People v McCullough

[*1] People v McCullough 2004 NY Slip Op 50361(U) Decided on May 6, 2004 County Court, Sullivan County, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2004
County Court, Sullivan County,

The People of the State of New York, Plaintiff,

against

Corey McCullough, Defendant.



Ind. No. 245-03



Sullivan Legal Aid Panel, Inc., 11 Bank St., Monticello, N.Y. 12701

By: Stephan Schick, Esq., of counsel, for defendant.

Stephen F. Lungen, Sullivan County District Attorney, Sullivan County

Courthouse, Monticello, N.Y. 12701 By: K. C. Garn, ADA, of counsel,

Attorney for plaintiff.

Frank J. LaBuda, J.

This matter comes on by defendant's motion to suppress his arrest and the fruits of the search thereto as part of his omnibus motion.

Pursuant to said omnibus motion a Mapp/Dunaway hearing was held regarding defendant's arrest and the subsequent search thereto. Memorandums of Law were submitted by the defendant and the People.

STATEMENT OF FACTS

On October 1, 2003, after removing a person for loitering from 15 Fulton Street in the Village of Monticello, Police Detective Thomas O'Connor, was again in front of 15 Fulton Street in his police vehicle with fellow Detective Dietz, when they observed the defendant walking from the back yard towards the front of 15 Fulton Street. The multi-family dwelling of 15 Fulton Street is known to police as an illicit drug trafficking area and also an area which has had numerous trespass complaints. In addition, the defendant is personally known to Detective O'Connor, for the past ten years, because [*2]O'Connor has previously arrested him for trespass (at 15 Fulton Street) and for various drug offenses and he is currently on parole.[FN1]

Defendant, seeing the police, turned and ran away. He jumped over the fence separating the rear of 15 Fulton Street and the property of 18 Garden Drive and fled from Detective O'Connor who gave chase on foot. 18 Garden Drive is a fenced parcel of property and private home owned by retired Monticello Police Officer Matthew Strong, who has complained numerous times to the police concerning people trespassing on his property and who put up the fence to stop the trespassing.

Detective O'Connor pursued the defendant over the fence of 18 Garden Drive, across Garden Drive, through another private residential yard, through a wooded area and toward a pond. During the course of this pursuit, Detective O'Connor observed the defendant throw away something like a plastic bag and used his hands to clear away something from the foot of a tree where the defendant finally stopped running.

The defendant was caught, arrested and searched. In addition, a search of the area where the detective observed the defendant discard something yielded 50 packages containing the narcotic drug cocaine and a small amount of marihuana. Defendant was charged with various drug offenses and criminal trespass upon the fenced property of 18 Garden Drive(Matthew Strong residence).

ARGUMENT

The defense argues that the defendant, at the time he was asked to stop by Detective O'Connor on the property of 15 Fulton Street, was not doing anything illegal or suspicious. In addition, Detective [*3]O'Connor was not in possession of any knowledge that a crime was being committed or was about to be committed and, thus, when defendant ran Detective O'Connor did not have reasonable suspicion or probable cause to pursue him or arrest him. Also, since the arrest lacked legal authority the search of the pond area by the tree and the defendant's person were also illegal. The arrest therefore must be suppressed and anything seized therefrom must also be suppressed as the fruit of the poisonous tree.

The defense cites People v Howard, 50 NY2d 583 (1980) and CPL §140.50 to support its argument.

The People, on the other hand, argue that Detective O'Connor had the right to pursue the defendant and the subsequent arrest and search and seizure were legal and based upon probable cause.

The People cite People v Tinort, 272 AD2d 206 (1st Dept., 2000); People v Thompson, 686 NYS2d 704 (1st Dept, 1999); People v Abad, 279 AD2d 358 (1st Dept, 2001); People v Babarcich, 166 AD2d 655 (2nd Dept., 1990) app den 76 NY2d 1019; People v Magwood, 260 AD2d 246 (1st Dept., 1999); In The Matter Of Troy F., 138 Ad2d 707 (2nd Dept., 1988).

ANALYSIS

Today the right of the police to approach a civilian and make contact, from merely an inquiry up to an arrest, is guided by Terry v Ohio, 392 US 1 (1968) and its progeny.

The New York Court of Appeals in People v De Bour, 40 NY2d 210 (1976) held that the police may approach a private citizen on the street for the purpose of requesting information. "The request for information must be supported by an objective reason, not necessarily indicative of criminality." People v Burrell, 156 Misc2d 272 (Sup. Ct., Kings Cty., 1992).

The De Bour court then outlined a four tier method to evaluate the propriety of police initiated encounters in their law enforcement duties. The four tier method was subsequently clarified in People v Hollman, 79 NY2d 181 (1992).

These tiers included:

1. to simply request information (must be supported by an objective and credible reason but does not need to give rise to an indication of criminality);

2. common law right of inquiry permits a greater intrusion than level one ( but must be [*4]supported by a founded suspicion that criminal activity is afoot);

3. a forcible stop, detainment and questioning (supported by a police officers reasonable suspicion that a person is or may become involved in a crime). Also codified in CPL §140.50;

4. an arrest (supported by police officer having probable cause to believe that a person has committed a crime).

See, People v De Bour, supra; People v Howard, 50 NY2d 583 (1980); People v Lueng, 68 NY2d 734 (1986); People v Hollman, supra; People v Burrell, supra.

However, in 1980 the Court of Appeals in People v Howard, supra held that a person upon being approached by the police has the right to remain silent, walk or even run away and such flight does not give the police the right to pursue said person without probable cause to believe a crime has been, is being or is about to be committed. Thus, the second tier of the De Bour method requires probable cause.

However, in 1986 the Court of Appeals in People v Leung, supra lowered the standard required to chase a fleeing person to "reasonable suspicion" and "must be considered to have overruled People v Howard, (supra) at least to the extent that it lowers the minimum standard for a chase of a suspect to "reasonable suspicion." People v Burrell, supra.

Thus, the defendant's unprovoked flight together with other indicia of possible criminal activity gives the police "reasonable suspicion" to pursue a suspect. People v Burrell, supra. "Reasonable suspicion" is defined as: "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminality is at hand." People v Cantor, 36 NY2d 106 (1975).

In the case at bar, the defendant was in the yard of 15 Fulton Street, a high narcotics trafficking and criminal activity area, and, upon seeing the Monticello police and before the police made any movement, the defendant fled by jumping a fence into the yard of private residence at 18 Garden Drive. That private residence has been the subject of numerous trespass complaints by its owner, retired Monticello Police Officer Matthew Strong, and is a fenced-in parcel of real property. Thus, Detective O'Connor was witnessing a crime in progress by the defendant's criminal trespass into Mr. Strong' backyard. Under De Bour and its progeny, the barrier between the policeman's authority to make reasonable inquiry or chase a fleeing citizen was hurdled by the defendant's unprovoked

flight, other indicia of potential criminal activity, i.e., high narcotics trafficking location, defendant's known participation in drug trafficking, and the police witnessing a trespass crime in progress.

The defendant is a prior convicted drug felon who has been arrested by the Monticello police for various drug charges and also for trespassing at the 15 Fulton Street location. He is also currently on parole for the sale of cocaine in Monticello [*5]

The premises known as 15 Fulton Street consists of an apartment building sitting on real property with a side and rear yard. The rear yard abuts the rear of 18 Garden Drive and is separated by a fence on the property of 18 Garden Drive.

CONCLUSION

This Court finds that, Detective O'Connor had the level one right to inquire and, given the defendant's background (prior drug convictions, prior trespassing, on parole and in a high drug area) the police also had a level two right to inquire.

However, the police never had the opportunity to inquire of the defendant because he fled immediately upon the seeing the police. The defendant's unprovoked flight at the sight of the detective, under the circumstances, gave the police the right, and indeed the duty, to make police inquiry of this defendant and chase him. In fleeing he was observed by the police in committing the crime of criminal trespass by jumping the fence and entering the fenced off private property at 18 Garden Drive.

At this point, the police had a level four right to pursue and arrest the defendant. The unprovoked flight of a person known to the police for criminal activity being within the sight of the two Monticello detectives in a drug ridden and high crime area provided Detective O'Connor with a founded suspicion the criminal activity is afoot. (emphasis added).

Detective O'Connor testified that during the pursuit the defendant threw away a package or packages into a pond. This package was recovered from the pond, before it sank, and contained fifty (50) packets of drugs. It is submitted that when the defendant threw away the cocaine he sank any reasonable expectation of privacy in that pond.

The defendant can not argue that the police had no right to secure, seize and search said packets as they were abandoned by the defendant. [*6]

Based upon the above, it is

ORDERED, that defendant's motion to suppress his arrest is denied, and it is further

ORDERED, that defendant's motion to suppress the search and seizure of the drugs as fruits of the arrest is denied.

This shall constitute the Decision and Order of this Court.

DATED: May 6, 2004

Monticello, N.Y.Hon. Frank J. LaBuda Sullivan County Court Judge and Surrogate

Decision Date: May 06, 2004 Footnotes

Footnote 1: Defendant is known to the Monticello police and Detective O'Connor for the following; 9/29/95 arrest for Robbery in the first degree and conviction of Petit Larceny; 10/16/97 arrest for Criminal Impersonation in the second degree and Unlawful Possession of Marihuana and convicted of U.P.M.; 4/12/98 arrested and convicted of U.P.M.; 1/1/99 Arrested and convicted of Resisting Arrest; 12/10/99 arrested for Criminal Use of Drug Paraphernalia and convicted of an attempt thereof; 6/22/00 arrested and convicted of Criminal Possession of a Controlled Substance in the fifth degree (cocaine) and sentenced to 28 months to 7 years in state prison on 5/24/02; 2/1/02 arrested for Criminal Possession of a Controlled Substance in the third degree and convicted of Criminal Possession of a Controlled Substance in the fifth degree and sentenced to 3 to 6 years in state prison.