . . Porr[a]s then assisted Woodard and P.O. Robin in blockingdefendant's egress . . . The continued detention was unlawful and the reaction ofdefendant proportionate to the circumstances. It does not attenuate the unlawful detention andrender the contraband admissible."
On appeal, the People assert error in Supreme Court's finding that the police lacked a reasonto approach defendant, arguing that defendant's "suspicious conduct within a crime-plagued,public housing area, late at night, only elevated the officers' predicate for inquiry." They alsotake issue with the court's portrayal of the officer's conduct as an "unlawful detention" ofdefendant, contending that Porras "was justified in his limited, non-accusatory questioning of thedefendant," and assert that "Officer Woodard, in a very reasonable response to defendant'sgrowing agitation, joined Officer Porras and unwittingly repeated Officer Porras' questions."Finally, the People dispute the court's finding that defendant's attempt to get away from thepolice officers was reasonable. In any event, they argue, "Defendant's striking Officer Porras wasa completely independent act, which provided its own probable cause to arrest and attenuated thetaint of any initial illegality from the contact between defendant and the police" (citingPeople v Townes, 41 NY2d 97 [1976]).
Deciding whether a search and seizure is reasonable under the Fourth Amendment requiresthat a court "consider whether or not the action of the police was justified at its inception andwhether or not it was reasonably related in scope to the circumstances which rendered itsinitiation permissible" (People v Cantor, 36 NY2d 106, 111 [1975]). While defendantdoes not concede the legitimacy of Porras's approach, the police are "given wide latitude toapproach [*4]individuals and request information" (People vDe Bour, 40 NY2d 210, 218 [1976]), which is construed as a "minimal intrusion" onindividual privacy and security requiring only "some objective credible reason for thatinterference not necessarily indicative of criminality" (id. at 223). Defendant's presence"after midnight in an area known for its high incidence of drug activity" and his change ofdirection "to avoid walking past the uniformed officers" warranted Porras's approach to inquireabout defendant's identity (id. at 220). Moreover, it has been observed that the right ofthe police to approach an individual to request information exists even absent any concreteindication of criminality (People v Gray, 90 AD2d 405, 407 [1982]).
Analysis turns to whether the subsequent action of the police was, in the CantorCourt's words, "reasonably related in scope to the circumstances which rendered its initiationpermissible" (36 NY2d at 111), i.e., to Porras's request for information as a result of defendant'sabrupt change of direction. As Supreme Court observed, upon receiving defendant'sidentification and finding nothing suspicious about it, the objective of Porras's inquiry wasfulfilled and his investigation at an end. As this Court noted in People v Barreras (253AD2d 369, 373 [1998]), once a defendant's papers are found to be in order, the initialjustification for a stop is exhausted, and the police are obligated to permit the defendant toresume his journey. The salient characteristic of a request for information is that an individualwho is approached by police must always be free to simply walk away (see People v Flynn, 15 AD3d 177,178 [2005], lv denied 4 NY3d 853 [2005]).
Whether defendant's continued detention was proper depends on whether the circumstancesafforded Porras and his fellow officers the minimum basis for a lawful detention—"afounded suspicion that criminal activity is afoot" (Cantor, 36 NY2d at 114)—so asto elevate the permissible intrusion with defendant's liberty beyond the minimally intrusiverequest for information (see People v Leary, 255 AD2d 527, 528 [1998]) to the nextlevel of interference—the common-law right to inquire—which "permits asomewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extentnecessary to gain explanatory information, but short of a forcible seizure" (De Bour, 40NY2d at 223). The People, however, do not contend that the officers possessed the necessarybasis to elevate their inquiry to this level, which requires a founded suspicion that criminalactivity is afoot. Rather, they avoid the question of detention by attempting to minimize the levelof intrusion upon defendant's liberty and justify the seizure of evidence on an independentground.
The record indicates that the officers' confrontation with defendant progressed beyond asimple request for information. Although defendant had finished answering the questions put tohim by Porras, who determined that defendant's New York State identification card was in order,the officer nonetheless retained the card. The following exchange took place during thetestimony of Porras at the suppression hearing:
"the court: Now, with that would that not necessarily complete your investigation at thatpoint, yes or no?
"the witness: No.
"the court: No. What else did you have to do?
"the witness: At that point Officer Woodard wanted to ask him a few questions.[*5]
"the court: What did he ask him?
"the witness: If he lived in the area as well.
"the court: Well, he already answered that. What else did he ask?
"the witness: I don't remember anything else he asked."
On his cross-examination, Woodard stated that when Porras began speaking to defendant, heand Officers Arslanbeck and Robin were some 20 to 25 feet away. Woodard confirmed thatwhen he asked defendant if he lived in the development and requested his identification, Porrasdid not communicate that he had previously asked the same question and that he was already inpossession of defendant's New York State identification card. Woodard stated, "Mr. Holland wasbeing loud, boisterous . . . It appeared that I had agitated him." Within 10 or 15seconds of Woodard's follow-up request for identification, Arslanbeck arrived. Defendant wasnow confronted by at least three police officers, with a three-foot-high fence directly behind him,and was being subjected to repetitive questioning, while Porras continued to hold hisidentification card. It is reasonable to conclude, from these circumstances, that defendant wasbeing subjected to harassment and intimidation (cf. De Bour, 40 NY2d at 220). In anyevent, the circumstances of the encounter are wholly inconsistent with a belief on defendant'spart that he could reasonably disregard the police and go about his business (see Florida vBostick, 501 US 429, 434 [1991]). "An individual to whom a police officer addresses aquestion has a constitutional right not to respond. He may remain silent or walk or run away"(People v Howard, 50 NY2d 583, 586 [1980], cert denied 449 US 1023 [1980]).
Commendably, the People do not argue that defendant's agitation provided a foundedsuspicion of criminality, which is a position that the courts have rejected as devoid of merit(see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995][defendant's nervousness and minor discrepancies between his and his passenger's answersregarding their trip did not support reasonable suspicion of criminality]; People vMilaski, 62 NY2d 147 [1984]). Nor do they suggest that defendant presented any threat tothe personal safety of the police. Rather, the People contend that an entirely separate justificationfor defendant's arrest was provided by his aggressive behavior toward Porras after Woodardquestioned him and Arslanbeck arrived on the scene, which was described by Woodard as astrike with a "closed fist" landing "in the face area," and by Porras, variously, as a "punch" and a"push" to the shoulder. The officers' testimony was inconsistent with the information theyrecorded in their memo books, which reflect defendant's initial action as a "push."
The documentary evidence clearly showed that defendant was first detained/restrainedbefore he tried to break away and that he pushed Porras, but had not thrown a punch at any timebefore he was detained. Woodard was impeached with his memo book, in which he entered,"Perp did push two AO's upon detainment," indicating himself and Porras. The entries by Porrasdescribed the events surrounding the officers' perimeter check in more detail: "Multiple stoppedincluding Holland, David DOB [xx]/[xx]/84 for poss. drug sales—perp did push (2) A/O's;upon detainment perp did punch A/O w/ closed fist, perp was resisting being put in handcuffs[*6]approx 5 min."
On cross-examination, Porras stated that at the time defendant became aggressive, "I had hisidentification still." When counsel inquired about the circumstances resulting in defendant'sarrest, Porras responded, "Yes—well he pushed me. Pushed the officer." Asked if theywere pushed because defendant was attempting to leave, Porras responded, "He was tryingto—Yeah, he was trying to go." When the court inquired, "At what point did he pushyou?" the witness stated, "After he spoke to Officer Woodard."
Having failed to contest the issue of unlawful detention, the People seek to use the limitedforce employed by defendant in his attempt to get away from the police as an independent basisfor his arrest, thereby attenuating the search and seizure of the contraband found on his personfrom the unlawful police conduct. They argue that "defendant's striking Officer Porras was notprovoked by Woodard's repetitive questions. It was an act of aggression that went far beyond theconversation the officers were attempting to have with defendant." The People rely on Peoplev Townes, in which a suspect subjected to the unconstitutional seizure of his person pulled agun and attempted to fire it, even after the officers had identified themselves. Under thosecircumstances, the Court of Appeals held that the defendant's "act was unjustified and criminal innature (see Penal Law, § 35.27) and unrelated to the initial albeit unlawful action on thepart of the police" (41 NY2d at 102).
Relying on People v Felton (78 NY2d 1063 [1991]), defendant counters that hisattempt to get away from the officers does not serve to attenuate the seizure from the unlawfulpolice conduct "because it was an immediate, spontaneous and proportionate reaction to theunjustified detention." He notes that the testimony of Porras and Woodard, as well as thedocumentary evidence, confirms that he was prevented from departing, thereby exceeding thescope of a police request for information, and requiring suppression of the evidence obtained.
Despite some transparent attempts to elaborate upon the facts, the record is clear andsupports the hearing court's determination that defendant was prevented from leaving the scene,and that his reaction was a proportionate response to the unlawful detention. Here, as Woodardquestioned defendant, other officers gathered around defendant, who was backed up against afence. There was no evidence offered at the hearing to show that the officers had kept a pathopen to allow him to leave at any time he wished. The memo book entries are acontemporaneous record of the officers' activities, maintained as part of their official duties, andconstitute the most reliable account of their encounter with defendant. In the seven months thatintervened between arrest and hearing, the officers' recollection of the incident, particularly thesequence of events, had obviously become impaired because Woodard's testimony wasinconsistent with that given by Porras, and Porras could not seem to recall whether he was firstpunched or pushed by defendant, although he was certain that defendant was trying to get away.The arresting officers were presumably cognizant of the need to justify their detention ofdefendant in order to preserve the physical evidence against him. What is consistently describedin the documentary evidence as a push was subsequently represented at the hearing by Porras asa punch to the shoulder and by Woodard as a punch to the face.[FN*][*7]
As noted in Cantor (36 NY2d at 112), "Streetencounters between the patrolman and the average citizen bring into play the most subtle aspectsof our constitutional guarantees. While the police should be accorded great latitude in dealingwith those situations with which they are confronted it should not be at the expense of our mostcherished and fundamental rights. To tolerate an abuse of the power to seize or arrest would beto abandon the law-abiding citizen to the police officer's whim or caprice—and this wemust not do. Whenever a street encounter amounts to a seizure it must pass constitutionalmuster."
At the time Porras completed his questioning of defendant, the purpose of the initial policeapproach was fulfilled. The continued retention of defendant's identification by Porras and thesecond series of the same questions put to defendant by Woodard elevated the degree ofinterference with defendant's liberty beyond the limited duration and scope permitted by arequest for information (see People vMobley, 48 AD3d 374, 375 [2008] [officers' second approach to request informationwas impermissible after they found nothing suspicious on their first approach]).
It was conceded by both Porras and Woodard that defendant was attempting to get awayfrom the officers. As stated by Woodard, after pushing Porras, defendant "tried to run throughmyself and Officer Arslanbeck," and as stated by Porras, "Yeah, he was trying to go." Thetestimony establishes that after Porras completed his request for information, he wasimmediately joined by Woodard, and 10 to 15 seconds later by Arslanbeck; that the officerspositioned themselves in front of defendant; and that defendant was standing directly in front ofa three-foot fence. It is apparent from the congruous testimony of the two officers and the entriesin their memo books that defendant tried to push Porras out of the way and escape betweenWoodard and Arslanbeck. It is equally apparent that the nature of the officers' confrontation withdefendant had progressed from "basic, nonthreatening questions regarding, for instance, identity,address or destination" that characterize a request for information (Barreras, 253 AD2dat 373) to "harassment or intimidation" stage (De Bour, 40 NY2d at 220) of an improperdetention based on no more than vague suspicion (see Cantor, 36 NY2d at 114).
In view of the officers' concession that defendant was trying to get away from them, thedocumentary evidence and Porras's eventual admission at the hearing that defendant pushed him,the limited physical force used against Porras by defendant was an immediate response to hisunjustified detention. It does not constitute an independent act sufficiently attenuated from theunlawful detention so as to dissipate the illegal taint associated with it (cf. Townes, 41NY2d at 101-102), but was an immediate and direct consequence of that unlawful detention.There is thus no basis upon which to find attenuation and admit the evidence. As this Courtnoted in People v Packer (49 AD3d184, 186 [2008], affd 10 NY3d 915 [2008]), "While the effect of illegally initiatedpolice intrusion may potentially become attenuated, as a practical matter there is rarelyopportunity for the attenuation of primary official illegality in the context of brief, rapidlyunfolding street or roadside encounters predicated on less than probable cause . . .[O]nce a wrongful [*8]police-initiated intrusion is established,suppression of closely after-acquired evidence appears to follow ineluctably."
The attempt to cite force against a police officer as an independent basis for arrest, on thetheory that any such use of force is unjustified under Penal Law § 35.27, has beenrejected. Where the physical response is "immediate, spontaneous and proportionate" to theunlawful police conduct, the unlawful detention is not attenuated (Felton, 78 NY2d at1065). Whether defendant might be able to claim that he was justified in pushing past theofficers or whether such defense is barred by section 35.27 is not before us on appeal, nor is itmaterial. As the Court of Appeals has stated, "although the statute might preclude a justificationdefense to a charge of assault, it could not serve to transform the illegal arrest of defendant into alawful one" (id.).
Finally, although the subsequent recovery of contraband from defendant established thatPorras was correct in his hunch that defendant was in possession of illegal drugs, the propriety ofa search is determined at its inception, not by its proceeds (see Wong Sun v UnitedStates, 371 US 471, 484 [1963]; People v Sobotker, 43 NY2d 559, 565 [1978]). Thatillegal drugs were recovered from defendant is merely fortuitous.
If the tactics employed by the police against defendant are countenanced, any person mightbe approached, detained, intimidated, harassed, even provoked into a display of aggression andthereupon arrested, effectively eviscerating Fourth Amendment protections and "abandon[ing]the law-abiding citizen to the police officer's whim or caprice" (Cantor, 36 NY2d at112). The Fourth Amendment serves to strike a balance between police power and individualfreedom; it should not be dismissed as a hindrance to prosecution, to be dispensed with by resortto facile reasoning in the interest of sustaining a conviction.
Accordingly, the order should be affirmed.
Footnote *: The People do not attempt tojustify defendant's arrest on the basis of any injury sustained by an officer during the struggle toplace defendant in handcuffs.