| People v Johnson |
| 2013 NY Slip Op 05723 [109 AD3d 449] |
| August 27, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jeffrey Johnson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Harold Adler, J., at suppression hearing;Seth Marvin, J., at nonjury trial and sentencing), rendered January 21, 2010, convictingdefendant of attempted criminal possession of a weapon in the fourth degree, andattempted possession of ammunition, and sentencing him to an unconditional discharge,reversed, on the law, defendant's suppression motion granted, and the accusatoryinstrument dismissed.
In a New York City Housing Authority (NYCHA) building, which the testifyingofficer characterized as a "drug-prone" location, the officer observed defendantdescending the stairs to the lobby. Upon seeing the police, defendant "froze," "jerkedback," and appeared "as if he was going to go back up the stairs," although he neverretreated up the stairs.[FN*]The officer asked defendant to come downstairs, and defendant complied. The officerinquired whether defendant lived in the building, and defendant replied in theaffirmative, whereupon the officer asked defendant to produce identification. Defendantimmediately clarified that he was visiting his girlfriend, who lived in the building, andinformed the officer that his identification was located in his pocket. As defendantmoved his hands to retrieve it, the officer's partner grabbed defendant's left arm andpulled his hand behind his back, revealing a handgun inside defendant's coat pocket. Theofficer seized the gun and placed defendant under arrest.
When the prosecutor asked the officer why he had engaged defendant inconversation, the officer replied, "It is a NYCHA building and we're allowed to askanybody inside the building—" As the court sustained an objection, the officerinterjected, "It is a prone drug [sic] location."
A request for information is authorized where there is an "objective, credible reason,not necessarily indicative of criminality," to initiate the level one encounter (see People v Moore, 6 NY3d496, 498 [2006]). The circumstances herein did not provide an objective crediblereason for a level one request for information.[*2]
Presence in a high-crime or drug-prone location,without more, does not furnish an objective credible reason for the police to approach anindividual and request information (see People v McIntosh, 96 NY2d 521,526-527 [2001]). As we have observed, "the reputation of a location, however notorious,does not provide a predicate for subversion of the Fourth Amendment" (People vMarine, 142 AD2d 368, 372 [1st Dept 1989]).
Nor does an individual's desire to avoid contact with police—even in ahigh-crime neighborhood—constitute an objective credible reason for making alevel one inquiry (Matter ofMichael F., 84 AD3d 468 [1st Dept 2011]). In Michael F., twouniformed officers patrolling in a "high-crime area," stopped their car and approached agroup of young men, including the defendant, congregating on a street corner. When theofficers exited the marked car and approached, the defendant "turned around, walkedquickly away and looked back several times over the course of two minutes" (id.at 468). We held: "This did not justify the subsequent level one encounter, in which thetestifying officer followed appellant in his police car, stopped the car, asked appellant tostop and asked him what he was doing. Appellant's conduct was ambiguous, and, in thecircumstances presented, was no more than an exercise of his 'right to be let alone' inresponse to the initial approach of the other officers, rather than flight" (id.).
The People cite People v Holmes (81 NY2d 1056, 1058 [1993]) for theproposition that "[f]light . . . in conjunction with equivocal circumstances. . . might justify a police request for information." However, even ifdefendant's conduct on the staircase can be equated with flight—which isextremely doubtful, given the testimony that he simply stopped descending the stairsupon viewing the officers—there were no equivocal circumstances (compareHolmes, 81 NY2d at 1057 [defendant with unidentified bulge in right jacket pocketwalks away upon seeing police]). The right of police to patrol inside NYCHA buildingsdoes not eliminate the requirement that each level of intrusion be supported by thecorresponding level of suspicion.
Although subsequent events led to an otherwise lawful stop and frisk, those eventswere the result of the unauthorized encounter. Accordingly, defendant is entitled tosuppression because the police action was impermissible at its inception.Concur—Moskowitz, Freedman and Manzanet-Daniels, JJ.
Andrias, J.P., and Feinman, J., dissent in a memorandum by Andrias, J.P., as follows:Andrias, J.P. (dissenting). Defendant's abrupt, halting, and furtive movements providedthe police with an objective credible reason for asking defendant if he was a resident ofthe New York City Housing Authority (NYCHA) building, and subsequent events led toa lawful stop and frisk. Accordingly, because defendant's suppression motion wascorrectly denied, I respectfully dissent, and would affirm the judgment convictingdefendant of attempted criminal possession of a weapon in the fourth degree andattempted possession of ammunition.
The uniformed police officers entered the building to check on other officersstationed inside. As the officers made their way towards the lobby, they saw defendantdescending the stairs. When defendant saw the officers, he froze, jerked back, began toretreat, then stopped and stood on the stairs. Based on defendant's reaction, and given thedrug-prone nature of the building, the officers "suspected [defendant of] trespassing,"and asked him to come down the [*3]stairs to "make sureif he lived in the building."
Defendant initially told the officers that he lived there. However, when asked foridentification, he began to stutter, and changed his story to say that he was visiting hisgirlfriend. Although defendant stated that he had his identification in his pocket, hebegan moving his hands "all over the place, especially around his chest area," which theofficers interpreted to be threatening and indicative of possession of a weapon. To "takecontrol of the situation" before it could "get out of hand," an officer grabbed defendant'sleft arm and brought it behind defendant's back, which caused defendant's open jacket toopen up further and reveal a silver pistol in the netted interior coat pocket. One officerremoved the pistol from the pocket, and another handcuffed defendant.
The New York Police Department is the lawful custodian of NYCHA apartmentbuildings, and its duties include keeping the buildings free of trespassers (People v Williams, 16 AD3d151 [1st Dept 2005], lv denied 5 NY3d 771 [2005]). When the officersobserved defendant in a drug-prone building and saw him freeze, jerk back and begin toretreat when he saw them, they reasonably suspected him of trespassing and had anobjective credible reason to ask him whether he lived there, which constituted a level onerequest for information (see People v Crawford, 279 AD2d 267, 267 [1st Dept2001] ["Defendant, upon exiting the ground floor apartment, looked at the officer andstarted walking up the staircase, whereupon he abruptly reversed course. The officer,therefore, had an 'objective credible reason' to ask defendant whether he lived there"],lv denied 96 NY2d 799 [2001]; People v Lozado, 90 AD3d 582, 583 [1st Dept 2011]["Police officers conducting a nighttime vertical patrol of a Housing Authority buildingsaw defendant coming up the stairs in a ninth floor stairwell. When defendant saw thepolice, he 'paused' and 'looked around,' displaying 'nervous' behavior. Thesecircumstances provided an officer with an 'objective credible reason' to ask defendantwhere he was heading"], lv denied 18 NY3d 925 [2012]; People v Hendricks, 43 AD3d361, 363 [1st Dept 2007] [where building "had a history of drug activity andtrespassing, and although defendant's activities were not necessarily indicative ofcriminality, the officer was warranted in making an inquiry to determine if defendant waslegitimately in the building"]).
Matter of Michael F.(84 AD3d 468 [1st Dept 2011]), on which the majority relies, involved uniformedofficers approaching a group of young men congregating on a street corner, not inside aNYCHA building. It is not dispositive of the right of the officers in this case, who wereassigned to patrol NYCHA buildings, to make a level one request for information afterthey observed defendant engage in behavior that was inconsistent with that of a residentor guest when he saw them in the lobby. Nor is there any basis upon which to disturb thecourt's credibility determinations, which are supported by the record (see People vTinort, 272 AD2d 206 [1st Dept 2000], lv denied 95 NY2d 872 [2000]).
When defendant said that he lived in the building, the request to see his identificationwas reasonably tailored to address the officer's suspicion that defendant was trespassing.When defendant changed his story, stuttered, and began moving his hands "all over theplace, especially around his chest area," although he had said his wallet was in hispocket, the officers reasonably interpreted defendant's actions to be indicative ofpossession of a weapon, and reasonably suspected that they were in danger of physicalinjury. This provided an objective basis for the frisk that resulted in the recovery of theloaded pistol concealed in defendant's interior jacket pocket (see People v West, 71 AD3d435, 436 [1st Dept 2010] ["defendant's presence in the lobby of a public housingapartment building known as a drug-prone location," the officer's [*4]observations of defendant's actions upon seeing the officer,defendant's responses to the arresting officer's reasonable inquiry as to defendant's reasonto be there, and the "movement of defendant's hands to his bulging pockets" all justifiedthe officer's decision to frisk him], lv denied 15 NY3d 758 [2010]; People vRobinson, 278 AD2d 808, 809 [4th Dept 2000] ["when defendant was asked toproduce identification, his hand went first to his jacket pocket before he retrieved hiswallet from the back pocket of his pants," which "provided the officers with a foundedsuspicion that criminal activity was afoot" and "established a reasonable suspicion thatdefendant posed a threat to their safety" (internal quotation marks omitted)], lv denied96 NY2d 787 [2001]).
Footnote *: The arrest paperworkomitted any mention of defendant attempting to go back upstairs. On cross, the officerexplained that while defendant "attempted" to walk back up the stairs, he had neveractually walked back up the stairs.