| People v Kennebrew |
| 2013 NY Slip Op 03854 [106 AD3d 1107] |
| May 29, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Charles Kennebrew, Respondent. |
—[*1] Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Queens County(Lebowitz, J.), dated June 13, 2012, which granted the defendant's motion to suppressphysical evidence and a statement made by the defendant to law enforcement officials.
Ordered that the order is affirmed.
Three police officers were driving through an area in which there had been numerouscomplaints of drug activity when they saw the defendant standing on the street holdingtwo or three cigarettes in his hand, and "thought he was, possibly, might have beenselling loose cigarettes." The officers executed a U-turn and, as they approached, thedefendant stepped into the street as if to cross. The officers stopped and called to thedefendant, who stepped back onto the sidewalk and began to walk away in anotherdirection. The officers exited the car and again called to the defendant, who stopped.
One of the officers asked the defendant for his name, to produce identification, andto state what he was doing in the area, and the defendant complied. The defendant deniedselling cigarettes, stating that he had just bought them from a store on the corner. Theofficer noticed that the defendant was wearing black and red beads, and had a teardroptattoo below his eye, indicating membership in the Bloods gang, and asked the defendantif he was a member of a gang. The defendant admitted that he was a member of theBloods gang. However, when asked if he was carrying a weapon, the defendant refusedto answer. Although the defendant made no threatening moves, the officer, who observeda bulge in the defendant's waistband under the defendant's untucked shirt and blackbubble down vest, placed the defendant against a wall and conducted a pat-down search,and recovered a handgun from the defendant's waistband. The defendant stated "I amgoing to be in a lot of trouble for this."
After a suppression hearing, the Supreme Court granted the defendant's motion tosuppress the physical evidence and his statement, finding that the police officer lackedreasonable suspicion to stop and frisk the defendant. The People appeal.[*2]
In People v De Bour (40 NY2d 210[1976]) the Court of Appeals provided a "graduated four-level test for evaluating streetencounters initiated by the police" (People v Moore, 6 NY3d 496, 498 [2006]). Under this test,"level one permits a police officer to request information from an individual and merelyrequires that the request be supported by an objective, credible reason, not necessarilyindicative of criminality; level two, the common-law right of inquiry, permits asomewhat greater intrusion and requires a founded suspicion that criminal activity isafoot; level three authorizes an officer to forcibly stop and detain an individual, andrequires a reasonable suspicion that the particular individual was involved in a felony ormisdemeanor; level four, arrest, requires probable cause to believe that the person to bearrested has committed a crime" (id. at 498-499, citing People v De Bour,40 NY2d at 223 and People v Hollman, 79 NY2d 181, 184-185 [1992]; see People v Garcia, 20 NY3d317, 322 [2012]; People vBrannon, 16 NY3d 596, 601 [2011]). The level one request for information mayinclude " 'basic, nonthreatening questions regarding, for instance, identity, address ordestination' " (People v Garcia, 20 NY3d at 322, quoting People vHollman, 79 NY2d at 185). However, " '[o]nce the officer asks more pointedquestions that would lead the person approached reasonably to believe that he or she issuspected of some wrongdoing . . . the officer is no longer merely seekinginformation' " (People v Garcia, 20 NY3d at 322, quoting People vHollman, 79 NY2d at 185) and the encounter has become a level-two common-lawinquiry, which must be supported by " ' "a founded suspicion that criminal activity isafoot" ' " (People v Garcia, 20 NY3d at 322, quoting People v Hollman,79 NY2d at 185, quoting People v De Bour, 40 NY2d at 223). "[A] police officerwho asks a private citizen if he or she is in possession of a weapon must have foundedsuspicion that criminality is afoot" (People v Garcia, 20 NY3d at 324).
"[T]o elevate the right of inquiry to the right to forcibly stop and detain, the policemust obtain additional information or make additional observations of suspiciousconduct sufficient to provide reasonable suspicion of criminal behavior" (People vMoore, 6 NY3d at 500-501). " '[I]nnocuous behavior alone will not generate afounded or reasonable suspicion that a crime is at hand' " (id. at 501, quotingPeople v De Bour, 40 NY2d at 216). Thus, "in order to justify a frisk of asuspect's outer clothing, a police officer must have ' "knowledge of some fact orcircumstance that supports a reasonable suspicion that the suspect is armed or poses athreat to safety" ' " (People vDavenport, 92 AD3d 689, 690 [2012], quoting People v Caicedo, 69 AD3d954, 954 [2010], quoting People v Batista, 88 NY2d 650, 654 [1996]; see People v Shuler, 98 AD3d695, 696 [2012]; Matter ofJaquan M., 97 AD3d 403 [2012]).
Even assuming that the police were justified in conducting a level-two common-lawinquiry, they lacked the reasonable suspicion necessary to support a level-three encounterconsisting of a pat-down or "stop-and-frisk" search (see People v Batista, 88NY2d at 654; People v Shuler, 98 AD3d at 696). An unidentifiable bulge whichis "readily susceptible of an innocent as well as a guilty explanation" is not sufficient tojustify a pat-down search (People v Stevenson, 7 AD3d 820, 820 [2004]). Moreover,because "[t]he defendant had the right to refuse to answer the [officer's] questions,. . . the fact that he did not answer [whether he had a weapon] did notjustify a further intrusion" (id. at 821).
Accordingly, the defendant's motion to suppress the gun and his statement wasproperly granted. Dillon, J.P., Lott, Austin and Hinds-Radix, JJ., concur.