People v Giles

[*1] People v Giles 2009 NY Slip Op 50609(U) [23 Misc 3d 1106(A)] Decided on April 7, 2009 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2009
Supreme Court, New York County

The People of the State of New York

against

Ellis Giles, Defendant.



2968/08



Robert Morgenthau, District Attorney, New York County (Ryan Connors of counsel) for the People.

Joseph Heinzmann, White Plains, NY, for the Defendant.

Daniel P. Conviser, J.

The Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Third Degree in violation of Penal Law § 220.16 (1), a class B felony; and one count of Criminal Possession of a Controlled Substance in the Fifth Degree in violation of Penal Law §220.06 (5), a class D felony. A hearing was conducted before this Court on February 9, 2009 to determine whether physical property seized from the person of the Defendant, specifically a quantity of crack cocaine and $80 of United States currency, is admissible against him at trial. The prosecution called one witness, Lieutenant Thomas O'Neill, to testify. The Court finds his testimony to be credible. The Defendant called no witnesses.

For the reasons stated below, Defendant's motion to suppress the crack cocaine and Unites States currency which were seized from him is granted in its entirety.

STATEMENT OF FACTS

Lieutenant Thomas O'Neill, a 28-year employee of the NYPD, testified that he is a Special Operations Lieutenant at the 32nd precinct, and that he was on duty in that capacity on June 12, 2008 with his partner Police Officer William Mullen. Lieutenant O'Neill stated that he was in uniform wearing a white short-sleeved shirt and black pants and that Officer Mullen was also in uniform wearing a blue short-sleeved shirt and black pants. Officer Mullen was the driver and Lieutenant O'Neill the passenger in an unmarked police car. At the time, Lieutenant O'Neill testified, he and his partner were on routine patrol and not involved in any specific investigation. Lieutenant O'Neill testified that he had made between 100-150 arrests and supervised thousands of others. He estimated that between 50-60% of the arrests he had been involved in were related to controlled substances. Lieutenant O'Neill also testified to having received special training in the recognition of narcotics-related activity. [*2]

Lieutenant O'Neill stated that on June 12, 2008 at approximately 10:30 p.m. while traveling northbound on Lenox Avenue he observed the Defendant in front of 560 Lenox Avenue between West 138th Street and West 139th Street in New York County. Lieutenant O'Neill said it was a clear night and the area was well-lit by street lights. The Defendant was observed from approximately 30 feet away by Lieutenant O"Neill to his right on the east side of Lenox Avenue speaking with a black female. The Defendant was facing away from the witness and the female was facing towards him. The witness testified: I observed the female make a motion towards the defendant. At that point, the defendant put his left hand in his left front pant pocket and pulled something out of his left front pant packet. . . It was a motion a gesturing motion as if she was going to hand him something. . . . At that point, he was about to hand the female whatever it was that was in his hand.

Lieutenant O'Neill acknowledged that he "couldn't see what, if anything" was in either the Defendant or the woman's hands at the time. He testified that Officer Mullen did not tell him that he had seen anything in the Defendant's or the woman's hands. He also testified at another point, apparently referring to the time that he first saw the Defendant, that he couldn't see either of his hands. He stated to his partner that "it looks like something is going on here at the corner." At this point, the female glanced up, looked towards the police vehicle, said something inaudible and started to walk. Lieutenant O'Neill testified that as his car approached the Defendant, the Defendant placed his left hand into his left front pant pocket. Lieutenant O'Neill and Officer Mullen exited the vehicle; Lieutenant O'Neill approached the Defendant while Officer Mullen approached the female.

The witness asked the Defendant what his business was and the Defendant did not respond to the question. The Defendant thrust his hands into his pockets. These actions were interpreted by Lieutenant O'Neill as "trying to distract me from what I thought I observed." Lieutenant O'Neill asked the Defendant what he had in his left hand.

Lieutenant O'Neill described the Defendant's demeanor as initially calm but said he became more agitated when Lieutenant O'Neill was "demanding that he remove his hands out of his pocket." Lieutenant O'Neill also testified that the Defendant was putting his hands in and out of his pockets. Lieutenant O'Neill demanded that the Defendant pull his hands out of his pockets. Lieutenant O'Neill repeatedly asked the Defendant what he had in his left hand and the Defendant didn't answer. The Lieutenant then said he needed to see what was in the Defendant's left hand. The Defendant stated: "I have nothing." The Defendant then pulled his left hand out of his left front pant pocket and said he had nothing but money and there was money in his hand. When the Defendant pulled his hand out of his pocket a reddish-pink tin of crack cocaine also fell to the sidewalk. Lieutenant O'Neill described the object as what appeared to be crack cocaine in a plastic baggy. When Lieutenant O'Neill observed the cocaine fall to the ground, he grabbed the Defendant's hand.

The witness testified that he had asked the Defendant to take his hands out of his pocket because he believed the Defendant was trying to distract him and also because "[i]nitially, I was concerned for my safety. I didn't know what he had in his pockets." In response to the question: "Had he [the Defendant] given you any reason to believe that he had a weapon", Lieutenant [*3]O'Neill answered "[n]ot particularly." At this point, the Defendant was handcuffed and searched and an additional 16 bags of cocaine were recovered from his left front pants pocket. $80 in United States currency was also recovered from the Defendant. The female who had been speaking with the Defendant was not apprehended. Lieutenant O'Neill testified that approximately 3-5 minutes passed between the time he first saw the Defendant and the time he arrested him.

At no point during his testimony did Lieutenant O'Neill indicate that the location where the arrest in this case occurred was a drug prone location or had been the subject of any other narcotics arrests or reported criminal incidents. At no point during his testimony did Lieutenant O'Neill indicate that he subjectively believed, prior to the time the cocaine came out of the Defendant's pockets, that the Defendant had been engaged in any narcotics related or criminal activity.

CONCLUSIONS OF LAW

In People v. DeBour, 40 NY2d 210 (1976) the Court of Appeals articulated its well-known four-tier test for assessing street encounters initiated by the police. The first level allows the police to request information from a civilian so long as there exists an objective, credible reason, not necessarily indicative of criminality, for doing so. The second level, the common-law right of inquiry, is more intrusive and requires a founded suspicion that criminal activity is afoot. The third level permits the police to forcibly stop and detain a civilian if there exists a reasonable suspicion that the person has committed, is committing or is about to commit a crime. The fourth level allows the police to arrest a civilian if there is probable cause to believe the person has committed a criminal offense.

Here it is clear that the initial observations made by Lieutenant O'Neill provided the requisite basis for allowing him to approach the Defendant and ask him questions pursuant to a level one inquiry. See People v. Giles, 223 AD2d 39 (1st Dept 1996), app. denied, 89 NY2d 864; People v. Jones, 250 AD2d 434 (1st Dept 1998), lv. denied, 92 NY2d 927. When those questions escalated into a more pointed interaction in which Lieutenant O'Neill ordered the Defendant to remove his hands from his pockets, the encounter became a level two inquiry, requiring a founded suspicion that criminal activity was afoot. See People v. Hollman, 79 NY2d 181 (1992); People v. Wilson, 201 AD2d 399 (1st Dept 1994). The key question here is whether, at the time Lieutenant O'Neill directed the Defendant to remove his hands from his pockets and the narcotics fell from the Defendant's hand, he had the founded suspicion which would justify this level of intrusion. Under the circumstances here, in the view of this Court, no such founded suspicion existed at that point in the encounter and Defendant's suppression motion must therefore be granted.

At the time Lieutenant O'Neill directed the Defendant to remove his hands from his pockets, two general facts were known to him. First, he had seen the Defendant and a woman talking and gesturing and making motions as if they were going to hand each other something. Upon being approached by the police, the woman walked away. Second, upon being approached and questioned by Lieutenant O'Neill, the Defendant proceeded to move his hands in and out of his pockets. The People here urge that the totality of this information created a founded suspicion that criminal activity was afoot, justifying a level two inquiry. [*4]

Cases which have evaluated similar encounters, obviously, rely upon the unique facts and circumstances of each case to determine whether the appropriate founded suspicion exists. Wilson, supra illustrates a case similar to that here where the Court found that a level two inquiry was not justified. There, the police found the Defendant in a "huddle" with two other persons in front of a known drug location. A direction by the police that the Defendant halt and take his hands out of his pockets was found not to be justified as no founded suspicion that criminal activity was afoot existed. Similarly in People v. Thompson, 2004 Slip Op 50611 (App Term, 2d Dept, June 9, 2004), the police observed what the court characterized as "some sort of exchange" between two persons on the sidewalk at a drug-prone location and demanded that the Defendant display to the officer what was in his hand. The Court held this intrusion was not justified as there was no furtive behavior or other factors which justified the intrusion.

On the other hand, in People v. Oppedisano, 176 AD2d 667 (1st Dept 1991), app. denied, 79 NY2d 1052 (1992) the conduct of the police was found to be justified in a situation bearing some resemblance to that here. There, the Defendant knocked on the door of an apartment where the police were executing a search warrant looking for narcotics. When an officer asked the Defendant who he was and what he was doing at the location, the Defendant did not answer and remained standing at the door with his hands in his pockets. When the officer directed the Defendant to take his hands out of his pockets, the Defendant responded by taking a step away. The Court held that when the officer did not receive a response to his request for basic information "in light of defendant's stance" the officer was justified in requesting that the Defendant remove his hands from his pockets. When the Defendant stepped away, the Court held that the police were justified in removing the Defendant's hands from his pockets. Police subsequently found two loaded guns on the Defendant's person. A critical factor in Oppedisano, however, which is not present here, is that the Defendant was seeking to enter a location where the police had probable cause to believe narcotics were present. Here, by contrast, the Defendant was engaging in a conversation on a public street with no evidence that the location where the conversation occurred had any connection to narcotics related activity.

Here, there was no evidence adduced at the hearing which indicated that the initial conversation and gestures between the Defendant and the unidentified woman he was talking to had any indicia of criminality. The Court also does not believe that the fact that the Defendant placed his hands in and out of his pockets under the circumstances existing here provided a founded suspicion that criminality was afoot. Furtive behavior on the part of a suspect, of course, is one factor which may be considered when determining the reasonableness of police conduct.

Here, however, much of the Defendant's agitated and nervous demeanor and his actions in taking his hands in and out of his pockets only apparently occurred when Lieutenant O'Neill unjustifiably escalated his permissible level one inquiry to a level two inquiry. The fact that a person may be agitated when an officer escalates a permissible level one inquiry to an impermissible level two inquiry cannot form the basis for a founded suspicion that criminality is afoot, justifying, on a retroactive basis, an escalation in the inquiry. See People v. Fields, 257 AD2d 387, 389 (1st Dept 1999) ("The fact that the defendant appeared to become nervous and began to sweat [when an inquiry was elevated from a permissible level one to an impermissible level two inquiry] did not provide a basis for a more elevated level of intrusion [from level one to [*5]level two] on the part of the officer.") Although the Defendant did not initially respond to Lieutenant O'Neill's question about what he had in his left hand, a Defendant faced with a level two inquiry has no obligation to respond to a police officer's questions. People v. Howard, 50 NY2d 583 (1980), cert. denied, 449 US 1023. When police action is taken it must be justified at its inception and reasonably related in scope to the circumstances which rendered its initiation permissible. People v. Erazo, 203 AD2d 82 (1st Dept 1994).

A police officer is also justified in asking a person to remove his hands from his pockets as a precautionary measure to assure the officer's safety. Matter of Anthony S., 181 AD2d 682 (2d Dept 1992), lv. denied, 80 NY2d 753. In People v. Oeller, 191 AD2d 355 (1st Dept 1993), affirmed, 82 NY2d 774, for example, the police saw the Defendant pass money for an item in an area which the officers knew was "rampant" with narcotics activity and believed they had witnessed a narcotics transaction. The officer testified that his training and experience gave him reason to believe that a person involved in a narcotics sale might also be carrying a gun and the Court found the officer was therefore justified in asking the Defendant to remove his hands from his coat pocket.

Here, however, in contrast, the record is devoid of any clear indication that a narcotics sale had taken place and likewise devoid of any particular reason why Lieutenant O'Neill might have believed the Defendant may have possessed a weapon. There was no bulge or other physical manifestation of a possible weapon, no report that the Defendant may have been armed and nothing in the surrounding circumstances to suggest the Defendant had a weapon. Lieutenant O'Neill himself testified that there was no particular reason to believe that the Defendant was armed. Under these circumstances, the direction to the Defendant to remove his hands from his pockets could not be justified as a necessary precautionary measure. See People v. Santiago, 64 AD2d 355, 361 (1st Dept 1978)("[M]ere placement of one's hand in one's pocket does not create a suspicion that an individual is armed.")

Two critical factors which have been present in many similar cases were not present here. First, Lieutenant O'Neill at no point indicated that he had approached the Defendant and questioned him because based on his training and experience, he believed that a narcotics transaction was in progress. Second, there was no testimony or evidence adduced at the hearing that the location where the encounter took place was a "drug-prone"or high crime area, that the police had received any reports of criminal activity in the area or that they were targeting or observing the area or the Defendant for any reason. In this case, had both of those pieces of evidence been present, in the Court's view, the encounter here may well have been justified.

For example, in People v. Chin, 25 AD3d 461 (1st Dept, 2006), lv. denied, 6 NY3d 846, a common-law right to inquire was held to exist in a case where the police observed hand-to-hand contact between two individuals after which one of the individuals placed his hand in his pocket and exhibited nervous behavior. In Chin, however, unlike the instant case, the transaction took place in the early morning hours on a deserted street in a drug-prone location and the police recognized what they believed to be a drug transaction. Similarly, in People v. Sylvain, 33 AD3d 330 (1st Dept 2006), lv. denied, 7 NY3d 904 a level two inquiry was found to be justified where the police actually saw an attempted exchange of "small objects" (unlike the mere gesturing which was present here) and the officer recognized the behavior as a possible drug transaction.

Nor does the Court believe it would be appropriate in this case to fill in the record, by [*6]assuming or concluding that Lieutenant O'Neill must have believed he was observing a narcotics transaction or by assuming that the location where the arrest took place is one which is prone to narcotics activity. As Defendant points out, had any such evidence been adduced at the hearing, the Defendant would have then had the opportunity to rebut that evidence, an opportunity not present here.

In evaluating whether police conduct in investigating a possible drug transaction is reasonable, it is of course well-settled that the fact that such conduct takes place in a "drug-prone location" may be considered as one factor justifying police conduct. See People v. Bronston, 68 NY2d 880 (1986). The use of this factor reflects the common-sense notion that the level of suspicion of an otherwise possibly innocuous activity may be increased where the activity takes place at a location where unlawful narcotics activity is known to be prevalent.

The application of this factor in suppression cases has also been subject to criticism in two respects. First, the parameters of what constitutes a "drug-prone location" for purposes of Fourth Amendment analysis have never been precisely defined, leaving the geographical boundries, quantum of required evidence, timeliness of other unlawful drug activity and other factors of uncertain application. See Kamins New York Search and Seizure Lexis, Nexus, 2008 Edition § 102 [3] [b]. The use of the "drug-prone location" or "high crime area" factor in Fourth Amendment analysis has also been criticized because it means that persons who live in, frequent or happen to be present in areas where narcotics or other criminal activity occurs may be seized, questioned or searched when they exhibit less indicia of criminality than persons who are not present in such areas. As Justice Fein outlined the problem in a 1986 case concerning, as here, an encounter on a spring evening at 10:00 P.M. between a citizen and the police in Harlem:

It may very well be possible that a random search of all passersby on the street in this particular neighborhood at this time of night would have yielded a lot of contraband. But the individual liberties in our Constitution are not based upon statistical probabilities. The constitutional protections against unwarranted intrusion by an agent of the State are not to be relaxed when an individual goes for a walk, or engages in otherwise innocent behavior, in a public area statistically known for a high incidence of crime. The 4th Amendment has never been so amended. People v. Cornelius 113 AD2d 666, 671 (1st Dept 1986).

The Court notes these criticisms not to argue that the "drug prone location" factor should not be used in Fourth Amendment analysis. But if this factor is to be considered, it should be supported by at least some evidence at a suppression hearing. The Court cannot simply assume that Lenox Avenue in the vicinity of 138th and 139th streets in Manhattan on June 12, 2008 was a drug-prone location and then assign weight to such an assumption in its Fourth Amendment analysis.

Since Lieutenant O'Neill conducted a level two inquiry without founded suspicion of criminality in asking the Defendant to take his hands out of his pockets, and since the drugs and money were recovered subsequent to the Defendant removing his hands from his pockets as directed by Lieutenant O'Neill, those items were recovered as a result of unlawful police action and cannot be introduced against him at trial. People v. Boodle, 47 NY2d 398 [1979], cert. denied, 444 US 969; People v. Wilson, 201 AD2d 399 [1st Dept 1994]).

ORDERED, the Defendant's motion to suppress physical evidence is granted in its [*7]entirety.

Dated: New York, New York________________________

April 7, 2009Daniel P. Conviser, A.J.S.C.