| People v Ingram |
| 2014 NY Slip Op 01086 [114 AD3d 1290] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Appellant, v Robert L. Ingram, Respondent. |
—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), dated November 30, 2012. The order granted that part of the omnibus motion ofdefendant to suppress physical evidence and his oral statements to the police.
It is hereby ordered that the order so appealed from is affirmed.
Memorandum: The People appeal from an order granting that part of defendant'somnibus motion to suppress physical evidence, i.e., a handgun, and defendant's oralstatements to the police. The People contend that the police had the requisite reasonablesuspicion to justify their pursuit of defendant, and that suppression of the evidence andoral statements thereafter obtained from defendant is not warranted. We reject thatcontention and, inasmuch as Supreme Court's suppression determination is supported bythe record (see People vMartinez, 105 AD3d 1458, 1459 [2013]; see generally People vProchilo, 41 NY2d 759, 761 [1977]), we affirm the order.
The testimony at the suppression hearing established that, on March 25, 2012, ahousing officer of the Buffalo Police Department received a tip from an unnamedarrestee that there were two guns "stashed behind" a house located at 118 MontanaAvenue in the City of Buffalo. The area in which the house was located was known tothe officer and his partner as a high-crime area. At approximately 4:40 p.m. on that date,the two officers drove their patrol vehicle to that house to investigate the tip. Uponturning onto Montana Avenue, the officers saw two men near the curb in front of housenumber 116 or 118, crossing the street toward house number 119. The officer driving thepatrol vehicle recognized one of the men as the victim of a recent shooting, and hestopped the patrol vehicle to speak with him. That man stopped to talk to the officer, buthis companion—defendant—began walking away "swiftly." The secondofficer, curious as to why defendant was "going away so fast," exited the patrol vehicleand asked defendant his name. According to the testimony of the second officer,defendant did not respond, but turned around, "grabbed the right side of his jacket," and"tried to pull something out of it." The second officer yelled at defendant, "don't do it,"but defendant continued to pull at his jacket pocket. The second officer drew his pistoland pointed it at defendant, while continuing to yell, "don't do it." Defendant then beganto run away, although we note that the second officer provided conflicting testimonywhether defendant had begun to run away before he yelled at defendant. The two officerspursued defendant, ultimately apprehending him and recovering a loaded handgun fromhis jacket pocket. Notably, the officers testified that defendant and his companion weredoing nothing illegal when they first saw them, and that they became suspicious onlybecause defendant and his companion were in the vicinity of the house identified in thetip. Furthermore, the first officer testified that, although defendant's jacket was "thin," hedid not see the outline of a weapon in defendant's jacket, and the second officer testifiedthat he did not see a bulge or the outline of a weapon in defendant's jacket until after hebegan to pursue defendant.
The People contend that the court erred in determining that the tip the officerreceived [*2]from the unnamed arrestee was unreliable.According to the People, the record establishes that the tip was reliable and the courttherefore should have considered the tip as a factor in support of a determination that theofficers had the requisite reasonable suspicion to justify their pursuit of defendant,particularly inasmuch as defendant was standing near the house identified in the tip(see generally People v De Bour, 40 NY2d 210, 222-223 [1976]). We reject thatcontention. The People contend that the tip was reliable because it was based upon thearrestee's personal knowledge and because "it is against the law to provide the policewith false information about a crime." Even assuming, arguendo, that the arrestee's basisof knowledge was sufficient because he had personally observed guns "stashed" behindhouse number 118, we conclude that the People did not establish "that the specificinformation given [by the arrestee was] reliable" (People v DiFalco, 80 NY2d693, 697 [1993]; see generally People v Johnson, 66 NY2d 398, 402-402[1985]). The arrestee did not provide the officer with any information about who placedthe guns behind house number 118, the precise location of the guns behind the house, orthe type of guns. Moreover, the officer previously had never met the arrestee or receivedreliable information from him.
We further conclude that the court properly determined that, when the officersinitially approached defendant, they had no more than an "objective, credible reason" torequest information (People vMoore, 6 NY3d 496, 498-499 [2006], citing De Bour, 40 NY2d at 223[2006]). The officers acknowledged at the suppression hearing that there was nothingabout the behavior of defendant or his companion that the officers found suspicious otherthan their proximity to house number 118. Although there was some testimony thatdefendant was standing in front of house number 118 when the officers first saw him, thecourt did not find that testimony credible but, rather, credited other testimony thatdefendant was standing in front of house number 116. That credibility determination isentitled to great deference (see Prochilo, 41 NY2d at 761; Martinez, 105AD3d at 1459). Furthermore, the first officer testified that he did not ask defendant'scompanion from where he was coming, nor did either officer testify that he saw thedirection from which defendant was coming, and thus there is no credible evidence in therecord supporting the claim that defendant was connected with the guns allegedly"stashed behind" house number 118. Defendant's presence on the curb in the generalvicinity of house number 116 was " 'readily susceptible of an innocent interpretation,' "i.e., that defendant was simply crossing the street (People v Riddick, 70 AD3d 1421, 1422 [2010], lvdenied 14 NY3d 844 [2010]), and "[t]he fact that defendant was located in ahigh[-]crime area does not by itself justify the police conduct where, as here, there wereno other objective indicia of criminality" (People v Stevenson, 273 AD2d 826,827 [2000]). We therefore conclude that, at the time the officers approached defendantand his companion, they were limited to a level one intrusion, i.e., a request forinformation (see generally De Bour, 40 NY2d at 223). Thus, the second officer'srequest for defendant to give his name was permissible.
We reject the People's contention that subsequent events gave rise to a reasonablesuspicion that defendant had committed or was about to commit a crime, as was requiredto justify the police pursuit of defendant when defendant did not respond to the officer'squestion (see People vCady, 103 AD3d 1155, 1156 [2013]; Riddick, 70 AD3d at 1422). Wehave previously held that " 'the fact that defendant reached for his waistband, absent anyindication of a weapon such as the visible outline of a gun or the audible click of themagazine of a weapon, does not establish the requisite reasonable suspicion thatdefendant had committed or was about to commit a crime' " (Cady, 103 AD3d at1156; see Riddick, 70 AD3d at 1422-1423). Here, although defendant wasreaching for his jacket pocket as he walked or ran away from the second officer, neitherofficer testified that he saw a bulge or the outline of a weapon in defendant's jacket.Rather, the second officer believed that defendant had a gun only because, in hisexperience, if an individual pulled vigorously at an object in his or her pocket, but theobject did not come out easily, that object usually was a weapon. While we are mindfulthat an officer may rely on his or her knowledge and experience in determining whetherreasonable suspicion exists, we respectfully disagree with our dissenting colleagues thatthe above circumstances were sufficient to establish the requisite reasonable suspicion"in the absence of other objective indicia of criminality" (Cady, 103 AD3d at1156 [internal quotation marks omitted]; see Riddick, 70 AD3d at 1423). Here,before pursuing defendant, the second officer knew only that defendant was walkingacross the street in a high-crime area, in the general vicinity of a house where anunnamed person of unestablished reliability claimed to have seen guns, and that, whenthe police approached, defendant walked or ran away while grabbing at his jacket pocket.We cannot [*3]conclude, based on the totality of thosecircumstances, that the police were justified in pursuing defendant (see People vHolmes, 81 NY2d 1056, 1058 [1993]; Cady, 103 AD3d at 1155-1156;Riddick, 70 AD3d at 1421-1423).
We note that, although it appears from the dissent that there was testimony at thesuppression hearing that defendant took an "aggressive fighter stance," there was no suchtestimony. Rather, that phrase was used only by defense counsel, when reading thesecond officer's testimony from the transcript of the felony hearing, in an attempt toimpeach the officer regarding when he drew his service revolver. Thus, there was noevidence before the suppression court that defendant took an "aggressive fighter stance"(see People v Hall, 208 AD2d 1044, 1046 [1994]; People v Blanchard,177 AD2d 854, 856 [1991], lv denied 79 NY2d 918 [1992]; People vGilman, 135 AD2d 951, 952-953 [1987], lv denied 71 NY2d 896 [1988]).
The People's reliance on People v Bachiller (93 AD3d 1196, 1196-1198 [2012],lv dismissed 19 NY3d 861 [2012]) is misplaced. In that case, the police wereresponding to a report of a possible stabbing when they noticed the defendant in a"heated argument" with another man and then saw the defendant chase that man throughadjacent backyards (id. at 1196). The defendant conceded that "the report of apossible stabbing coupled with the responding officer's observations at the scenefurnished the police with the requisite 'founded suspicion that criminal activity [was]afoot' sufficient to justify the common-law right of inquiry" (id., quotingMoore, 6 NY3d at 498). Having obtained the requisite founded suspicion, thepolice then observed the defendant walk briskly away from them and "grab and hold ontoan object in his waistband area" (id. at 1197). In determining that suppressionwas not warranted, we noted that the defendant "was not simply reaching in the directionof his waistband. Rather, the two officers as well as the initial responding officer, whowas also pursuing defendant, testified that defendant was clutching an object thatappeared to be a gun at his waistband" (id. at 1198 [emphasis added]). Here,neither officer testified that he observed any object—let alone an object thatappeared to be a gun—in defendant's pocket before beginning to pursue defendant.
All concur except Scudder, P.J., and Peradotto, J., who dissent and vote to reverse inaccordance with the following memorandum.
Scudder, P.J., and Peradotto, J. (dissenting). We respectfully dissent. In our view, thetwo Buffalo Police Department Housing Officers (officers) had the requisite reasonablesuspicion to pursue defendant. We would therefore reverse the order, deny that part ofthe omnibus motion seeking suppression of physical evidence and defendant's oralstatements to the police, and remit the matter for further proceedings on the indictment.
After he was indicted on a charge of criminal possession of a weapon in the seconddegree (Penal Law § 265.03 [3]), defendant sought suppression of the handgunthat had been seized from his jacket pocket on the ground that the officers lackedreasonable suspicion to pursue him. At the suppression hearing, the officers testified thatthey had received information from a person one of the officers had arrested earlier in theday concerning "possible weapons stashed behind a house" on Montana Avenue. Thearea around Montana Avenue was a high-crime area where there had been numerousarrests for narcotics and gun violence. Moreover, several people had been murdered inthat area during the year in which this incident took place. Upon approaching the area,the officers observed defendant and a second man standing on a curb near the house inquestion. The man with defendant had recently been the victim of a shooting, and theofficers stopped their patrol vehicle so the first officer could ask defendant's companionif he had any new information concerning that shooting. At that point, defendant"glanced in [the officers'] direction, his eyes got very big, and then he looked down andwalked away . . . very swiftly." Defendant's pace then escalated to a run.The second officer exited the patrol vehicle "just to see why [defendant] was going awayso fast." Defendant did not respond when asked for his name, but turned toward thesecond officer in an "aggressive fighter stance," grabbed the right side of his jacket, and"vigorously" struggled to pull something out of it. The second officer yelled at defendant,"don't do it," because the officer "believed that [defendant] had a weapon and he wastrying to pull it out of his jacket." The second officer testified that his belief was based onhaving been "involved in numerous weapons arrest[s] and most likely every single timewhen they're vigorously pulling something out of their coat [and] it doesn't come outeasily, it's normally a weapon." As defendant continued trying to pull something out ofhis coat, the second officer "pulled out [his] pistol, pointed it at [defendant], [and] toldhim again, don't do it." When defendant started running, the officers pursued him, caughthim, and recovered a handgun from his coat pocket.[*4]
"[I]t is well settled that the police may pursue afleeing defendant if they have a reasonable suspicion that [the] defendant has committedor is about to commit a crime . . . Flight alone is insufficient to justifypursuit because an individual has a right to be let alone and refuse to respond to policeinquiry . . . However, a defendant's flight in response to an approach by thepolice, combined with other specific circumstances indicating that the suspect may beengaged in criminal activity, may give rise to reasonable suspicion, the necessarypredicate for police pursuit" (People v Riddick, 70 AD3d 1421, 1422 [2010], lvdenied 14 NY3d 844 [2010] [internal quotation marks omitted]; see People vHolmes, 81 NY2d 1056, 1058 [1993]; People v Martinez, 80 NY2d 444, 446[1992]). "Reasonable suspicion represents that 'quantum of knowledge sufficient toinduce an ordinarily prudent and cautious [person] under the circumstances to believecriminal activity is at hand' " (Martinez, 80 NY2d at 448).
While each individual act of defendant was insufficient on its own to provide theofficers with the reasonable suspicion necessary to pursue and to detain him forcibly, wenote that the Court of Appeals has recognized that it is the combination of flight and"other specific circumstances indicating that [a] suspect may be engaged in criminalactivity" that may give rise to reasonable suspicion (People v Sierra, 83 NY2d928, 929 [1994]; see People vCady, 103 AD3d 1155, 1156 [2013]). "In determining whether a police officerhas reasonable suspicion to justify his [or her] actions, 'the emphasis should not benarrowly focused on . . . any . . . single factor, but [rathershould be] on an evaluation of the totality of circumstances, which takes into account therealities of everyday life unfolding before a trained officer' " (People v Stephens, 47 AD3d586, 589 [2008], lv denied 10 NY3d 940 [2008]).
We agree with the majority that " '[t]he [suppression] court's determination is entitledto great deference and will not be disturbed where it is supported by the record' " (People v Martinez, 105 AD3d1458, 1459 [2013]; seePeople v Howington, 96 AD3d 1440, 1441 [2012]; People v Davis, 48 AD3d1120, 1122 [2008], lv denied 10 NY3d 957 [2008]), but we find itdisturbing that Supreme Court failed to consider the testimony of the second officer that,based on his prior experience, when someone is vigorously trying to pull an object out ofa coat pocket and the object does not come out easily, that object is "normally a weapon."It is well settled that the police "are allowed to 'draw on their own experience andspecialized training to make inferences from and deductions about the cumulativeinformation available to them that might well elude an untrained person' " (People v Hall, 10 NY3d303, 311 [2008], cert denied 555 US 938 [2008]; see People vBrown, 151 AD2d 199, 203 [1989], lv denied 75 NY2d 768 [1989]).Although we have consistently held that the mere fact that a person reaches for hiswaistband, "absent any indication of a weapon such as the visible outline of a gun or theaudible click of the magazine of a weapon, does not establish the requisite reasonablesuspicion that defendant ha[s] committed or [is] about to commit a crime"(Riddick, 70 AD3d at 1422-1423; see Sierra, 83 NY2d at 929-930;Cady, 103 AD3d at 1156), we conclude that here, based on the experience of thesecond officer, there was an indication of a weapon, i.e., defendant took an "aggressivefighter stance" and was "vigorously" struggling to remove something from his coatpocket. Moreover, the facts in Riddick, a case relied on by the majority, aredistinguishable. In that case, the officers were in an unmarked car and were on a routinepatrol. There was no specific tip concerning weapons, and there was no evidence that thedefendant knew that the officers were police officers when he walked away from theirunmarked van. While the defendant in Riddick made a "gesture" toward hiswaistband, there was no testimony that the gesture was aggressive or vigorous or thatsuch a gesture was indicative of a weapon (id. at 1422-1424). Although a coatpocket may not be as common a location for a weapon, we conclude that the secondofficer's experience with weapons in coat pockets should have been considered by thecourt (see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Bachiller, 93 AD3d1196, 1198 [2012], lv dismissed 19 NY3d 861 [2012]). Indeed, inPeople v Pines (281 AD2d 311, 311-312 [2001], affd 99 NY2d 525[2002]), the defendant, who was walking in the street with a companion, noticed theofficers' unmarked but recognizable vehicle, after which "his eyes bulged out"(id. at 311). As the officers approached, the "defendant 'bunched up' his bubblejacket on the right side, at the waist area, with his hand cupped underneath it' "(id. at 312). The officer in Pines stated that the defendant's action"remind[ed] [him] of how he himself, when off-duty, sometimes adjusted his gun in asimilar manner" (id.). The Appellate Court relied upon that testimony in holdingthat the pursuit was justified (id.). In both Pines and the instant case, theknowledgeable and experienced officer observed conduct by the defendant that wasindicative of a weapon.
In addition, the officers in this case had received a tip from an arrestee, i.e., anidentified [*5]citizen informant, that there were gunsstashed in the area where they observed defendant and his companion. While we agreewith the majority that there was no information establishing the reliability of the tip, suchinformation may still be relied upon in a De Bour analysis. "Regardless ofwhether . . . the citizen-informant's basis of knowledge was sufficientlyestablished . . . , the combination of his report to the police and the officers'observation[s] . . . provided the requisite reasonable suspicion" (Matter of Shallany S., 11AD3d 414, 414 [2004]; see People v Gresty, 237 AD2d 931, 932 [1997]).
We therefore conclude that, based on the combination of the tip, the high-crimelocation, the presence of a recent shooting victim, defendant's initial behavior and hisconduct indicative of a weapon, the officers had the requisite reasonable suspicion forthe pursuit. Present—Scudder, P.J., Peradotto, Carni, Sconiers and Whalen, JJ.