Criminal Defense - Suppression of Gun

Police are allowed to interact with citizens from on day to day encounters. Whether buying a cup of coffee or saying hello, police officers have that latitude to speak to people during their tour of duty. The question becomes when does the interaction from the police become one where the approach and, (what likely follows), the subsequent seizure and/or search becomes illegal.

The testimony at the suppression hearing established that at approximately 6:30 p.m. on January 18, 2013, a Buffalo police officer and his partner were conducting a traffic stop in the parking lot of a gas station when they observed defendant and two other men walking down the sidewalk on the other side of the street in a “higher crime area.” According to the officer, defendant was “staring” at him and his partner or at their marked patrol vehicle. Upon concluding the traffic stop, the officers crossed the street in their vehicle in order to drive alongside the men, the officer asked, “what’s up, guys?” from the rolled-down passenger window, and defendant then put his head down and started walking away at a faster pace. The officer thereafter observed defendant drop a gun holster to the ground and, after exiting the vehicle and picking up the holster, the officer saw defendant discard a handgun into nearby bushes. The officer’s partner positioned the patrol vehicle to cut off defendant’s path of travel, and defendant was eventually apprehended. Pp. 1-2 (external quotation marks omitted).

Here, the Defendant pled guilty to criminal possession of a weapon in the second degree. The appeal comes by way of the Defendant’s contention that the Supreme Court was wrong in refusing to suppress physical evidence, namely the handgun. The issue here is the police approach as described above.

As I was taught in law school and wonderfully articulated by the Court of Appeals in De Bour, there are four levels of Police Encounter:

In evaluating police conduct, a court “must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (People v. Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d 858; see People v. De Bour, 40 NY2d 210, 222-223). At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223), and “[t]he request may ‘involve[] basic, nonthreatening questions regarding, for instance, identity, address or destination’ ” (People v. Garcia, 20 NY3d 317, 322, quoting People v. Hollman, 79 NY2d 181, 185). Although the first level “sets a low bar for an initial encounter” (People v. Barksdale, 26 NY3d 139, 143), the Court of Appeals has nevertheless observed that, “[i]n determining the legality of an encounter under De Bour and Hollman, it has been crucial whether a nexus to [defendant’s] conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. The fact that an encounter occurred in a high crime vicinity, without more, has not passed De Bour and Hollman scrutiny” (People v. McIntosh, 96 NY2d 521, 526-527).

Pp. 3 (external quotation marks omitted and internal citations preserved). The Court finds that there was a level one approach. More than just saying hello, the police were requesting information when the officers concluded the traffic stop. Although a “nonthreatening” question, the police asked what’s up and the Court finds that this was not merely a “friendly greeting.” Indeed, the Court “agree[s] with defendant that the officers’ conduct was not justified from its inception…conclud[ing] that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one’s way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police.” Such conduct is insufficient to provide the police with the requisite “objective, credible reason, not necessarily indicative of criminality” to justify a level one encounter (Hollman, 79 NY2d at 184; see De Bour, 40 NY2d at 223; cf. e.g. Matter of Demitrus B., 89 AD3d 1421, 1421-1422; Matter of Steven McC., 304 AD2d 68, 72-73, lv denied 100 NY2d 511; People v. Randolph, 278 AD2d 52, 52, lv denied 96 NY2d 762).

The Court notes that being in a “high-crime” area is not enough. Police cannot just stop and inquire as to criminality. This is a basic right that us New Yorkers enjoy. If you are stopped by the Police you should exercise your right to remain silent (this requires you to speak – tell police you are demanding an attorney and remaining silent). Keep our number on hand and call us anytime should you need the assistance of an attorney. In this case, the illegality of the police encounter results “in the suppression of all evidence in support of the crime charged [and] the indictment…dismissed.” The matter is remitted to the Supreme Court for proceedings pursuant to CPL 470.45.

A word to the wise: If stopped by the Police, exercise your right to remain silent and demand an attorney – Call the Law Offices of Cory H. Morris. The case is People v. Savage, KA 13-02055, NYLJ 1202753517084, at *1 (App. Div., 4th, Decided March 25, 2016). Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)