| People v Atkinson |
| 2014 NY Slip Op 05373 [119 AD3d 1151] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vKarseen J. Atkinson, Appellant. |
Cynthia Feathers, Glens Falls, for appellant, and appellant pro se.
Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered March 23, 2012, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminal possession of a weapon in the fourth degree.
When this matter was previously before this Court, we decided several issues infavor of the People, but remitted for County Court to hold a hearing to determinewhether to suppress the cocaine recovered from defendant's mouth (111 AD3d 1061[2013]). That hearing was limited to resolving factual issues regarding the use of tasersand whether such use might be considered excessive force so as to render the search andseizure unreasonable, thereby requiring suppression (id. at 1063). Thereafter,County Court held a hearing and denied suppression. Now addressing the one remainingissue, we affirm.
Claims that the police used excessive force to effect a seizure "are properly analyzedunder the Fourth Amendment's 'objective reasonableness' standard" (Graham vConnor, 490 US 386, 388 [1989]; accord People v Smith, 95 AD3d 21, 26 [2012]). Thisanalysis "requires a careful balancing of the nature and quality of the intrusion on theindividual's Fourth Amendment interests against the countervailing governmentalinterests at stake" (Graham v Connor, 490 US at 396 [internal quotation marksand citations omitted]). The proper application of this test of objective reasonableness"requires careful attention to the facts and circumstances of each [*2]particular case, including the severity of the crime at issue,whether the suspect poses an immediate threat to the safety of the officers or others, andwhether he [or she] is actively resisting arrest or attempting to evade arrest by flight"(id.; accord People v Smith, 95 AD3d at 26; see People v Price, 112 AD3d1345, 1346 [2013]). Courts must also take into account "that police officers areoften forced to make split-second judgments—in circumstances that are tense,uncertain, and rapidly evolving—about the amount of force that is necessary in aparticular situation" (Graham v Connor, 490 US at 397; see Pacheco v City of NewYork, 104 AD3d 548, 549 [2013]).
According to the testimony at the suppression hearing, the police apprehendeddefendant on a parole violation, aware that he was a convicted felon who had abscondedfrom parole and was allegedly trafficking drugs and in possession of a weapon. Afterpolice stopped the car he was riding in, defendant refused to show his hands or get out ofthe vehicle when ordered to do so. During and after his removal from the car, he used hislegs to resist. Once placed upon the ground, he kept his hands under his body and refusedto comply with orders that he put his hands behind his back. He also failed to complywith orders to open his mouth or spit out what was in his mouth, despite warnings that hewould be tased. At that point, believing that defendant had narcotics in his mouth and notknowing whether he had a concealed weapon, an officer tased him on thecalf—through his pants—using a dry stun.[FN*] The tase lasted approximately fourseconds, although defendant kicked his leg so the taser may have lost connection withhim before that full time had elapsed. Defendant opened his mouth, revealing a plasticbaggie with a white substance, but he quickly clamped his mouth shut. The same officeragain ordered defendant to open his mouth and spit out what was inside. That officertased defendant's leg a second time, this time for three seconds. At the same time, andapparently not knowing that he was acting simultaneously with the first officer, aninvestigator tased defendant's other leg. Defendant then spit the plastic baggie, whichcontained cocaine, out of his mouth and allowed officers to place him in handcuffs. Theentire incident, from the time that defendant was removed from the car until the cocainewas recovered, occurred in the span of one minute.
This was a highly charged situation, where defendant refused to comply with anyorders. The police were unsure if defendant had a weapon, as they had previously beeninformed that he was armed, he refused to show his hands and he kept them under hisbody after he was down on the ground. The police also saw what theysuspected—correctly—were narcotics in defendant's mouth. Aside fromwanting to secure that evidence, the officer and investigator testified that it can bedangerous or deadly for an individual to swallow an unknown quantity of narcotics.Accordingly, the officers were trying to protect defendant's health and safety by seekingto remove the drugs from his mouth. The tasers were used after warnings and in responseto defendant's actions and refusal to comply with orders, which created a potentiallydangerous [*3]situation for the officers and defendanthimself. The police were required to react quickly to safely resolve the situation. Underthe circumstances, the police officers' response was reasonable (see Pacheco v City ofNew York, 104 AD3d at 550; compare People v Smith, 95 AD3d at 26-27).Thus, County Court properly denied defendant's motion to suppress the cocaine.
Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The transcript refers tothis as a "drive stun," but it appears that this is merely a typographical error. A dry stun,which is performed by removing the cartridge from the taser, sends an arc of electricityacross the head of the taser that is pressed against the suspect, causing pain to inducecompliance. In contrast, if the cartridge is not removed, probes are shot from the taserinto the suspect, the arc of electricity goes between the two probes, and this usuallyresults in neuromuscular interruption. The latter is generally more painful.