Citation Numbers： 113 A.D.2d 627, 497 N.Y.S.2d 8, 1986 N.Y. App. Div. LEXIS 49611
Judges： Fein, Kassal, Sullivan
Filed Date： 1/7/1986
Status： Precedential
Modified Date： 10/28/2024
OPINION OF THE COURT
The People appeal from an order which granted defendant’s motion to suppress a loaded .38 caliber revolver taken from defendant’s waistband.
The issue is whether the investigating officers were required to make any inquiry of defendant concerning his conduct prior to the search and seizure. The People’s only witness at the Mapp hearing was Police Officer Stephanie Sheffler, a three-year member of the New York City Police Department, who testified that on September 14, 1984 at approximately 4:30 a.m. she and her partner, who were on motor patrol, received a "radio run of a * * * 1031 burglary in progress”, at a roller disco located at 155th Street and Eighth Avenue in Manhattan. "The call called for a man on a fire escape, another man on the ground * * * The description stated one man had a red shirt and the one other wore dark clothing * * * Black males.” She further testified:
"Q: When you arrived what if anything did you observe?
"A: I observed one male black on the fire escape standing at the top it and one male black at with the red shirt standing in the doorway.”
As the dissent notes, the tapes of both the 911 call and the radio transmission were played at the hearing. The dissent suggests that the persons described were reported to be "up on the roof there, on a fire escape.” However, this was the version transmitted by the desk officer, who was not a witness to the events. As noted, the officer’s testimony was that the report placed the man in dark clothing at the top of the fire escape and the man with the red top at the doorway. This was consistent with the anonymous call received by the police.
Although she had never been inside the one-story building, Officer Sheffler knew that it contained a social club. The officers reached the scene within minutes. Officer Sheffler observed defendant standing at the top of the single-story 12-foot high fire escape on the alleyway side of the building. He was described as wearing an open "denim jacket and jeans, dark blue.”
Officer Sheffler stepped out of the patrol car with her service revolver drawn and approached defendant, while her partner proceeded in similar fashion toward the other individual. Officer Sheffler ordered defendant to come down from the fire escape at gunpoint. He hesitated, asking if he could descend by way of an interior stairway. She testified that defendant, after repeated orders to come down the fire escape, descended and was immediately placed "against the wall and frisked”. She admitted that no questions were asked and conceded that there was nothing in defendant’s hands, and that he made no movement, furtive or otherwise, during the period that she had him under observation. She testified:
"Q: And did he walk down casually?
"A: It’s impossible to walk casually down the—
"Q: Did he bolt down the steps?
"A: He came down very carefully because it’s a dangerous thing to move down.
"Q: In your opinion, that you should be careful when you come down those steps because he might fall or injure yourself?
"A: No, I am saying that that’s how he came down, cautiously, holding on because he was on the side, he was on the fire escape.”
The dissent suggests that defendant’s delay in coming down the fire escape indicated some improper motive or behavior. The record does not support this conclusion. As noted, the police officer herself stated that it was "dangerous” to descend and that she kept defendant under observation at gunpoint throughout.
Defendant testified:
"I said I can’t come down because the fire escape is broke. Let me come around and I’ll come down the stairs.
"She told me to climb down. I said okay. So I started to climbing down, even though the fire escape was broke. I was taking my time, carefully, so I don’t fall.
"The fire escape—when you step on the fire escape, it leads*630 straight to the ground. And then she handcuffed me, put me up against the wall, and that was it.”
The officer testified:
“Q: When he got to the ground what did you do?
"A: I placed him against the wall and frisked him.”
She further testified:
"Q: Did you have a conversation with Mr.—let me put it this way: Before or after they arrested him?
“A: After.”
It is undisputed that the officer made no inquiry of defendant before placing him against the wall.
Defendant testified:
“Q: Did she pat you down, as she testified?
"A: She pat me down one time when she had me handcuffed and put me up against the wall. Then she pulled me from the wall, and then she pat. me down again, and that’s when she found the weapon.”
She never asked him questions as to what he was doing there.
The suppression Judge found that defendant had been handcuffed before the officer patted him down. The dissent rejects that finding on the ground of credibility. However, the basis for the dissent’s conclusion does not appear. The portion of the officer’s testimony quoted in the dissent demonstrates only that although Officer Sheffler testified several times that she placed defendant against the wall, she was never questioned concerning whether she handcuffed defendant before she patted him down. The sole direct testimony in the record on this question is that of defendant. Hence, support is lacking for the dissent’s conclusion that defendant lied. There is no warrant for rejecting the finding of the suppression Justice. However, this is not dispositive. It is undisputed that there was a gunpoint search and arrest of defendant before any inquiry was made as to the reason for or basis of his presence at the top of the fire escape. The officer proceeded solely on the basis of an anonymous report of two men on a fire escape, alleged to be engaged in a “robbery”, transmitted as a “burglary in progress”. When the officers arrived, what they observed confirmed the presence of defendant and another at the premises. It did not confirm the anonymous caller’s characterization of such presence as criminal. No conduct on the part of defendant or the other man gave any appearance of criminality, unless we are to conclude that a black man, standing on a
Nothing observed by the officers indicated the necessity for an arrest and frisk or search before any inquiry was made. Obviously, the officers had a reasonable basis for proceeding to the scene to check whether a "robbery” or burglary was in progress, on the basis of the information supplied in the radio run. However, when the officers arrived there was no activity on the part of the defendant suggesting criminal behavior. Defendant made no furtive or suspect movements which would instill a fear for safety. Defendant did as he was told, at gunpoint, after first questioning the necessity of descending on an admittedly "rickety and dangerous” fire escape.
It is notable that the other identifiable suspect was apparently not questioned, or if questioned, was released. If, indeed, there was a burglary in progress, he, too, was subject to arrest.
Nothing in the record even suggests that defendant did not actually have a legitimate right to be on the premises. Defendant’s claim of employment at the social club was not questioned, and no inquiry was made with respect thereto. Moreover, there was no proof that the entire building was closed for the evening. Defendant testified that people came out of the club while the arrest was in progress, and that the other officer went into the club. However, the man in the "red top” was not arrested. Thus, it is clear that however accurate the radio run may have been as to the presence of the two individuals on the scene, there was not a shred of evidence of criminal activity once the officers arrived.
The People now suggest that at least there was a trespass. However, this would require some evidence, totally lacking here, that defendant had no right to be on the roof, or at the top of the fire escape of the premises. Thus, People v Elwell (50 NY2d 231) and People v Rodriguez (52 NY2d 483), both cited by the dissent, cut the other way. The police observations on the scene confirmed the presence of defendant, but there was no evidence of criminal activity. As stated in Elwell (50 NY2d, at pp 234-235), "We affirm the Appellate Division’s holding that for police observation to constitute the verification that will establish probable cause and permit a warrant-less search or arrest predicated upon data from an informer
The officer’s own observations did not indicate that a crime was being or had been committed. The conduct observed was " 'too equivocal’ ” (People v McRay, 51 NY2d 594, 602; People v Russell, 34 NY2d 261, 264). There was no cause to believe that defendant was engaged in the commission of a crime. Hence, Officer Sheffler could not lawfully arrest defendant and search him as an incident thereto (People v Stokes, 57 AD2d 797). Once the officers were upon the scene, no identifiable criminal activity was observed (cf. People v McRay, supra; People v Landy, 59 NY2d 369, 375).
Although the combination of the information on the radio run and defendant’s presence at the scene created a basis for inquiry, nothing observed permitted further action such as a frisk, search or arrest.
People v Mack (26 NY2d 311), relied on by the dissent, is not to the contrary. There, a uniformed officer had informed the arresting officer, 15 minutes before the arrest, that three burglaries had been committed in the area, and gave descriptions of the suspects. One of the descriptions fit the defendant. In that case the arresting officer was informed that the burglaries had been committed on that day. The description given for one suspect included that he was six feet tall and wore a camel’s hair coat and a brown hat. Such clothing was worn by the defendant who fit the description when arrested. Plainly the circumstances in Mack were different and authorized a greater police intrusion than here present. There, three burglaries had been committed. Here, no evidence of criminal activity was ever developed.
It is well settled that the predicate for police action and the level of intrusion warranted depends in each case upon the information furnished to the police combined with police observations at the scene (People v Stewart, 41 NY2d 65; People v Stroller, 42 NY2d 1052). Here, there was no observed
The principle is stated in De Bour (40 NY2d, at p 216): "We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause”.
It is still not a crime to smoke a cigarette on a rooftop of a commercial building, even at 4:30 a.m. Nor does the anonymous caller’s characterization of such behavior as a "robbery” or a burglary make it so (People v Elwell, 50 NY2d, at pp 236-237). The officer’s observations merely confirmed defendant’s presence at the top of the fire escape, not that he was engaged in criminal activity.
The dissent and the People rely heavily on the assertion that these events occurred in a "high crime area”. Much has been written about patterns of behavior of persons engaged in narcotics transactions in "high crime” areas as providing a foundation for a reasonable conclusion that a sale is in progress when such conduct is observed. However, it is surely questionable whether the fact that events occur in a high crime area justifies a greater level of intrusion than is warranted by the same behavior in other areas (see, People v McRay, 51 NY2d, at p 606 [Fuchsberg, J., concurring], supra; People v Le Grand, 110 AD2d 539, 542-545 [Fein, J., concurring]).
On the evidence in this case, there was neither reasonable suspicion warranting a frisk, nor probable cause justifying a
As stated in People v Cantor (36 NY2d 106, 113, 112-113), "To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (Terry v. Ohio, 392 U. S. 1 * * * Wong Sun v. United States, 371 U. S. 471, 479). Nor will good faith on the part of the police be enough to validate an illegal interference with an individual (e.g., Terry v. Ohio, supra; Henry v. United States, 361 U. S. 98 * * * Hill v. California, 401 U. S. 797; Smith v. County of Nassau, 34 N Y 2d 18).”
"Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.”
As stated in People v Russ (61 NY2d 693, 695), "No inquiry was made of defendant so she neither refused to answer nor answered evasively (see People v Klass, 55 NY2d 821); no suspicious bulge was perceived in her clothing (cf. People v De Bour, 40 NY2d 210, 213); no furtive movements were made by her (see People v Benjamin, 51 NY2d 267 * * * )”.
On this record there is no evidence of any investigation as to whether there was a burglary. The record points the other way. Nor is there any evidence contradicting defendant’s claim that he was an employee of the social club.
There was insufficient here to justify an arrest or a frisk without an initial inquiry.
Accordingly, the order, Supreme Court, New York County (Kristin Booth Glen, J.), entered February 14, 1985 granting defendant’s motion to suppress the loaded .38 caliber revolver recovered in his waistband, should be affirmed.