People v Smith

[*1] People v Smith 2006 NY Slip Op 51209(U) [12 Misc 3d 1173(A)] Decided on June 23, 2006 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2006
Supreme Court, New York County

The People of the State of New York

against

Kenny Smith, Defendant.



5584/05



For the People: David Nasar, Esq.

For the Defendant: Ronald Hart, Esq.

Lewis Bart Stone, J.

Defendant Kenny Smith ("Smith"), indicted for Criminal Possession of a Controlled Substance in the Third Degree, P.L. §220.16(12), has moved to suppress the cocaine seized from him at the time of his arrest. Smith was arrested by police officers, who as part of a "roving patrol" targeting livery cabs in response to a series of recent cab robberies, stopped the livery cab in which he was a passenger. Smith contends inter alia, that such stop constituted an illegal seizure and that the police lacked reasonable suspicion to remove Smith from the vehicle, and that as a result, the cocaine was illegally seized. On May 9, 2006, this Court held a Mapp/Dunaway hearing; the People called one witness, Lieutenant Christopher Schmidt ("Schmidt"). I find his testimony credible. Smith called no witnesses.

FINDINGS OF FACTIn the late afternoon on September 28, 2005, Schmidt, the Platoon Commander of the 4:00 p.m. to midnight tour of duty of the Manhattan North Task Force, received a "Pattern Sheet" generated by the police department computer system, from his commanding officer, listing a series of cab robberies that had occurred in the past few weeks in Harlem near the borderline of the 25th Precinct and the 32nd Precinct. The report listed "about a half dozen" robberies all involving livery cabs which had occurred in the area of Madison Avenue to Fifth Avenue from 130th through 140th Street.[FN1] Several of the robberies involved the use of a handgun, and all involved between one and four male perpetrators. Two robberies occurred in the last twenty-four hours "within a few blocks" of Madison Avenue between 131st Street and 132nd Street. Schmidt distributed copies of the Pattern Sheet to his platoon at roll call and ordered all officers during their shift to "stop livery cabs [*2]that had males in the back" in the specific area of Harlem described in the Pattern Sheet whenever they were not otherwise responding to radio calls.

Smith was in a northbound livery cab on Madison Avenue when Schmidt and his partner, Police Officer Bryan Cregan ("Cregan"), patrolling in uniform in an unmarked police car, got behind the cab and observed Smith, a male passenger, in the back. At approximately, 11:00 pm, they turned on their police lights and pulled the cab over in between 131st Street and 132nd Street. Cregan approached the cab on the driver's side and Schmidt approached on the passenger side. As they approached, Schmidt noticed Smith looking back numerous times and observed his "shoulders going back and forth." Schmidt believed Smith might have been attempting to "stick something in his waist or his pockets" and warned Cregan to be on alert. Cregan questioned the driver and learned that Smith entered the cab on Madison Avenue at 113th Street. Schmidt noted this location because a perpetrator of a livery cab robbery the previous evening had been picked up on Madison Avenue at 112th Street. Schmidt continued to observe Smith and saw Smith's right hand on his jacket pocket and that Smith was "anxious, nervous, breathing heavy." Schmidt then motioned to Cregan that he was going to have Smith step out of the car. Schmidt asked Smith to get out and Smith complied. Schmidt then asked Smith to remove his hand from his pockets and placed Smith's hands on top of the cab.

Schmidt, noticing a bulge in Smith's right pocket, pat him down, feeling "a hard object." Schmidt did not believe it to be a gun but determined that it could have been a knife. He asked Smith three times to explain what was in the pocket, and receiving no answer, reached into the pocket and removed a package containing just under two ounces of densely packed powdered cocaine, which was hard to the touch. Upon such discovery Smith was placed under arrest.

CONCLUSIONS OF LAW.

A vehicle stopped as a result of a roving patrol or a fixed checkpoint qualifies as a seizure within the meaning of the Fourth Amendment to the United States Constitution. Delaware v. Prouse, 440 US 648 (1979); U.S. v. Brignoni-Ponce, 422 US 873 (1975); Matter of Muhammed F., 94 NY2d 136 (1999); People v. Scott, 63 NY2d 518 (1984). In determining the reasonableness of such a seizure, the New York Court of Appeals has adopted the balancing test adopted by the U. S. Supreme Court in Brown v. Texas, 443 U.S. 47 (1983), which weighs "the public interest [advanced by the seizure against] the individual's right to personal security free from [*3]arbitrary interference by law officers." Brignoni-Ponce, supra at 878 (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)). See also Matter of Muhammed F., supra at 142. The Court looked at three factors: "[1] the gravity of the public concerns served by the seizure, [2] the degree to which the seizure advances the public interest, and [3] the severity of the interference with individual liberty" Id., (quoting Brown, supra at 50-51) (alteration in original).

In evaluating the first factor, the U.S. Supreme Court has held that the police cannot, absent some basis for individualized suspicion, seize any vehicle for the purpose of general crime prevention. City of Indianapolis v. Edmond, 531 US 32 (2000). See also People v. Jackson, 99 NY2d 125 (2002). In considering the effectiveness of the seizure in advancing the public interest, the Supreme Court has emphasized that this factor "was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). Rather, "it is sufficient for a court to determine that there is some 'empirical data' demonstrating the effectiveness" of the suspicionless stops employed by law enforcement. Muhammed F., supra at 145 (quoting Sitz, supra at 453). With regard to the final factor, interference with individual liberty, courts have emphasized that any suspicionless stop "must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers," Brown, supra at 51; see also People v. Spencer, 84 NY2d 749 (1995), to protect individuals from "arbitrary invasions solely at the unfettered discretion of officers in the field." Brown, supra at 51.

Both the U.S. Supreme Court and the New York Court of Appeals apply stricter scrutiny to roving patrols than to fixed checkpoints. For instance, in U. S. v. Brignoni-Ponce, supra at 882, the U.S. Supreme Court found a random, suspicionless roving patrol by U.S. Border Patrol officers to determine the citizenship or immigration status of the vehicle's occupants to be unconstitutional. Although they found that the roving patrol did serve a valid interest in preventing "the illegal entry of aliens at the Mexican border," they disallowed its use because the suspicionless patrol would affect "a large volume of legitimate traffic" in the metropolitan areas near the Mexican border and "would subject the residents of these...areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers." Id.

By contrast, in U. S. v. Martinez-Fuerte, 428 U.S. 543 (1974) , the U.S. Supreme Court upheld the use of a fixed checkpoint operated by border patrol agents detaining northbound vehicles on a major highway approximately sixty miles from [*4]the border. The Court noted that although a fixed checkpoint might involve the same questioning and brief visual inspection as a random roving patrol stop, "[t]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop." Id. at 558. The Court also noted that fixed checkpoints generally involve "less discretionary enforcement activity" on the part of individual officers because "[t]he location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources." Id. at 559.

The New York Court of Appeals has also noted that "[s]uspicionless patrol stops are suspect as a general matter because of both their elevated potential intrusiveness and their greater opportunities for the unlimited exercise of discretion by police." In the Matter of Muhammed F., supra at 145-465. In Muhammed F., the Court struck down the use of a roving patrol where plainclothes officers in unmarked cars stopped livery cabs in certain high-crime neighborhoods as part of the Taxi-Livery Task Force to address the "high incidence of violent crimes against cab drivers." Id. at 140. There was no evidence of guidelines or standard in Muhammed F. as to how the taxi stops were to proceed and "[w]hether the officers stopped every cab, or every second, third of fifth taxi was not based on a fixed format, but varied, depending on circumstances seen and acted upon solely by officers in the field."[FN2] Id. at 140-141. The Court further noted that many of these stops were "unjustifiably intrusive, both objectively and subjectively." Objectively, the stops were intrusive because officers routinely ordered passengers out of the car while officers searched around and under the seats. Subjectively, the use of a "single, unmarked police car operated by non-uniformed officers" late at night in a high-crime neighborhood meant that innocent passengers might not have any knowledge of the officers' authority and might fear they were the victims of a mugging or carjacking. Id. at 147.

The Court of Appeals refused to invalidate all suspicionless roving patrol stops, stating "The Supreme Court has not adopted a per se rule banning all such stops and requiring a fixed checkpoint or roadblock in all cases." Id. at 145. Instead, the Court reaffirmed its position that each case requires a court examine "whether a systemized non-arbitrary method" was employed to accomplish the stops and conduct "a particularized inquiry into the reasonableness of the stops" under the Brown v. Texas analysis. Id. at 146. [*5]

Here, this Court must decide under the facts of this case whether the use of the roving patrol which resulted in Smith's arrest constituted a reasonable seizure conducted pursuant to explicit, neutral limitations on officer discretion. For the following reasons, this Court holds that the roving patrol met such standard.

The patrol here was designed to combat specific, current and violent crimes against an identifiable class of victims and therefore undeniably furthers a valid public interest. See, e.g., Muhammed F., supra at 146 (acknowledging "the magnitude of the governmental interest in protecting victim-prone taxicab drivers late at night on urban streets from a crime wave"). Schmidt ordered the use of the roving patrol based on the Pattern Sheet derived from police statistics compiled in the ordinary course, identifying a pattern of robberies in a small area, all involving male passengers in livery cabs. In the previous twenty-four hours, two robberies, both involving handguns, had occurred within blocks of Madison Avenue and 131st Street. This series of violent attacks represents exactly the kind of "immediate, vehicle-bound threat to life and limb" against which the U.S. Supreme Court has authorized the use of suspicionless stops. Edmond, supra at 43.

Under the second Brown factor, the People must put forth "some empirical data demonstrating the effectiveness of the means chosen by law enforcement." Muhammed F., supra at 145. Here, the People have submitted evidence that the police were faced with a particular, serious and immediate problem, viz: multiple violent robberies occurring over a two week period. The pattern of robberies is demonstrated by the Pattern Sheet and Schmidt believed the roving patrol would constitute an effective means of combating them. Here, given the limited duration of the patrol and the specificity of its target, detailed empirical data probably cannot be produced. Nonetheless, the existence of the Pattern Sheet and Schmidt's credible testimony are sufficient for this Court to find that the police reasonably believed a traditional fixed checkpoint would not have effectively addressed this particular crime problem. Thus, unlike in Muhammed F., the People here have presented sufficient credible evidence that "circumstances did not permit any meaningful utilization of [such] traditional investigative procedures." Muhammed F., supra at 147 (citing People v. John BB., 56 NY2d 482, 488 (1982).

The last prong of the Brown balancing test addresses the intrusiveness of the stop and the severity of the interference with individual liberty. This Court finds the stops here were not unjustifiably intrusive. Objectively, the roving patrol was sufficiently limited in both duration (evening hours), scope of targets (only a narrow class of vehicles containing passengers fitting the description of the perpetrators of the recent specific violent crimes) and limited to a specific small area (where the prior [*6]crimes occurred). Unlike the patrol in Muhammed F., supra at 140, where certain entire neighborhoods were regularly targeted as part of a general task force combating a higher incidence of cab robberies, here the patrol was limited to a far more limited area in response to an unusual recent spate of criminal activity concentrated in such area. The patrol targeted only livery cabs carrying male passengers located in the area where the crimes had most recently occurred. Moreover, unlike Muhammed F., supra at 147, there was no evidence here to show that the stops "routinely involv[ed] a request or direction that...passengers step out of the cab while the officers searched it." (Smith was only ordered out of the cab when his observable actions raised further suspicion). The officers also appropriately limited any subjective intrusion caused by the patrol. In Muhammed F., officers in unmarked cars stopped cabs at night in a high crime neighborhood "without any visible signs of officers' authority." Concern over such activity is absent here. The officers here were in uniform and turned on the lights atop their unmarked car when they stopped the cab. Cab passengers should reasonably have been alerted that it was the police who had stopped the cab. This police technique should have sufficiently "provide[d] assurance that this was a police operation employing a uniform system for stopping cars." Id. (citing People v. Scott, supra, 63 NY2d at 527) (internal quotations omitted).

The patrol here was also conducted under sufficient "explicit, neutral limitations" on individual officer discretion. See, e.g., Brignoni-Ponce, supra at 882. First, the Pattern Sheet detailing the series of crimes came through police channels and were not Schmidt's product. The patrols were limited to those portions of the few streets in which the robberies were occurring and the police were expressly instructed not to stop cabs outside of such zone. Schmidt distributed photocopies of the Pattern Sheet and distributed it to his platoon at roll call. Further, Schmidt's orders to only stop livery cabs carrying male passengers when not otherwise responding to radio calls sufficiently limited the ability of individual officers to exercise discretion with regard to what vehicles were stopped. These instructions specifically recognize that limited manpower cannot stop every cab in densely populated area while simultaneously preventing officers from choosing vehicles at random.

All defendant's cases cited on this issue are distinguishable. In People v. Rosario, 160 Misc 2d 1081 (Sup. Ct. Bronx. Co. 1994), officers were instructed to pull over "every third cab or so" along a busy Bronx roadway. The court found this instruction "inherently arbitrary" because it was "impossible to carry out" and officers had no choice but "to rely on other less uniform and more subjective factors." Id. at 1084. Here, Schmidt's orders were specifically tailored to avoid this result. In People v. Genn, 144 Misc 2d 596 (Sup. Ct., Bronx Co., 1989), the court struck down a roving [*7]patrol in which the officers were told on each tour of duty "to stop two livery cabs on each shift unless they were too busy to do so" and were given unfettered discretion in choosing which cabs would be stopped. These stops were also for general safety and not in response to any particular crime.[FN3] Here, the officers had considerably less discretion; they were to continuously stop livery cabs at all times when not on radio calls and could not elect which cabs they would stop and which they would not. Similarly, in People v. Poteat, 135 Misc 2d 593 (1987), officers were instructed to randomly stop any two cabs with passengers per shift in order to "reduce the number of cab robberies in The Bronx" and in People v. Mirin, 280 AD2d 495 (2001), a single officer, on his own initiative and without any instructions from a commanding officer, decided to stop every third cab to conduct "safety checks" without any evidence of a particular threat. Here, again the officers had no discretion in choosing which cabs to stop and were responding to a specific and immediate violent crimes.

Balancing these factors, the stop of the cab in which Smith was found constituted a reasonable seizure conducted pursuant to sufficient limitations on the discretion of officers in the field.

Because the initial stop of the vehicle was valid, Smith's subsequent removal from the cab, search of his jacket pocket and his arrest were conducted lawfully. Under the totality of the circumstances, Schmidt acted reasonably in removing Smith from the cab when he noticed Smith's furtive movements immediately upon pulling over the cab, learned that Smith entered the cab very close to where perpetrators of a robbery the previous evening had boarded a cab, and observed Smith's anxious and nervous behavior and heavy breathing and his hand on his jacket pocket.

Any inquiry into the propriety of police conduct must weigh the degree of intrusion which it entails against the precipitating and attending circumstances out of which the encounter arose. People v. Salaman, 71 NY2d 869 (1988); People v. DeBour, 40 NY2d 210 (1976); People v. Alvarez, 308 AD2d 184 (1st Dept. 2003). The Court must focus on whether such conduct was reasonable in view of the totality of the circumstances. People v. Batista, 88 NY2d 650, 653 (1996); Alvarez, supra at 187.

Police officers face an inordinate risk when approaching a person seated in an automobile. Pennsylvania v. Mimms, 434 US 106 (1977); People v. Robinson, 74 NY2d 773 (1989), cert denied 493 US 966 (1989); People v. Hensen, 21 AD3d 172, [*8]175 (1st Dept. 2005). Officers may therefore direct a driver to exit his vehicle out of concern for their safety "even though they lack any particularized reason for believing the driver possesses a weapon." Alvarez, supra at 187. Such an intrusion "has been found to be de minimis with regard to the privacy interests protected by the Fourth Amendment to the United States Constitution." Id. (citing People v. Thomas, 275 AD2d 276 (2000), lv denied 95 NY2d 939 (2000)). This same reasoning is applied with equal force to passengers because the "same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger." Thomas, supra at 278 (quoting Maryland v. Wilson, 519 US 408 (1997)).

Here, Schmidt's actions in ordering Smith out of the cab and instructing him to remove his hands from his pockets were reasonable under the totality of the circumstances under this standard. Although no single factor of Smith's behavior individually may have sufficed to meet this standard, the combination of these factors, combined with the fact that roadside stops have been recognized by both state and federal courts as "fraught with potential danger to police officers" support Schmidt's decision to order Smith out of the car and, in totality, justify Schmidt's suspicion that Smith might have been concealing a weapon. Hensen, supra at 176; Alvarez, supra at 188.

Outside of the cab, Schmidt asked Smith to remove his hands from his pocket, which Smith did, whereupon Schmidt noticed a bulge in Smith's pocket and patted the outside of the pocket, feeling a hard object. Schmidt did not immediately reach into Smith's pocket but rather asked Smith three times what was in his pocket. Only after receiving no answers to all three inquiries did Schmidt reach into Smith's pocket and retrieve what turned out to be nearly two ounces of tightly packed powdered cocaine.

All of these circumstances could have "reasonably alerted" Schmidt "to the possibility of danger to [him]self [or his] fellow officer," thereby authorizing Smith's removal from the cab and a brief frisk for weapons. People v. Rivas, 265 AD2d 235 (1st Dept, 1999). Further, although Smith argues that no officer could mistake a densely packed bag of cocaine for a weapon, it is not for this Court to second guess the belief of an experienced officer in the field whose testimony it has found credible. Under all of the aforementioned circumstances, once Schmidt felt a hard object which he testified might have been a "folded up knife," he was justified in reaching into Smith's pocket. Matter of Kayode A., 236 AD2d 214 (1st Dept. 1997).

The remainder of Smith's contentions are pro forma and are without merit.

Smith's motion is therefore denied in its entirety.

This is the Decision and Order of the Court. [*9]

DATED:JUNE 23, 2006

NEW YORK, NEW YORK

Hon. Lewis Bart Stone

Justice of the Supreme Court Footnotes

Footnote 1: Where there is a pattern of crimes in a small area, over a short period of time, it is not unreasonable to believe that the perpetrators may well try again to repeat such activity.

Footnote 2: The Court noted that there were no "written" guidelines, although on analysis, the only difference between written and oral guidelines is a question of proving whether there were, in fact, guidelines.

Footnote 3: In balancing considerations, "general safety" is no longer a valid public interest, Edmond, supra, at 43, and is far less important than responding to a specific recent pattern of violent armed robberies in a narrowly circumscribed area.