| People v Martin |
| 2011 NY Slip Op 07123 [88 AD3d 473] |
| October 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Danny Martin, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 9, 2009,as amended April 29, 2009, convicting defendant, upon his plea of guilty, of criminal possessionof a controlled substance in the fourth degree, and sentencing him, as a second felony drugoffender, to a term of 3½ years, affirmed.
At the conclusion of the hearing, the court determined that the police officer's initialapproach to defendant was proper and that there was probable cause for the arrest, and denieddefendant's suppression motion. Defendant then entered into a guilty plea, which included awaiver of the right to appeal. Defendant's waiver of his right to appeal was invalid because thecourt conflated the appeal waiver with the rights automatically waived by the guilty plea.Nonetheless, the court properly denied defendant's suppression motion.
We agree with the hearing court that the officer's actions were justified at the inception andthat the ensuing events justified the extent of the intrusion. Initially, the police officer's attentionwas drawn to defendant when the officer observed a suspicious interaction between defendantand another man; the officer saw defendant's left hand and the other man's right hand "touchingone another" for between ten and thirty seconds on more than one occasion, leading the officerbased on his training and experience, to believe that a "drug transaction" was "taking place."Contrary to the dissent's allegations, defendant's interactions and conduct were sufficient toprovide the officer with a founded suspicion that criminality was afoot to justify a common-lawright to inquire (cf. People vBonilla, 81 AD3d 555 [2011]). The suspicious interaction took place in a drug-pronelocation and was observed by an experienced officer who was trained in the investigation anddetection of narcotics.
Moreover, by the time the officer was within 9 to 10 feet of defendant and the other man, theofficer observed a plastic bag containing a white substance "peeking out" from defendant's closedright fist. Based on his training and experience, he believed the white substance in the bag to be acontrolled substance. Under the circumstances, the officer was justified in grabbing defendant'swrist and forcing open his hand, which revealed the plastic bag with the powder substance.Contrary to the dissent's position, the evidence supports the conclusion that the officer had asufficient opportunity to observe and recognize the object in [*2]defendant's hand, and there is no basis for disturbing the court'scredibility determinations. Accordingly, the officer had probable cause to arrest defendant fordrug possession (see People v McRay, 51 NY2d 594 [1980]). Concur—Mazzarelli,J.P., Renwick, DeGrasse and Richter, JJ.
Freedman, J., dissents in a memorandum as follows: I agree that defendant's waiver of hisright to appeal was invalid for the reasons stated by the majority, but I would have granted thesuppression motion because I do not believe the seizure that occurred was supported by either areasonable suspicion of criminality, or probable cause for an arrest.
The facts, viewed in the light most favorable to the prosecution, are that two plainclothesofficers in an unmarked car were driving northbound along 7th Avenue at about 8:50 p.m. inSeptember 2009 when they saw two men walking side by side on 7th Avenue near the corner of144th Street. The arresting officer, Detective Barnes of the Manhattan Gang Unit, havingpatrolled the area and having made at least two arrests in the area, stated that this was a highcrime area. No one else was on the street at that time. The officer testified that the two men'shands touched each other several times, defendant's left hand touching his companion's righthand, which made the officer suspect a possible drug transaction. He did not see any exchangebetween the men. The officer got out of the car and walked up to the men. He testified that aclosed bank provided light. When he got within 9 or 10 feet, he claims that he saw defendant'sright hand (not the hand that had touched his companion's hand) clenched into a fist. Either atthat point or when he got closer to the men, Detective Barnes claims he saw a white substance"peeking" out of a plastic bag in defendant's closed fist, but he acknowledged that he was notsure that the substance was a drug. He identified himself and then asked the men, who werecooperative, for identification and if they had any weapons. They denied having weapons, butbefore they had a chance to produce the identification, the detective ordered them to put theirhands up, frisked them for weapons although they denied having any, and then grabbeddefendant's wrist and pried open the fingers of defendant's right hand. In the hand was a plasticbag containing chunks of crack cocaine. Defendant was arrested, no money was vouchered anddefendant's companion was not arrested. In denying the motion to suppress, the trial court stated,"This is a very close case quite frankly; however I find that Detective Barnes was a crediblewitness."
People v De Bour (40 NY2d 210 [1976]) and People v Hollman (79 NY2d181 [1992]) established a four-tiered scale justifying police intrusions into private citizens' livesin street encounters. Level one allows police officers to seek information when they have "someobjective credible reason" to request information. A further level two inquiry may be made whenofficers have "a founded suspicion that criminal activity is afoot." Level three involves a forciblestop and detention, which requires "a reasonable suspicion that a particular person hascommitted, is committing or is about to commit a felony or misdemeanor." [*3]Level four is an arrest which requires probable cause to believe thatthe defendant was committing a crime. (De Bour, 40 NY2d at 223; see alsoHollman, 79 NY2d at 184-185.)
Clearly, the stop here, which started out as a level two inquiry, quickly became a level threestop and then turned into a level four arrest as described in People v De Bour. Themajority holds that the testimony about a white substance peeking out of defendant's clenched fistfurnished probable cause for the arrest. However, Detective Barnes' testimony as to exactly whenhe saw this white substance was equivocal. It was either when he was approaching defendant,after nightfall, or when he actually stopped defendant and asked for his identification that thedetective claims he saw the white substance, which justified the stop and frisk, followed by thearrest.
I do not believe that the circumstances described here warranted even a level two inquiry.While two men walking along and open hands touching, may have been sufficient for a level oneinquiry, I do not believe it was reasonable for an officer to suspect that criminal activity wasafoot (see De Bour, 40 NY2d at 223). Thus, under the tests set forth in De Bour,there was insufficient basis to approach the defendant and ask about weapons and foridentification.
However, if indeed, the detective here actually saw a white substance as he approacheddefendant, a level two inquiry might have been justified. In People v Bethea (67 AD3d 502 [2009]), we held that thedefendant's putting an object into his mouth and walking away in response to a police officer'srequest to speak was sufficient for a level two inquiry, but not for further pursuit or seizure. Herethere was less basis for suspecting that criminal activity was afoot. Nevertheless, the encounterimmediately turned into a level three forcible stop and detention requiring reasonable suspicionthat defendant was committing a felony or misdemeanor (De Bour, 40 NY2d at 223). Itthen became a level four arrest, requiring probable cause to believe that defendant wascommitting a crime, when the detective grabbed defendant's wrist and pried open his fingers(id.). The arrest occurred after Detective Barnes patted down the defendant and found noweapons and despite defendant's and his companion's cooperation. Observing a clenched fist,even with a white substance peeking out was not sufficient to warrant an immediate seizure.
The cases cited by the prosecution to illustrate probable cause for a drug arrest, such asPeople v McRay (51 NY2d 594 [1980]), People v Lewis (242 AD2d 307 [1997],lv denied 91 NY2d 876 [1997]), and People v Balas (104 AD2d 1039, 1040[1984], lv denied 64 NY2d 757 [1984]) all involve observation of white glassineenvelopes or vials or of identifiable substances or tin foil packets being passed among people inwhat appear to be drug transactions. People v Ricciardi (149 AD2d 742 [1989]) involvedan automobile stop where white powder in a plastic bag was easily seen. The majority, citingPeople v McRay (51 NY2d 594 [1980]), states that there was probable cause for anarrest. In the instances described in McRay, experienced narcotics officers sawindividuals passing white glassine envelopes to other individuals.
I do not believe walking side by side with hands touching but no exchange occurring and aclenched fist, even with a white substance peeking out, is enough to furnish probable cause for anarrest, and for that reason, would grant the suppression motion.