People v. Sunley

Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: Defendant was convicted of criminal possession of a stolen credit card. He contends on appeal that the court erred in refusing to suppress the credit card and statements made to the police, which he argues were the fruit of an unlawful automobile stop. We agree.

Defendant was seized when the automobile was stopped (see, Delaware v Prouse, 440 US 648; People v Sobotker, 43 NY2d 559). In order to justify the stop, the police needed reasonable suspicion, based on specific and articulable facts, that defendant had committed a crime (see, People v Cantor, 36 NY2d 106, 112-113; People v Ingle, 36 NY2d 413, 418, 420).

The hearing court erred in concluding that the police action “was not an arrest which requires a basis of probable cause 'but a permissible incident of a lawful stop’ ” quoting People v Hicks (68 NY2d 234, 239). That conclusion merely begs the critical question whether the stop was lawful. Hicks was concerned with the propriety of a limited detention following a lawful stop. The stop in Hicks clearly was proper because it was based on a police radio report that a robbery had occurred at a nearby factory and contained a detailed description of the suspects and the car in which they were riding. The information possessed by the police in the instant case was significantly weaker and less reliable and is insufficient to provide such reasonable suspicion (see, People v Hoglen, 162 AD2d 1036; People v Rivers, 129 AD2d 983, 984).

The police had seen four people in a car parked at North-town Plaza far from the stores. One occupant got out and walked toward a jewelry store, looked in and kept walking. She returned to the car and a second occupant, a male, got out and went into the jewelry store. Because that person kept looking over his shoulder, the police considered his behavior suspicious and a plainclothes police officer entered the store to observe him. The clerk was occupied with defendant, an apparent customer. After defendant left, the officer asked the clerk about him and was told that he had tried to buy an $800 ring but did not want to wait to have it sized, a fact she considered unusual. She also said that something went wrong with defendant’s American Express authorization and that he left to obtain more identification from his car. The police observed defendant get into the parked car they had seen earlier, which then contained five people, and the car left the plaza.

While the police followed the car they radioed the dispatcher to find out from the store clerk whether any merchandise had been purchased. They were told that no purchase was made because the charge was not authorized by American Express after defendant was unable to answer some personal questions. The police were told the name on the American Express card.

With this information, and suspecting the possibility of a stolen credit card, the police stopped the car in which defendant was a passenger and questioned the occupants. The propriety of the stop must, of course, be determined based on what the police knew then and not on information learned later.

Denial of credit card authorization occurs for a variety of reasons, many of them susceptible of innocent interpretation. Failure to have a ring sized and failure to return with further identification are subject to innocent interpretation (see, People v Carrasquillo, 54 NY2d 248, 252; People v De Bour, 40 NY2d 210, 216-217; People v Corrado, 22 NY2d 308). The police did not know defendant’s name when they made the stop, did not know whether it was the same as that appearing on the card, and had not yet determined that the person whose name was on the card had had his wallet stolen. The police cannot justify a stop based upon vague and unparticularized hunches (see, People v Cantor, supra, at 113) and that is all the police possessed here when they stopped the vehicle. Thus, the seizure of defendant was unlawful and the fruits thereof must be suppressed and the indictment dismissed (see, People v Cantor, supra, at 114; People v Strassner, 142 AD2d 954, 955).

All concur, except Callahan, J. P., and Doerr, J., who dissent and vote to affirm, in the following Memorandum.