| People v Thompson |
| 2015 NY Slip Op 03605 [127 AD3d 658] |
| April 30, 2015 |
| Appellate Division, First Department |
[*1](April 30, 2015)
| The People of the State of New York,Respondent, v Latiff Thompson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., atsuppression hearing, jury trial and sentencing), rendered May 23, 2012, convictingdefendant of criminal possession of a weapon in the second degree (two counts) andcriminal possession of stolen property in the fourth degree, and sentencing him, as asecond violent felony offender, to an aggregate term of 12 years, unanimously reversed,on the law, the motion to suppress granted, and the indictment dismissed.
In response to defendant's motion to suppress a gun and the credit card belonging tothe complainant, a hearing was held at which Police Officers Kahla Cadore and SiwyMade testified that on August 22, 2011, they, along with Officer Gene Park, were onuniform foot patrol in their assigned area, which extended from East 112th to East 115thStreet, and from First Avenue to Madison Avenue. At around 11:25 p.m., the officersheard a radio report that a gunpoint robbery had just occurred at 77 East 115thStreet.
According to Made, the report described the robbers as three black men around 20years old. All of the men were reported to be wearing shorts, one was said to have on awhite "wifebeater" vest or tank top, another a polo shirt, and the third man's shirt was notdescribed. According to Cadore, based on memo book entries she recorded hours afterthe arrest, the radio run described three black men, about 5'7" tall, 20 years old, onewearing a white vest or tank top and khaki shorts, a second wearing a red polo shirt andkhaki pants, and the third a buttoned-down, black and white T-shirt. The report alsostated that the men were running from the Taft Housing Project toward the JohnsonHousing Project.
While the officers searched the area, about 10 minutes later, they received a secondradio report of a "suspicious male" in front of 1581 Park Avenue, in the JohnsonHousing Project, two blocks from the location of the robbery. The officers went to thataddress, and saw a man entering the building using a key, which they did not find to besuspicious. About a minute later, however, they saw defendant and three young blackmen emerge from 1581 Park Avenue. According to Made, one man wore a white"wifebeater" tank top, one a blue polo shirt, and the third man wore shorts. Madetestified that defendant fit the radioed description because he was young, black, and worea tank top. Cadore testified that the four men were black and in their early 20's. Two ofthem wore "wifebeaters with shorts," one wore a red polo shirt, and defendant wore ablack and white checkered shirt. According to Cadore, the men were all approximately5'7". Defendant's pedigree information later showed that he was 5'8" tall.
Made directed the four men to stop and stand against a fence in front of 1581 ParkAvenue, and he then asked them for identification. A few seconds later, Made radioedthat he had stopped four men. Immediately after that, one man fled, and Officer Parkchased him. The officers then frisked the remaining men. Made did a "quick pat" ofdefendant's sides and another man, while Cadore frisked the third man; neither officerfound anything.
The officers then waited with the men for the complainant to arrive for a showup.After approximately five or six minutes had passed, Made noticed defendant "going tohis waistband, [*2]inside his back" with his right hand, asthough he were "throwing drugs or something." At around the same time, Cadore saw abulge in defendant's waistband, under his shirt, in front of his pants, and saw defendantmake "movements toward his back and toward his waist area." Made then lifteddefendant's shirt to reveal a gun in his waistband. The officers arrested defendant.Several minutes later, other officers arrived. One of them searched defendant andrecovered a credit card bearing the name of the complainant.
The court denied defendant's motion to suppress the gun as the product of an illegalsearch and the credit card as the fruit of a consequently illegal arrest. The courtacknowledged that the 911 caller's descriptions of the robbers' clothing did not comportwith what the individuals who were stopped were wearing, but speculated that the menmight have changed clothes in the building. Regardless, the court concluded, the mencould be subject to a level one inquiry under People v De Bour (40 NY2d 210[1976]) because they emerged from a building located in the direction where the robberswere reported to have been running, and it was reasonable for the police officers to askthem whether they had seen anything suspicious. According to the court, the situationchanged when one of the men took flight, which gave the officers the reasonablesuspicion necessary to detain the remaining men. Further, the officers were entitled todetermine why defendant was making certain hand movements near his waistline.
Defendant effectively concedes that the sequence of events leading up to theemergence of the four men from the building at 1581 Park Avenue justified a level oneDe Bour request for information. We agree, if only because the group of men wasin a location to which a group of robbers had been reported to have fled only minutesearlier, giving the officers an articulable reason for inquiring into why the men were inthe area (see People v Hollman, 79 NY2d 181, 191 [1992]). The question, then,is whether the encounter ever escalated to a point that the police would have beenjustified in holding the men at the scene while the complainant was transported to it.
As noted, reasonable suspicion is a necessary predicate to a detention for a showupidentification (see People vWilliams, 87 AD3d 938 [1st Dept 2011], lv denied 18 NY3d 863[2011]). Further, a person's flight is sufficient to create the reasonable suspicionnecessary to escalate a level one or level two encounter to a level three detention, so longas other circumstances are attendant, such as a high-crime location and activitysuggesting, although not alone creating, reasonable suspicion that the person fleeing thescene may be engaged in criminal conduct (see People v Martinez, 80 NY2d 444,448 [1992]). In all of the cases which discuss flight as the determining factor in creatingreasonable suspicion, however, the defendant is the person who fled. Here, of course,defendant did not flee; he obeyed the officers' direction to stop and to submit to theirquestioning. The People contend that this is irrelevant, because the consciousness of guiltdemonstrated by the person who ran was imputed to the group as a whole.
We reject this approach, which the People fail to support with even a single casecitation. The flight of one member of a group is hardly indicative of the collective guiltof the group. It is just as readily demonstrative of the innocence of those who remain atthe scene. More importantly, it would be manifestly unfair to place an individual's rightto be left alone in the hands of another person over whom he has no control, and whomay not even be known to that person (see People v St. Clair, 80 AD2d 691 [3dDept 1981], affd 54 NY2d 900 [1981]).
In any event, the other man's flight, even if it could in theory be imputed to defendantand the others in the group, was insufficient to raise the encounter to one based onreasonable suspicion that a crime had been committed. That is because the attendantcircumstances were not otherwise suggestive of criminal activity. As the suppressioncourt observed, the clothing worn by the men in the group did not match the clothingdescribed to the officers in the radio run. Further, there was nothing unique about fourmen walking together late on a summer evening, and the fact that they left a buildingwhich was located in the housing project to which the radio run had reported the robberswere running was not strongly indicative that this was the same group (compare People v Michimani,115 AD3d 528 [1st Dept 2014], lv denied 23 NY3d 1040[*3][2014] [defendant's flight was sufficient to raise level ofsuspicion and justify pursuit where he was with a group of eight men, the size of thegroup matched the description of a "shots fired" radio transmission, as did their physicaldescriptions, and the location where the police encountered them was "(i)n very closetemporal and spatial proximity to the transmissions and the specific location"]).
Since the police officers did not have the reasonable suspicion necessary to detain themen, and should have let them know they were free to leave once they had gathered thebasic information permissible in a level one stop, the officers should never have had theopportunity to notice the bulge in defendant's waistline that they missed when theyperformed their initial search. Nor can the lifting of defendant's shirt and seizure of thegun be justified as having been in the interests of the officers' safety, since there was notestimony that the officers believed defendant to be carrying a weapon (see People vAlozo, 180 AD2d 584 [1st Dept 1992]). To the contrary, Officer Made seemed tothink that the gestures defendant was making had to do with an effort to hide drugs.
Because the seizure of the weapon was illegal, so too was the arrest of defendant forpossessing it. Accordingly, the credit card should have been suppressed as the fruit of anunlawful arrest (see People v Powell, 242 AD2d 500 [1st Dept 1997]).Concur—Mazzarelli, J.P., Sweeny, Renwick, Feinman and Kapnick, JJ.