Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered March 19, 2008, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 11/2 to 3 years, reversed, on the law and the facts, the motion to suppress physical evidence and statements granted, the plea vacated, and the matter remanded for further proceedings.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Sweeny, J.P., Buckley, Catterson, Acosta, Freedman, JJ.
At a pretrial hearing on defendant's motion to suppress, arresting police officer Peralta testified that: on August 26, 2007, he and his partner received a radio dispatch in their patrol car that a 911 call had been received "about a dispute with a knife" at a location at St. Nicholas Avenue in Manhattan. The officers had no description of the alleged perpetrator and were not told the identity of the 911 caller.
When the officers arrived at the location, Peralta observed two men standing in front of a store; they pointed at defendant, who was walking away from them down the middle of the street, and said, "That's him, that's him." Without first speaking to the men, the officers approached defendant and attempted to apprehend him, but he resisted and fled into a nearby apartment building.
The officers were admitted into the building and directed to an apartment, whose front door was latched and could only be opened a few inches. After Peralta's partner reached inside to unlatch the door and defendant tried to bar his entry, the officers sprayed Mace on defendant and kicked the door open. Defendant exited the apartment through a window and hid in the basement of the building, where the officers arrested and searched him. The officers found a gravity knife and an imitation revolver on defendant's person that they had not observed before.
Later that evening, Peralta spoke to the men he had seen standing in front of the store, who it turned out were its owners. They now told Peralta, for the first time, that defendant had stolen lottery tickets from the store, and then returned with winning tickets which they refused to honor. When defendant displayed what they thought was a revolver, they called the police. The owners were standing outside the store when the officers arrived, and pointed out defendant.
Before trial, defendant moved for an order suppressing the gravity knife and the imitation revolver that the officers seized, as well as statements that defendant made to the police after his arrest, on the ground that they lacked probable cause to stop, arrest and search him. The court denied the suppression motion, finding that the officers' knowledge of the 911 call about a knife dispute, when coupled with the store owners' pointing to defendant when the officers arrived at the scene, gave them reasonable suspicion that defendant was involved in the dispute, which escalated when defendant took flight.*fn1
The motion to suppress should have been granted because the officers lacked valid grounds to forcibly detain defendant on the street and then pursue him when he fled. In evaluating the propriety of the police action, we must consider whether it was justified at its inception and whether it was reasonably related in scope to the circumstances leading to the encounter (People v De Bour, 40 NY2d 210, 215 ; People v Cantor, 36 NY2d 106, 111 ). In De Bour, the Court of Appeals set forth a four-level test for evaluating street encounters that the police initiate. The first three levels are relevant: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two - the common-law right of inquiry - permits a somewhat greater intrusion, short of a forcible seizure, and requires a founded suspicion that criminal activity is afoot; level three, authorizing an officer to forcibly stop and detain an individual, requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor (40 NY2d at 223; see also People v Hollman, 79 NY2d 181, 184-185 ).
Flight alone, even if accompanied with equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect's possible engagement in criminal activity (People v Holmes, 81 NY2d 1056, 1057-1058 ). Specific circumstances could include a description of the perpetrator or the alleged crime (see People v Woods, 98 NYS2d 627 ). Here there were no such circumstances.
When the officers arrived at the scene, no criminal activity was in progress. They arrived knowing only that a 911 call had been received about a vaguely described dispute with a knife; they lacked a description of the suspect and did not know who had called the police. The two unidentified men they encountered pointed out defendant without accusing him of any specific acts. Neither defendant's knife nor his imitation revolver was visible to the officers, and he was not engaged in any suspicious activity.
Under these circumstances, the officers would have been justified in conducting a level one inquiry by attempting to question defendant to clarify the situation, or in conducting a level two inquiry under the founded suspicion that defendant was involved in criminal activity. However, the officers' attempted detention of defendant when he tried to leave the location and their pursuit of him into the apartment building constituted an unjustified level three forcible seizure because the police lacked reasonable suspicion that defendant had committed a crime.
In Matter of Manuel D. (19 AD3d 128, lv denied 5 NY3d 714 ), this Court found, under similar circumstances, that the police had an insufficient basis for chasing after and arresting a fleeing suspect and charging him with resisting arrest. The officers in Manuel D. responded to a radio dispatch about a report of a possible burglary in progress at a particular location; they lacked any description of the alleged perpetrators and did not know whether the caller was reliable. When ...