People v. Kirby

OPINION OF THE COURT

Kooper, J.

At approximately 7:20 p.m. on March 23, 1983, Police Officers Connaughton and Hess responded to a radio transmission of a burglary in progress at 39 Lakeside Drive, Roosevelt, a residential home. The report gave no description of any suspect.

Upon their arrival at that address, the officers were informed by the woman who lived there that she had just arrived at home when she heard a loud crash, and suspecting that someone was inside her house, she went to a neighbor’s house and called the police. The woman never saw anyone, and therefore was unable to give the police any description of the burglar. Additionally, she had not yet determined if any of her belongings were missing.

A search of the premises did not reveal any burglars, but the officers did find that a rear window on the second floor was wide open; directly beneath it in the yard below was a smashed, umbrella-type clothespole and line. Initially suspecting that whoever had exited through the window would be hurt, Connaughton and Hess checked nearby yards and houses but found no one. They next drove around the neighborhood looking for suspects, but were again unsuccessful.

At this point, Officer Hess told his partner that he had seen the defendant, Willie Lee Kirby, in the vicinity of two recent burglaries. On March 10, 1983, Hess had found the defendant in a residence that he had assumed had been burglarized. On that occasion Hess brought the defendant to a neighboring house, where it was verified that the defendant had been in his own house when discovered by the police. As there was no evidence to connect the defendant to the burglary Hess was then investigating, the defendant was released. On March 17, 1983, during the course of another burglary investigation, Hess picked the defendant up and returned him to the scene of the crime to conduct a showup. No identification could be made, however, and the defendant was again released.

Solely on the strength of Hess’ suspicion of the defendant, he and Connaughton decided to seek him out in the investigation. At approximately 7:40 p.m. they found him walking down a street a few blocks from his home, and some 6 or 7 blocks from the crime scene. It was their testimony that the defendant was the first person they saw in that residential neighborhood that evening. The defendant began to cross in front of the officers’ car when he was about 25 or 30 feet away. According to the officers, he was at that time simultaneously attempting to stuff something under his coat.

Hess and Connaughton called the defendant over to them, and as he approached they could see a pair of jeans protruding from underneath his coat. The officers asked the defendant if the jeans were his, and he replied that they were. They then asked what was the brand name of the jeans, and defendant said that they were "Sergio Valente”. Although there was some disagreement in the officers’ testimony on this point, according to Officer Hess, they demanded of the defendant that he give them the jeans, and the defendant complied. Hess then discovered that the brand name of the jeans was "Gloria Vanderbilt”. They did not question the defendant about the discrepancy.

Hess then attempted to radio other officers at the crime scene to request assistance and to obtain a description of any stolen property. When he was unable to reach the other officers, Hess told the defendant that there had been a burglary in the neighborhood, and that he would have to return with them to the crime scene to see if the jeans could be identified. The defendant was patted down, and got in the back of the car. At the scene, the police learned that a pair of size five "Gloria Vanderbilt” jeans were missing, and the defendant was thereupon arrested and searched. The search revealed, among other things, a small quantity of marihuana.

The defendant was charged with burglary in the second degree, criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana, and moved, inter alia, to suppress the physical evidence recovered from him. The hearing court denied those branches of his motion which were to suppress physical evidence and statements made by him to the police on the ground that the initial stop of the defendant had been proper, and that the police had thereafter obtained probable cause justifying the detention and the transportation of the defendant back to the scene. The defendant subsequently pleaded guilty to burglary in the second degree to cover all the counts in the indictment.

We disagree with the conclusions of the hearing court, and reverse. We find these facts establish that a detentive stop of the defendant occurred here, and that this stop was improper because it was not supported by a "reasonable suspicion” that the defendant was committing, had committed, or was about to commit a crime (see, People v Cantor, 36 NY2d 106, 112; People v De Bour, 40 NY2d 210, 223; CPL 140.50; see also, United States v Hensley, 469 US 221). Reasonable suspicion requires that the police be able to articulate specific facts justifying the intrusion, and, of course, mere "[vjague or unparticularized hunches will not suffice” for this purpose (People v Cantor, supra at p 113). It need hardly be said that Officer Hess’ distrust of the defendant falls far short of the "articulable facts” necessary to establish a reasonable suspicion. Instead, it is clear that Hess’ distrust amounted to no more than the prohibited "vague or unparticularized hunch” which cannot justify a stop. Other than Hess’ hunch, the police had no information whatever tending to connect the defendant to the crime. Importantly, neither of the earlier confrontations which purportedly gave rise to Hess’ suspicion resulted in an arrest. The sole objective fact that the police had when they approached the defendant was that he appeared to be putting something under his coat. However, the mere act of stuffing something in one’s coat or one’s pockets while walking down a street cannot be viewed as anything more than innocuous or equivocal behavior, Under such circumstances, an individual may not be seized (People v De Bour, 40 NY2d 210, 216, supra; People v Richardson, 114 AD2d 473, 474). In this case, we note that at the time they stopped the defendant the officers were unaware that any property had been taken in the burglary, and therefore there was no basis for a conclusion that the defendant was attempting to conceal stolen goods.

In any event, it is abundantly clear that the officers did not stop the defendant solely or even primarily because his actions at that time had aroused their suspicions. The record established that the police were specifically seeking the defendant in connection with this burglary. When they found him they stopped him and searched him, as certainly there can be no other interpretation of the order to hand over the jeans. As the stop of the defendant was not based on articulable facts giving rise to a reasonable suspicion of criminal activity, it cannot be sustained.

We further find that this improper stop of the defendant escalated into an arrest based upon substantially less than probable cause when the police directed the defendant into the car in order to take him to the scene of the crime for a possible identification of the jeans as stolen property. The mere fact that the defendant was not told that he was under arrest at that point is, of course, not decisive as it is clear that had he attempted to leave, he would have been detained (see, Dunaway v New York, 442 US 200; People v Brnja, 50 NY2d 366, 372). Unquestionably, this was a coercive transportation rather than a consensual one. Moreover, a reasonable man in the defendant’s position would have believed himself in custody. For the third time in as many weeks, the defendant found himself confronted by the same officer who had twice before taken him into custody to be subjected to identifications. The same officer now stopped him again, caused him to surrender what he was carrying, and directed him to get in the car so that the officer could, again, take him to the scene of a burglary. Under these circumstances, there is no possible conclusion other than that the defendant was effectively under arrest at that point (see, e.g., People v Brnja, 50 NY2d 366, 372, supra; People v Lane, 102 AD2d 829, 830).

Probable cause necessary to support an arrest depends upon whether it appears more probable than not that a crime has been committed and that the defendant was its perpetrator, for conduct equally compatible with guilt or innocence will not be enough (see, People v Carrasquillo, 54 NY2d 248, 254). Here, while the police certainly had probable cause to believe that a crime had been committed, under the facts of this case, there was no cause to believe that this defendant had committed it (see, e.g., People v Lane, 102 AD2d 829, 830, supra). The mere fact that following the stop the defendant gave equivocal or contradictory answers, including his misidentification of the brand of jeans, cannot supply the requisite probable cause (see, e.g., People v Mosley, 68 NY2d 881; People v Carrasquillo, supra; People v Henley, 53 NY2d 403; People v Richardson, supra; cf. People v Moore, 47 NY2d 911).

Under the circumstances herein, the officers could not seize the defendant and transport him to the scene of the burglary to determine if he was in possession of any fruits thereof. The United States Supreme Court recently reaffirmed that the police cannot, "without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes * * * such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause” (Hayes v Florida, 470 US 811, 816; see also, Dunaway v New York, 442 US 200, supra). The fact that defendant was removed to the scene of the crime, not the police station, does not validate this detention without probable cause. Just this type of detention and transport was held invalid in People v Battaglia (56 NY2d 558). There, the police responded to a radio transmission of a burglary when a silent alarm was activated in a bowling alley. Arriving at the scene at approximately 5:00 a.m., the police saw the defendant returning to his car which was parked near the bowling alley. There were no other persons or vehicles in sight at the time and in response to questioning, the defendant, whose name the police recognized as that of a known burglar, stated that he had just been walking around. The defendant’s pockets were bulging and as he moved the police could hear the metallic sound of loose change jangling. Based on these observations, the police detained the defendant on suspicion of burglary and took him with them to the bowling alley, where, among other things, it was discovered that a pinball machine had been broken into. That detention, although brief, was held to be improper because it was not based upon probable cause to arrest (see also, People v Henley, 53 NY2d 403, supra).

A different situation entirely is presented by the limited detention in United States v Sharpe (470 US 675). There, the suspicious appearance of a pickup truck and a camper trailer which were traveling together caused the drug enforcement agents to keep them under observation for some time during which the behavior of the vehicles was sufficiently unusual to warrant a stop. Although the driver of the camper trailer did pull over as directed, the pickup truck fled the scene. It was eventually stopped, but some distance away from its companion vehicle. The truck’s detention for some 20 minutes until the agents questioning the persons in the camper could drive to its location was, therefore, the direct result of its driver’s elusive actions and was not improper.

Finally, in certain situations an immediate transport to the scene of the crime is permissible, although based on less than probable cause, in order to carry out a prompt identification procedure (see, e.g., People v Hicks, 68 NY2d 234 [removal to the crime scene for identification was permitted despite the lack of probable cause to arrest]). However, such reasoning cannot be used to justify this seizure and transport as there were no eyewitnesses to the crime and consequently there could be no identification. Rather, the defendant was taken by the police solely to determine if he could be connected to the crime, and, therefore, probable cause to arrest was required (see, People v Battaglia, 56 NY2d 558, supra; People v Henley, 53 NY2d 403, supra; see also, Hayes v Florida, 470 US 811, supra). Under these circumstances, the judgment appealed from must be reversed, those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to the police granted, and the case remitted to the County Court, Nassau County, for further proceedings.