| People v Rose |
| 2017 NY Slip Op 08217 [155 AD3d 1322] |
| November 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, v Joseph A.Rose, Respondent. |
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forappellant.
Alyssa S. Congdon, Binghamton, for respondent.
Clark, J. Appeal from an order of the County Court of Broome County (Pelella, J.), enteredJanuary 13, 2017, which granted defendant's motion to suppress evidence.
At roughly 2:40 a.m. on February 26, 2015, Kevin Mauser, a sergeant in the Broome CountySheriff's Office, received a radio dispatch informing him that the victim of an alleged robberyhad reportedly found his stolen vehicle. Roughly 15 minutes later, Mauser arrived in the generalarea in which the vehicle had been reported as found and, before confirming its location, began"looking for anybody" within a one-block radius of the vehicle. As he was driving, Mauserspotted an individual, whom he could not initially identify as a man or woman, "walking prettyfast" and "with a purpose" in the opposite direction of the vehicle. Mauser circled the block andapproached the individual—later identified as defendant—from behind in hismarked police vehicle, activated the vehicle's overhead lights, opened his door and directeddefendant to stop. According to Mauser, defendant looked over his shoulder and immediatelyfled. Mauser then pursued defendant in his vehicle and, as defendant was attempting to jump ashort fence, exited his vehicle and, with his taser drawn, ordered defendant to stop. Defendantcomplied, and Mauser grabbed defendant's arm and pulled him down from the fence. Defendantwas subsequently searched, arrested and, following a search of his home pursuant to a searchwarrant, charged with two counts of robbery in the second degree, unauthorized use of a motorvehicle in the first degree, grand larceny in the third degree and criminal possession of stolenproperty in the third degree. After a suppression hearing, County Court granted defendant'smotion to suppress the physical evidence found on his person and in [*2]his home, as well as any statements he made to the police,prompting this appeal by the People.
In People v De Bour (40 NY2d 210 [1976]), the Court of Appeals "set forth agraduated four-level test for evaluating street encounters initiated by the police: level one permitsa police officer to request information from an individual and merely requires that the request besupported by an objective, credible reason, not necessarily indicative of criminality; level two,the common-law right of inquiry, permits a somewhat greater intrusion and requires a foundedsuspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop anddetain an individual, and requires a reasonable suspicion that the particular individual wasinvolved in a felony or misdemeanor; level four, arrest, requires probable cause to believe thatthe person to be arrested has committed a crime" (People v Moore, 6 NY3d 496, 498-499 [2006]; see People vHollman, 79 NY2d 181, 184-185 [1992]; People v De Bour, 40 NY2d at 223). Here,as County Court properly held, the information possessed by Mauser at the time that he observeddefendant walking justified no more than a level one stop to request information (see Peoplev Holmes, 81 NY2d 1056, 1058 [1993]; People v Burnett, 126 AD3d 1491, 1492 [2015]; People v Savage, 59 AD3d 817,819 [2009], lv denied 12 NY3d 920 [2009]; People v Locano, 209 AD2d 278,279 [1994]). However, the manner in which Mauser approached defendant—that is, byactivating the overhead lights on his marked police vehicle and directing defendant tostop—elevated the encounter to a level two common-law inquiry (see generally Peoplev Hollman, 79 NY2d at 191-192; People v Faines, 297 AD2d 590, 593 [2002], lvdenied 99 NY2d 558 [2002]; compare People v Morris, 105 AD3d 1075, 1077 [2013], lvdenied 22 NY3d 1042 [2013]; People v Savage, 59 AD3d at 819; People vLocano, 209 AD2d at 279), requiring a founded suspicion that criminality was afoot (seePeople v Hollman, 79 NY2d at 185). At the time of Mauser's initial encounter withdefendant, he lacked such a founded suspicion.
In arguing that Mauser had, at least, a founded suspicion of criminality, the People relyheavily on defendant's geographic proximity to the stolen vehicle. However, time and again,courts have held that geographic location, without more, is insufficient to sustain a suspicion ofcriminality (see e.g. People vBarksdale, 26 NY3d 139, 144 n 3 [2015]; People v McIntosh, 96 NY2d 521,526-527 [2001]; People vMcCullough, 31 AD3d 812, 813 [2006], lv denied 7 NY3d 850 [2006];People v Boulware, 130 AD2d 370, 373 [1987], appeal dismissed 70 NY2d 994[1988]). Although Mauser testified that he arrived in the area 13 to 14 minutes after receiving thedispatch, the record is devoid of any indication that Mauser possessed information—suchas the precise time that the vehicle was reported as found or how long it had been there prior tothe report—that could lead to the reasonable inference that the person or persons involvedin the theft of the vehicle might still be in the area. Nor does the record establish that Mauser wasacting on reliable information identifying or describing the person suspected to have stolen thevehicle (compare People vRobinson, 101 AD3d 1245, 1245-1246 [2012], lv denied 20 NY3d 1103 [2013];People v Hall, 41 AD3d 880,882 [2007], lv denied 9 NY3d 876 [2007]; People v Ward, 201 AD2d 292,292-293 [1994], lv denied 84 NY2d 834 [1994]). Rather, Mauser solely relied ondefendant's location in relation to the area in which the vehicle was reportedly found and the factthat he was walking at a brisk pace at 2:53 a.m. on a cold winter day. Together, these facts wereinsufficient to form a founded suspicion of criminality, so as to justify the common-law right toinquire (see People v McCullough, 31 AD3d at 813; cf. People v Ferry, 152AD2d 952, 952-953 [1989]).
In any event, even if Mauser's initial encounter with defendant was considered to be a levelone stop or if Mauser were found to have possessed a founded suspicion that criminality wasafoot to justify a level two stop, defendant had the constitutional right to be let alone and, bydisregarding Mauser's directive to stop, defendant did not elevate the level of suspicion to areasonable suspicion that a crime had been, was being or was about to be committed (seePeople v Moore, 6 NY3d at 500; People v May, 81 NY2d 725, 727-728 [1992];People v Howard, 50 NY2d 583, 586, 591-592 [1980]). While "[f]light, combined withother specific circumstances indicating that the suspect may be engaged in criminal activity,could provide the predicate [*3]necessary to justify pursuit"(People v Holmes, 81 NY2d at 1058; see People v Martinez, 80 NY2d 444, 448[1992]; People v Howard, 50 NY2d at 592), the requisite additional facts supportingcriminality were lacking here (see People v Holmes, 81 NY2d at 1058; People vMcCullough, 31 AD3d at 813; compare People v Ward, 201 AD2d at 292-293).Accordingly, Mauser's pursuit and forcible stop and detention of defendant were improper, andCounty Court properly suppressed the physical evidence found on defendant's person and in hishome, as well as any statements he made to police (see People v Howard, 50 NY2d at592).
To the extent that we have not addressed any of the People's arguments, they have beenreviewed and found to be without merit.
Peters, P.J., Garry, Devine and Aarons, JJ., concur. Ordered that the order is affirmed.