| People v Howard |
| 2015 NY Slip Op 05350 [129 AD3d 1654] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohn C. Howard, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), rendered August 6, 2012. The judgment convicted defendant, upon his plea of guilty,of burglary in the third degree, criminal mischief in the third degree and petitlarceny.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty ofburglary in the third degree (Penal Law § 140.20), criminal mischief in thethird degree (§ 145.05 [2]) and petit larceny (§ 155.25),defendant contends that Supreme Court erred in refusing to suppress physical evidenceseized by the police as the result of an unlawful stop, detention, and arrest. We reject thatcontention.
According to the evidence presented at the suppression hearing, the Rochester PoliceDepartment received a call at approximately 10:00 a.m. that two black males had beenseen walking around a neighborhood carrying bags and that they had gone behind oneparticular residence on Robin Street. The responding officer observed two menmatching that description coming down the driveway of another residence on RobinStreet. The officer, who was aware that there had been other burglaries in thesurrounding area where copper plumbing had been targeted, approached the men andasked them "what they were doing." The men responded that they were walking aroundthe area looking for copper plumbing. The officer observed that defendant was carrying abook bag, and that the other man was carrying a three-foot-long duffel bag. The officerthen asked "what was in the bag," and the men responded that they had copper plumbing.Without further prompting, the man with defendant opened the duffel bag and showedthe officer its contents, which consisted of numerous copper pipes of "different sizes[and] lengths," with no other type of scrap metal. Within two or three minutes of theofficer's initial approach, her sergeant arrived on the scene. After frisking the men, theofficer and sergeant placed the men in their patrol vehicles. The officer was unable torecall whether the men were handcuffed before being placed in the patrol vehicles. It isundisputed, however, that the two men were unable to exit the patrol vehicles from theinside.
Immediately after placing the men in the patrol vehicles, the officer and her sergeantchecked the residence, whereupon they noticed that a window next to the side door of theresidence was broken and the door was unlocked. The officer and her sergeant enteredthe residence and proceeded to the basement, where they noticed water running fromcopper pipes that had recently been cut, and they observed that the water was justbeginning to spread on the basement floor. The pipes in the basement appeared to be thesame size and description as those seen by the officer in the duffel bag. At that point, theofficer and her sergeant returned to their vehicles, drove to the police station, and placedboth men under arrest.
It is well established that, in evaluating the legality of police conduct, we "mustdetermine [*2]whether the action taken was justified inits inception and at every subsequent stage of the encounter" (People vNicodemus, 247 AD2d 833, 835 [1998], lv denied 92 NY2d 858 [1998],citing People v De Bour, 40 NY2d 210, 215 [1976]). Here, contrary todefendant's contention, we conclude that "the information provided in the. . . dispatch coupled with the officer['s] observations provided the [officer]with 'an objective, credible reason for initially approaching defendant [and the otherman] and requesting information from [them]' " (People v Burnett, 126 AD3d1491, 1492 [2015]), and that the officer's first inquiry was a "nonthreateningquestion[ ] not indicative of criminality, and thus w[as] justified as a level one inquiry"(People v Doll, 98 AD3d356, 367 [2012], affd 21 NY3d 665 [2013], rearg denied 22 NY3d1053 [2014], cert denied 572 US &mdash, 134 S Ct 1552 [2014], citingPeople v Hollman, 79 NY2d 181, 185 [1992]). We further conclude that theanswer to that inquiry provided the officer with the requisite founded suspicion thatcriminal activity was afoot to justify her subsequent common-law inquiry regarding thecontents of the bag (see generally Hollman, 79 NY2d at 191-192).
Contrary to defendant's contention, he was not subjected to a de facto arrest when hewas placed in the back seat of the patrol vehicle. We conclude that "the police action fellshort of the level of intrusion upon defendant's liberty and privacy that constitutes anarrest" (People v Hicks, 68 NY2d 234, 240 [1986]; see generally People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Here, thebrief investigative detention of defendant by the police was "justified by reasonablesuspicion that a crime [had] been, [was] being or [was] about to be committed"(People v Roque, 99 NY2d 50, 54 [2002]; see People v Williams, 73 AD3d 1097, 1098 [2010], lvdenied 15 NY3d 779 [2010]), i.e., "that quantum of knowledge sufficient to inducean ordinarily prudent and cautious [person] under the circumstances to believe criminalactivity is at hand" (People v Woods, 98 NY2d 627, 628 [2002] [internalquotation marks omitted]; see e.g. Williams, 73 AD3d at 1098-1099; People vMazza, 246 AD2d 671, 672 [1998]; cf. People v Lee, 96 AD3d 1522, 1525-1526 [2012]).Indeed, after the man with defendant displayed the contents of the duffel bag, the officerhad reasonable suspicion that defendant and the other man had committed a crime. Theestablished circumstances at that point were that the officer had received a report thatsuspicious individuals carrying bags had gone behind a residence in an area whereburglaries targeting copper pipe had previously occurred; the officer observed two menmatching the description coming down a driveway carrying bags; the two men admittedthat they were walking around looking for copper plumbing; and the contents of theduffel bag revealed their actual possession of numerous copper pipes of various sizeswith no indication of other scrap metals. Under these circumstances, we conclude that thetemporary detention of defendant was proper as "part of a continuum of permissiblepolice intrusions in response to escalating evidence of criminal activity" (Roque,99 NY2d at 54). Here, "the police diligently pursued a minimally intrusive means ofinvestigation likely to confirm or dispel suspicion quickly, during which time it wasnecessary to detain the defendant" (Hicks, 68 NY2d at 242), and "a less intrusivemeans of fulfilling the police investigation was not readily apparent" (Williams,73 AD3d at 1099). Present—Scudder, P.J., Centra, Peradotto, Lindley andWhalen, JJ.