| Matter of Jaquan M. |
| 2012 NY Slip Op 05334 [97 AD3d 403] |
| July 3, 2012 |
| Appellate Division, First Department |
| In the Matter of Jaquan M., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), forpresentment agency.
Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on orabout August 10, 2010, which adjudicated appellant a juvenile delinquent upon his admissionthat he committed an act that, if committed by an adult, would constitute the crime of criminalpossession of a weapon in the second degree, and placed him on probation for a period of 15months, reversed, on the law, without costs, the motion to suppress granted, the order ofdisposition vacated, and the petition dismissed.
Appellant, who was 14 years old at the time of the incident, was observed by the police atapproximately 9:35 p.m. in a drug-prone location, wearing a backpack. When the police firstspotted him, they were in a car and he was walking slowly down a sidewalk. Appellant thenpassed between two parked cars, peering up and down the street, and then passed back betweenthe cars and looked up and down the sidewalk. Appellant stepped back onto the sidewalk, lookedaround and began pacing in a circle very slowly. He took out his cell phone and used it for about30 seconds, put it back in his pocket, and then went back between the cars. He repeated thepacing and looking a second time. Appellant then took off his backpack and placed it on theground between the cars. He kneeled down and removed a white object very slowly and gentlyfrom his waistband, placing the object in an outer pocket on the side of the backpack. He usedone hand to grip the object and the other to hold the waistband, making it appear to the observingofficers that he did not want the object to get caught in his pants and that he was trying to removethe object as quickly, but as carefully, as possible. Appellant placed one hand on the pocket ofthe backpack and used the other hand to place the object inside the pocket. He zipped up thepocket, put the backpack on his shoulder, and crossed the street. The police thought the object"could" have been a firearm because of the way appellant was handling it and because it was inhis waistband, the most common location for carrying a gun. However, by the officers' ownadmissions, nothing about the appearance of the object which appellant placed in the backpacksupported that suspicion.
One of the officers got out of the car and walked side by side with appellant. The officer sawthat appellant's backpack seemed to be bottom-heavy. The officer identified himself and toldappellant to walk with him across the street. Appellant replied, "[W]hat do you want from [*2]me? I am only fourteen." Another officer went to appellant's right,and the one who originally approached him frisked his waistband and patted down his pockets.When asked where he was coming from, appellant replied that he was coming from his uncle'shouse. When asked where he was going, appellant stated, "I don't know. I am going here," andshowed an address written on his forearm which was located in a housing development in theSouth Bronx, and which the police knew to be a high-crime, drug-prone location. The firstofficer, upon smelling marijuana, asked appellant if he was in possession of any. Appellant said,"[N]o." The officer asked if appellant had ever been in trouble with the law, and he answered,"No. This is the first time." When the officer asked what was in the backpack, appellant replied,"[N]othing."
The officer took the backpack by the upper strap handle at the top and shook it a little. Heasked appellant why the bag was so heavy and what was in it. Appellant again replied that therewas nothing in the backpack. The officer believed that appellant was lying because the bag wasvery heavy and he had previously seen appellant place something inside it. The officer asked forpedigree information, and appellant gave him his date of birth and first name. Appellant statedthat papers bearing his name might be found among school papers and a folder in his backpackand stated, "You could check if it's in any of those papers in my bag." The officer told appellantto take off the backpack and hand it to him. Appellant placed the bag on the ground and theofficer opened up the larger pocket and looked through the paperwork for something withappellant's name on it, but was unsuccessful. He then opened the outer pocket, which containedno paperwork. However, the officer saw the object that he had seen earlier, a white bag. Theofficer placed his hand on the bag, which was hard and heavy. He stated that the object "couldhave been anything," but it felt like a firearm. The officer placed appellant in handcuffs for hissafety, and detained him so that he could determine the contents of the bag. Also, he consideredappellant a flight risk because appellant was nervous, turning his head and leaning his body fromside to side. When the officer opened the bag, he saw a firearm wrapped in bubble wrap, andplaced appellant under arrest. Eleven rounds of ammunition were loaded in the magazine, and$963 in currency was also recovered from appellant's jeans pocket.
The court denied appellant's motion to suppress the gun. The court found that the search wasjustified by appellant's presence at night in a high-crime neighborhood, his furtive actions such aspeering up and down the street and sidewalk, and his removal of a white object from hiswaistband, which, in the officers' experience, is where weapons are frequently concealed. Thecourt noted appellant's inability to tell the officers where he was going without first looking at anaddress written on his arm, and that the officers knew that address to be in a high-crime area. Thecourt further observed that appellant did not have identification, did not give his full name, andsuggested that the officer look for some papers in the backpack. The court also relied on the factthat the officer who searched the backpack testified that it was much heavier than it would havebeen had it contained only papers.
Upon the denial of his suppression motion, appellant admitted that he had committed an actwhich, if committed by an adult, would constitute the crime of criminal possession of a weaponin the second degree. He was adjudicated a juvenile delinquent, and placed on enhancedsupervision probation for a period of 15 months. He was also directed to obey his parents, attendschool regularly, refrain from the use of drugs or alcohol, complete 60 hours of communityservice and have no gang affiliation or further difficulties at home or in the community.
In determining whether the encounter between the police and appellant ultimately justifiedthe seizure of the weapon and appellant's arrest, we rely on the four-tiered methodology [*3]enunciated by the Court of Appeals in People v De Bour(40 NY2d 210 [1976]). In De Bour, the Court delineated the various steps of justifiableintrusion: (1) an approach to request information based on some objective credible reason, notnecessarily indicative of criminality; (2) the common-law right to inquire (short of forcibleseizure), based on a founded suspicion that criminal activity is afoot; (3) a forcible stop anddetention (and limited pat-down/frisk), based on a reasonable suspicion that a particular personhas committed, is committing or is about to commit a crime; and (4) an arrest, based on probablecause to believe the person committed a crime (id. at 223).
Clearly, the police in this case were justified in taking the first two steps. Appellant'sseemingly furtive behavior at night and in a high-crime neighborhood provided a reasonablebasis for the police to form a founded suspicion that appellant was engaged in criminal activity.This gave the officers the right to approach appellant and to make inquiries of him. However, thepresentment agency argues that the police were justified in seizing appellant and then searchinghis bag because, based on the totality of the circumstances, the officers formed a reasonablesuspicion that he was in possession of a weapon. These circumstances included appellant'sapparently furtive movements, his removal of an object from his waistband, the heavyappearance of his backpack after he placed the object inside it, and his denial that there wasanything at all in the backpack.
" '[R]easonable suspicion' [to justify a seizure] has been aptly defined as the quantum ofknowledge sufficient to induce an ordinarily prudent and cautious man under the circumstancesto believe that criminal activity is at hand. The requisite knowledge must be more thansubjective; it should have at least some demonstrable roots. Mere 'hunch' or 'gut reaction' will notdo" (People v Sobotker, 43 NY2d 559, 564 [1978] [internal quotation marks andcitations omitted]). This Court has specifically held that the mere fact that an officer sees aperson holding something near his waistband is not enough to form a reasonable suspicion,"absent any indication of a weapon, such as the visible outline of a gun" (People v Fernandez, 87 AD3d474, 476 [2011]; see People v Manuel, 220 AD2d 263 [1995] [observation of largebulge under the defendant's shirt above the waistband did not provide a reasonable basis tobelieve that the defendant was armed]; People v Barreto, 161 AD2d 305 [1990] [same],lv denied 76 NY2d 852 [1990]; see also People v Crawford, 89 AD3d 422, 423 [2011]["Defendant's flight, when accompanied by nothing more than the presence of an object in hispocket that was unidentifiable even at close range, did not raise a reasonable suspicion that hehad a gun or otherwise was involved in a crime"]).
We reject the dissent's implication that an officer's suspicion that an unidentified object in, asopposed to near, a person's waistband, is a gun, is always reasonable. This Court did not go thatfar in People v Alozo (180 AD2d 584 [1992]), which the dissent cites in support of thatposition. It is noted that in People v Alozo, this Court found that one of the factorsjustifying the frisk of the defendant was that "[t]he officer believed the item to be a gun becauseof its appearance" (id. at 586). Here, by contrast, the officers conceded that nothing aboutthe appearance of the object which appellant pulled from his waistband revealed what it was. It isfurther noted that People v Benjamin (51 NY2d 267 [1980]), which, as the dissent pointsout, was cited by this Court in People v Alozo, found that a frisk was justified becausethe defendant there reached for his waistband and "[i]t would, indeed, be absurd to suggest that apolice officer has to await the glint of steel before he can act to preserve his safety" (51 NY2d at271). Here, there was no evidence that the officers ever felt that their lives were in danger by thepossible [*4]presence of a gun.
Further, absent such an actual indication of a firearm, "other objective indicia of criminality"are necessary before a suspect may be seized (People v Powell, 246 AD2d 366, 370[1998], appeal dismissed 92 NY2d 886 [1998]). Thus, in Powell, suppression ofa gun was granted where the defendant, while walking at a quick pace, adjusted his waistbandand walked with one arm held stiffly against his body, because those "actions were at all timesinnocuous and readily susceptible of an innocent interpretation" (id. at 369). On the otherhand, in People v Rodriguez (71AD3d 436 [2010], lv denied 15 NY3d 756 [2010]), suppression of a weapon wasdenied even though the police only observed that defendant's waistband was weighed down by "aconcealed object" (id. at 437). However, in Rodriguez, the defendant wasstealthily approaching an apartment which was under surveillance as a known drug location andwas a possible target for a home invasion robbery. Further, the defendant was carrying latexgloves, which the police knew had been used in such armed robberies. Similarly, in Matter ofWilberto R. (220 AD2d 332 [1995]), cited by the dissent, the defendant, whose vest had adrooping pocket that this Court held the police justifiably believed contained a gun, closelymatched the description of a person who a radio call had stated was carrying a gun. A similardescription of suspects who had just fired weapons formed a predicate for the search inPeople v Flores (226 AD2d 181 [1996], lv denied 88 NY2d 985 [1996]), alsocited by the dissent. Here, appellant had never been described to the police as being armed.Certainly the dissent would not argue that any person on the street, even in a high-crime area, ispresumed to be carrying a weapon based only on a drooping pocket or backpack.
Reasonable suspicion could not be formed in this case based strictly on the officers'observation of appellant removing an object from his waistband, because they conceded that theobject bore no obvious hallmarks of a weapon. Further, there were no other objective indicia ofcriminality because there were plausible, noncriminal reasons for appellant's behavior. Forexample, the fact that the backpack sagged at the bottom could have been the result of anynumber of things which it would have been legal for appellant to possess. Nor did appellant'sactions in pacing back and forth and peering up and down the street and sidewalk, and thenkneeling down to transfer something into the backpack exclude the reasonable possibility that hewas engaged in innocent behavior. The fact that appellant was in a high-crime area and on hisway to another high-crime area does not, without more, constitute a factor sufficient to createreasonable suspicion (Powell, 246 AD2d at 369-370). Nor do we believe that all of thesefactors, taken together, reasonably lead to the conclusion that appellant was in the process ofcommitting a crime.
Even if the seizure of appellant was legal, we find that appellant's denials that there wasanything inside the bag did not justify an increase in the level of suspicion such that the policeproperly searched his bag. In the cases on which the presentment agency and the dissent rely inarguing that similar lies can create probable cause, People v Febus (11 AD3d 554 [2004], lv dismissed 4 NY3d743 [2004]) and People vScott-Heron (11 AD3d 364 [2004], lv denied 4 NY3d 803 [2005]), the policehad already developed strong reason to believe that the defendants had secreted drugs, and thedefendants' denials were found to have buttressed that belief. Here, as discussed above, the policehad no basis to believe that there was a gun in appellant's backpack, other than their hunch.Appellant's denials were insufficient, on their own, to create probable cause.
Finally, we find that the presentment agency failed to meet its heavy burden of [*5]establishing that appellant voluntarily consented to the search of theentire bag (see People v Barreras, 253 AD2d 369 [1998]). Based on the exchange withthe officers, appellant's reasonable expectation was that he had consented to a limited search ofpapers that might contain identifying information (see People v Gomez, 5 NY3d 416, 419 [2005]). When the officeropened a separate compartment in the backpack which did not contain any papers, the right toproceed further was lost. Concur—Mazzarelli, J.P., Renwick and Freedman, JJ.
Friedman and Catterson, JJ., dissent in a memorandum by Catterson, J., as follows: I mustrespectfully dissent. In my view, the totality of the circumstances justified not only a DeBour level two common-law inquiry, but also provided the police with reasonable suspicionto believe that the appellant was illegally carrying a gun in his backpack justifying a level threestop and frisk.
Relying on People v Fernandez(87 AD3d 474 [1st Dept 2011]), the majority acknowledges that the appellant's "furtivebehavior at night and in a high-crime neighborhood" justified a level two inquiry. However,because the object that the appellant secreted in his backpack "bore no obvious hallmarks of aweapon" and there were no other "indicia of criminality," the majority concludes that there wasno justification for a level three stop and frisk. I disagree. It is not necessary for an officer to seethe "outline of a gun" in order to form a reasonable suspicion that the defendant is armed. Adefendant's "describable conduct" may provide a "reasonable basis for the police officer's beliefthat the defendant [has] a gun in his possession." (People v Marine, 142 AD2d 368,371-372 [1st Dept 1989] [internal quotation marks and citation omitted].)
In any event, Fernandez is inapposite. In Fernandez, the officer saw thedefendant in a high-crime area, crouched behind an SUV, holding his hand "near" his waist, butnever saw the defendant take anything out of his waistband, nor saw what the defendant washolding. We found that the mere fact that an officer sees a person holding something nearhis waistband is not enough to form a reasonable suspicion "absent any indication of a weapon,such as the visible outline of a gun." (87 AD3d at 476.)
By contrast, in this case the officer saw the appellant take a white object large enough to be agun out of his waistband and put it in his backpack. The officer testified that he thoughtthe object could have been a gun not only because it was in his waistband, but alsobecause the appellant handled the object "with care." (See e.g. People v Alozo, 180AD2d 584, 586 [1st Dept 1992], citing People v Benjamin, 51 NY2d 267, 271 [1980].) InPeople v Alozo, we found that the object's "appearance, the manner in whichdefendant held it and the fact that it was inserted in the back waistband of his pants"(180 AD2d at 586 [emphasis added]) provided a reasonable basis for the officer to believe thatthe defendant had a gun. We further observed that " '[i]t is quite apparent to an experiencedpolice officer, and indeed it may almost be considered common knowledge, that a handgun isoften carried in the waistband.' " (Id., quoting People v Benjamin, 51 NY2d at271.) The officer in this case also testified that the backpack appeared to be empty, but saggedfrom a heavy weight at the bottom, heightening his suspicion that the object was a gun. (Seee.g. Matter of Wilberto R., 220 AD2d 332, 332-333[*6] [1stDept 1995] [defendant's vest pocket drooped, "indicating a heavy object that the officer believedcould have been a gun"].)
Moreover, contrary to the majority's finding, in my opinion there were other "indicia ofcriminality." The appellant's efforts to keep the object concealed, his surreptitious conductlooking up and down the street, and his presence alone at night in a drug-prone location wherearmed robberies were increasing, were all factors that aroused the officer's reasonable suspicion.(See e.g. People v Martin, 88 AD3d473 [1st Dept 2011] [the drug-prone location of the transaction contributed to the trainedofficer's suspicion]; People v Flores, 226 AD2d 181 [1st Dept 1996], lv denied88 NY2d 985 [1996] [defendant's effort to conceal a bulge in his waistband escalated theencounter to reasonable suspicion]; People v Alozo, 180 AD2d at 586 ["(t)he officer'ssuspicions were further aroused" when the defendant looked "up and down the block both beforeand after retrieving the object"].)
While it may be true, as the majority finds, that individually these circumstances were"susceptible of an innocent interpretation," here, they have to be viewed as a progression ofactions, with each circumstance increasing the level of the police officer's suspicion. Thus, Iwould find that taken together, they provided the officer with reasonable suspicion that theappellant was illegally carrying a gun in his backpack. In People v Rodriguez (71 AD3d 436 [1st Dept 2010], lvdenied 15 NY3d 756 [2010]), we concluded that although "[e]ach of the[ ] circumstances,when viewed in isolation, might be considered innocuous," when viewed "in totality," theyprovided reasonable suspicion that justified a stop and frisk. (71 AD3d at 436-437 [defendantbehaved "stealthily" in an area known as a "distribution point for drugs and firearms," hiswaistband was "weighed down" by an object that he attempted to conceal, and he was carrying alatex glove].)
Furthermore, the officer testified that he knew that the appellant was lying when herepeatedly said that there was "nothing" in the backpack because he saw him put the object thereand could see the weight of it at the bottom. Thus, in my opinion, because the police already hadreasonable suspicion to believe that the appellant illegally possessed a gun, his prevaricationincreased the officer's level of suspicion to probable cause to believe that there was a weapon inthe backpack, justifying the search. (Seee.g. People v Febus, 11 AD3d 554, 556 [2d Dept 2004], lv dismissed 4 NY3d743 [2004] [because the officer had reasonable suspicion to stop the defendant, the defendant'slie that he had "nothing" in his pocket raised the level of the encounter to probable cause]; People v Scott-Heron, 11 AD3d364 [1st Dept 2004], lv denied 4 NY3d 803 [2005] ["defendant's patently falseresponses to the detective's initial questions clearly raised the level of suspicion to probablecause"].)
In any event, I disagree with the majority that the invitation to search limited the search to themain compartment of the appellant's backpack. As the majority acknowledges, the appellantexplicitly suggested that the officer look inside the backpack for papers that might containidentifying information. When the officer did not find any papers in the main compartment withthe appellant's name on them, he opened the outer pocket. I do not believe that the right toproceed to the outer pocket was "lost" when the officer failed to find papers in the maincompartment. The scope of a search is "generally defined by its expressed object" and the"reasonable" expectation of the person consenting to the search. (People v Gomez, 5 NY3d 416,420 [2005] [internal quotation marks and citation [*7]omitted].)Here, the appellant did not expressly limit the search to the main compartment, nor could he havereasonably expected it to be limited to that area since a school paper with a student's name on itcould be located in any pocket of a student's backpack, not just the main compartment.