| People v Stover |
| 2020 NY Slip Op 01676 [181 AD3d 1061] |
| March 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Stover, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered October 29, 2018, convicting defendant upon his plea of guilty of the crimeof criminal possession of a weapon in the second degree.
Defendant was in his parked vehicle when police officers approached the car, askedhim for identification and discovered that his driver's license was suspended. The officersarrested defendant for aggravated unlicensed operation of a motor vehicle and arrangedto tow the car. Upon conducting an inventory search, the officers found a handgun in thetrunk. Defendant was charged with criminal possession of a weapon in the second degreeand thereafter moved for suppression of the handgun. Following a hearing, County Courtdenied the motion, finding that the police officers' initial approach was appropriate, andthat the handgun was seized pursuant to a lawful inventory search. Without waiving hisright to appeal, defendant pleaded guilty to criminal possession of a weapon in thesecond degree and was sentenced, in accord with the plea agreement, to a prison term offive years to be followed by five years of postrelease supervision.[FN1] Defendant appeals.
Defendant contends, among other things, that his suppression motion should havebeen granted because the officers did not have a valid reason for their initial approach tohis vehicle. "In People v De Bour (40 NY2d 210 [1976]), the Court of Appeals'set forth a graduated four-level test for evaluating street encounters initiated by thepolice: level one permits a police officer to request information from an individual andmerely requires that the request be supported by an objective, credible reason, notnecessarily indicative of criminality; level two, the common-law right of inquiry, permitsa somewhat greater intrusion and requires a founded suspicion that criminal activity isafoot; level three authorizes an officer to forcibly stop and detain an individual, andrequires a reasonable suspicion that the particular individual was involved in a felony ormisdemeanor; level four, arrest, requires probable cause to believe that the person to bearrested has committed a crime' " (People v Rose, 155 AD3d 1322, 1323 [2017], lvdenied 31 NY3d 986 [2018], quoting People v Moore, 6 NY3d 496, 498-499 [2006] [citationomitted]; see People v De Bour, 40 NY2d at 223). A police approach to anoccupied, stationary vehicle is subject to the first level of the De Bour analysis(see People v Stevenson,149 AD3d 1271, 1272 [2017], lv denied 29 NY3d 1134 [2017]; People v Boler, 106 AD3d1119, 1121 [2013]).[FN2] Thus, police officers were authorizedto approach defendant's vehicle and ask him "briefly about his . . . identity,destination, or reason for being in the area" only if this intrusion was "supported by anobjective, credible reason, not necessarily indicative of criminality" (People v Grays, 179 AD3d1149, 1150 [2020] [internal quotation marks and citation omitted]; see People v Whalen, 101AD3d 1167, 1168 [2012], lv denied 20 NY3d 1105 [2013]; People v Wallgren, 94 AD3d1339, 1340-1341 [2012]).
A police officer testified that, on the night of the incident, he and his partner weresurveilling the parking lot of a private club, an area he described as a "hot spot" forcrimes. At approximately 3:00 a.m., they saw a white Honda pull in and park in the lot;the driver got out and entered the club. The officer and his partner then left the area andreturned approximately 40 minutes later. The officer could not remember whether theclub was still open at that time; he said that it ordinarily closed at 4:00 a.m. or a littleearlier. A few cars were still present in the lot, including the white Honda. The vehiclewas parked in the same location where the officers had seen it earlier, and was occupiedby defendant, whom the officers believed they had seen earlier driving the car andentering the club. Defendant was alone in the car and was engaged in a loud, "heatedargument" on his cell phone.
The officers approached, asked defendant "what he was doing in the car [and] ifeverything was okay," and requested identification. Defendant responded that everythingwas fine and that "he was having an argument with his girlfriend," and he provided afacially valid driver's license. Upon running the license, the officers learned that it hadbeen suspended for an insurance lapse. The officers then arrested defendant, conductedthe inventory search and discovered the gun in the trunk.[FN3]
The authority of police to approach individuals and request information is fairlybroad, but such an intrusion "must be predicated on more than a hunch, whim, caprice oridle curiosity" (People v Ocasio, 85 NY2d 982, 985 [1995]; see People vHollman, 79 NY2d 181, 190 [1992]; People v De Bour, 40 NY2d at 217).The Court of Appeals has held that the fact that an encounter took place in "a discretearea of a city identified as a high crime area" does not, without more, justify police inapproaching an individual to request information and identification (People vMcIntosh, 96 NY2d 521, 526 [2001]; see People v Savage, 137 AD3d 1637, 1639 [2016]; People v Johnson, 109 AD3d449, 450 [2013], appeal dismissed 23 NY3d 1001 [2014]; People v Miles, 82 AD3d1010, 1011 [2011]). As that Court explained, "it has been crucial whether anexus to conduct existed, that is, whether the police were aware of or observedconduct which provided a particularized reason to request information" beyondmere presence in an area where others had been known to commit crimes (People vMcIntosh, 96 NY2d at 526-527 [emphases added]). Here, there was no such nexusbetween the presence of defendant's vehicle in a high-crime area and any conduct on hispart.
Police had seen defendant enter the club earlier and had no reason to believe that hewas anything but a customer with a legitimate reason to be there. His vehicle was legallyparked on private property (seePeople v Mobley, 48 AD3d 374, 375 [2008]; compare People vStevenson, 149 AD3d at 1272; People v Alejandro, 142 AD3d 876, 876 [2016], lvdenied 28 NY3d 1070 [2016]; People v O'Brien, 140 AD3d 1325, 1325-1326 [2016]; People v Thomas, 19 AD3d32, 33-34 [2005], lv denied 5 NY3d 795 [2005]). The club was either stillopen or had just closed, and a few other vehicles were present (see People vMiles, 82 AD3d at 1010-1011; compare People v Grays, 179 AD3d 1149, 1151 [2020];People v Dunn, 253 AD2d 712, 712 [1998], lv denied 92 NY2d 1031[1998]). The condition of defendant's vehicle posed no reason for concern (comparePeople v Harrison, 57 NY2d 470, 475 [1982]; People v Whalen, 101 AD3dat 1168; People v Evans, 175 AD2d 456, 457 [1991], lv denied 79 NY2d856 [1992]). Police had not observed any erratic or unusual driving when defendantarrived (compare People vKaragoz, 143 AD3d 912, 914 [2016]; People v Wallgren, 94 AD3d at1340), nor had they received tips or other information associating defendant's vehiclewith any reason for further inquiry (compare People v Farnsworth, 134 AD3d 1302, 1303[2015], lv denied 27 NY3d 1068 [2016]; People v Witt, 129 AD3d 1449, 1449 [2015], lvdenied 26 NY3d 937 [2015]; People v Boler, 106 AD3d at 1120).
The only remaining factor—defendant's engagement in an argument on hiscell phone while alone in his private vehicle—did not provide any apparent nexusto the drug and weapons crimes that police said were typically committed in the area, orgive rise to any other objective reason to question his presence. Nothing about a driver'sconduct in arguing on a cell phone, without more, suggests criminal activity related toweapons or drugs (compare People v Haggray, 173 AD2d 962, 963 [1991], lvdenied 78 NY2d 966 [1991]). A sole occupant of a private vehicle arguing withsomeone who is not present gives rise to no apparent reason for police to intervene, suchas potential safety concerns (compare People v Black, 59 AD3d 1050, 1050 [2009],lv denied 12 NY3d 851 [2009]) or a need for assistance (compare People vGrays, 179 AD3d at 1151).
Thus, we find that police did not have the requisite objective, credible reason forapproaching defendant's vehicle in the first instance. The encounter was further invalidbecause police had no objective, credible reason to extend the initial conversation byrunning defendant's driver's license after he responded to their initial inquiry andprovided the information they requested (see People v Mobley, 48 AD3d at 375;People v Hogencamp, 295 AD2d 808, 810 [2002]). The officer gave noexplanation for his decision to intrude further at that point, nor does the record revealsuch an explanation. Nothing about the exchange with defendant gave rise to any reasonto suspect that he was not telling the truth (compare People v Stevenson, 149AD3d at 1272). Defendant's driver's license did not appear to belong to someone else(compare People v Ocasio, 85 NY2d at 984) or reveal anything unusual on itsface (compare People v Grays, 179 AD3d at 1149). Lacking an objective,credible reason that justified police in approaching defendant's vehicle and makinginquiries, the encounter was invalid at its inception (see People v McIntosh, 96NY2d at 525-527; People vLaviscount, 116 AD3d 976, 978-979 [2014], lv denied 24 NY3d 962[2014]; People v Hurdle,106 AD3d 1100, 1104 [2013], lvs denied 22 NY3d 956, 996 [2013];People v Miles, 82 AD3d at 1010-1011; People v Mobley, 48 AD3d at375; People v Rutledge, 21AD3d 1125, 1126 [2005], lv denied 6 NY3d 758 [2005]). Accordingly,defendant's motion to suppress the physical evidence should have been granted. As such,the judgment must be reversed and the indictment dismissed. Defendant's remainingarguments are rendered academic by this determination.
Aarons, Pritzker and Colangelo, JJ., concur.
Egan Jr., J. (dissenting). Because County Court did not, in my opinion, err in denyingdefendant's motion to suppress statements made by him to the police and the physicalevidence seized from him, I respectfully dissent.
"In People v De Bour (40 NY2d 210 [1976]), the Court of Appealsestablished a graduated four-level test for evaluating the propriety of police encounterswhen a police officer is acting in a law enforcement capacity. The first level permits apolice officer to request information from an individual, and merely requires that therequest be supported by an objective, credible reason, not necessarily indicative ofcriminality. The second level, known as the common-law right of inquiry, requires afounded suspicion that criminal activity is afoot, and permits a somewhat greaterintrusion. The third level permits a police officer to forcibly stop and detain anindividual. Such a detention, however, is not permitted unless there is a reasonablesuspicion that an individual is committing, has committed, or is about to commit a crime.The fourth level authorizes an arrest based on probable cause to believe that a person hascommitted a crime" (People vKaragoz, 143 AD3d 912, 913-914 [2016] [internal quotation marks andcitations omitted]; see People v Hollman, 79 NY2d 181, 184-185 [1992]).
Here, the police approached defendant's parked vehicle after observing defendantinside screaming at someone on his cell phone. The officer did not stop defendant'svehicle and did not ask any accusatory questions focusing on possible criminality.Although defendant's actions may have had an innocent explanation, they neverthelessserved as the basis for a level one police inquiry under De Bour, including theofficer's request for defendant's driver's license and a check of the status thereof, withoutneed for further justification (see People v Ocasio, 85 NY2d 982, 984 [1995]; People v Stevenson, 149 AD3d1271, 1272 [2017], lv denied 29 NY3d 1134 [2017]; People vKaragoz, 143 AD3d at 914; People v Thomas, 19 AD3d 32, 41 [2005], lvdenied 5 NY3d 795 [2005]). Had defendant's license been valid, any furtherescalation of this police encounter would not have been warranted under DeBour. However, defendant's driver's license was not valid—it was suspended,thus providing the basis for the arrest of defendant for aggravated unlicensed operationof a motor vehicle. Because defendant could not legally drive the vehicle, the subsequenttowing and inventory search of it (during which a loaded 9mm pistol was found) werelegally justified.
Ordered that the judgment is reversed, on the law, motion to suppress granted, andindictment dismissed.
Footnote 1:Following sentencing,County Court granted defendant's motion for a stay of the judgment of convictionpending appeal (see CPL 460.50).
Footnote 2:In contrast, a stop of amoving vehicle must be based upon a reasonable suspicion of criminal activity (seePeople v Ocasio, 85 NY2d 982, 984 [1995]).
Footnote 3:The officer who spokewith defendant testified that he asked defendant "if he had anything in the car, anythinglike that that we need to know about." This "pointed, accusatory question[ ]" would havebeen improper if asked during the initial encounter (People v Jordan, 9 AD3d 792, 795 [2004], lvdenied 3 NY3d 708 [2004]). On cross-examination, the officer clarified that he askedthis question "later" and not as part of his initial conversation. County Court found thatthe officer did not ask this question until after discovering that defendant's license wassuspended—a factual assessment to which this Court defers (see e.g. People v Harrison, 162AD3d 1207, 1210-1211 [2018], lv denied 32 NY3d 1205 [2019]).