Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered November 26, 2008, which granted defendant's motion to suppress physical evidence and statements, reversed, on the law, the motion denied, and the matter remanded for further proceedings consistent herewith.
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.
Tom, J.P., Sweeny, Catterson, Moskowitz, DeGrasse, JJ.
On December 30, 2007, a team consisting of Police Officers Porras, Woodard and two others was on patrol in the vicinity of a public housing development. The area had been earmarked for patrol because of reports of drug dealing, robberies and gunshots. At approximately 1:40 a.m., the team approached a group of four to six individuals in front of 110 East 129th Street. Defendant, who was walking toward the group, changed his direction as the officers approached. Porras called out to defendant and asked him to stop. In response to Porras's questions, defendant stated that he did not live in the housing development. At Porras's request, defendant handed over photo identification. Porras testified that his investigation was complete at that point, since nothing about defendant's photo identification aroused his suspicion. Porras did not, however, return the identification to defendant. Woodard, who did not hear the conversation between Porras and defendant, began asking defendant some of the same questions put to him by Porras. Defendant became irate and punched Porras. A struggle ensued as the officers arrested defendant for assault and disorderly conduct. Upon the arrest, quantities of crack cocaine and marijuana were recovered from defendant's person. The motion court granted defendant's motion to suppress physical evidence, as well as his statements, reasoning that "[e]ven if there was a basis for initially requesting information from defendant, which there was not, any such justification was exhausted after he answered Porr[a]s who was obligated to return the identification and allow him to leave." The court further found that what it described as "continued detention" was unlawful, and defendant's reaction to it was "proportionate to the circumstances." We disagree.
Once defendant punched Officer Porras, any allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct (see People v Mercado, 229 AD2d 550 ; People v Stone, 197 AD2d 356 ). We distinguish People v Felton (78 NY2d 1063 ), where there was no attenuation because the defendant's action in striking a police officer was in the words of the suppression court, "immediate, spontaneous and proportionate to the officer's attempt to lay hands on him when he refused to stop" (id. at 1064). Here, the police officers did not initiate any physical contact with defendant or attempt to do so before he punched Officer Porras. In this case, defendant's actions were far out of proportion to Officer Woodard's redundant questions. Hence, we disagree with the dissent's view that defendant's "minimal use of force in the attempt to get away from the officers was a direct consequence of his unlawful detention." For purposes of applying Felton, it is of no moment whether defendant punched or pushed Officer Porras, because, as stated above, the police officers did not initiate or attempt to initiate physical contact with defendant. For example, in People v Sampson (68 AD3d 1455 ), the court found that a suspect's act in pushing a police officer did not dissipate the taint of an illegal stop because it was "a spontaneous reaction to [the officer's] attempt to touch him, and a direct consequence of the illegal seizure" (id. at 1458, emphasis added). In light of the foregoing, we need not resolve the issue of the legality of the police officers' stopping and questioning defendant (see Mercado, 229 AD2d at 551). All concur except Tom, J.P. and Moskowitz, J. who dissent in a memorandum by Tom, J.P. as follows: TOM, J.P. (dissenting)
While under the circumstances of this case the police had an objective credible reason to approach defendant to request information, the officers' subsequent detention of defendant exceeded the scope of the permissible inquiry and violated his Fourth Amendment right to be free from undue interference with his liberty. Defendant's minimal use of force in the attempt to get away from the officers was a direct consequence of his unlawful detention and does not attenuate the illegally initiated police intrusion upon his freedom of movement.
Police officers Porras and Woodard testified at a combined Mapp/Dunaway/Huntley hearing before a judicial hearing officer. In the early morning of December 30, 2007, they were working with three other uniformed police officers "doing a perimeter check" of the area "[i]n front of 120 East 129th in the Jackie Robinson Housing Development" in upper Manhattan. Porras first noticed defendant at about 1:40 A.M. as he and the other officers entered the housing development, an area where he had made a number of prior arrests, mostly related to illegal narcotics. Defendant was walking toward a group of four to six people gathered in front of the building, as were the officers. Porras testified: "Once he saw us, he changed direction right away. That caught my attention at the time." Porras approached defendant and asked whether he lived in the area or in the development, to which defendant responded, "No." Porras continued, "He was agitated at the time of the stop, and I asked him if he had any identification on him which he said he did and he presented it to me." Although defendant's identification card was in order, Officer Porras did not return it to him.
Woodard testified he became aware that Porras "was speaking alone with an individual and the individual was becoming a little loud and irate . . . After I approached, I asked Mr. Holland if he had identification, if he lived in the development." Even though defendant had already responded to these questions, Porras did not stop Woodard's inquiry. Defendant became more irate and louder. Woodard continued, "At this point in time Officer Arslanbeck had c[o]me over." Porras testified that defendant's "agitation" worried him and he "approached" the defendant. Woodard testified that defendant then "took a closed fist and swung at Officer Porras, turned around and tried to run through myself and Officer Arslanbeck . . . At that point in time we grabbed the defendant . . . and a struggle ensued." It took four officers approximately five minutes to subdue defendant, who was placed under arrest for "Assaulting an officer, disorderly conduct and resisting arrest." He related that a bag of crack cocaine and a ziplock bag containing marijuana were recovered from defendant's person.
Porras gave a somewhat different version of the events leading up to the scuffle with defendant: "The defendant started acting very hostile. He started becoming very agitated," and took "one swing at me striking me in my shoulder, and when I flinched, he ran toward Officer Woodard. At that point, I went ahead and grabbed the defendant by the waist." During the resulting struggle, "he struck me again in the right forehead and underneath the right eye causing some swelling and small laceration." After three or four minutes, the officers were able to place defendant in handcuffs.
Defendant was charged with assault in the second degree, criminal possession of a controlled substance in the fifth degree and unlawful possession of marijuana. He moved to suppress statement and physical evidence as a result of the illegal stop and detention by the police.
Supreme Court granted defendant's motion to suppress testimony concerning any statements defendant may have given, and all physical evidence recovered, on the ground that the officers who confronted defendant lacked a reason to approach him, and in any event, once defendant answered the questions put to him by Officer Porras and provided identification, "Porr[a]s' investigation was complete, since he found nothing about the identification that aroused his suspicion. Nevertheless, he did not return the identification, in this way preventing defendant from leaving . . . Porr[a]s then assisted Woodard and P.O. Robin in blocking defendant's egress . . . The continued detention was unlawful and the reaction of defendant proportionate to the circumstances. It does not attenuate the unlawful detention and render the contraband admissible."
On appeal, the People assert error in Supreme Court's finding that the police lacked a reason to approach defendant, arguing that defendant's "suspicious conduct within a crime-plagued, public housing area, late at night, only elevated the officers' predicate for inquiry." They also take issue with the court's portrayal of the officer's conduct as an "unlawful detention" of defendant, contending that Porras "was justified in his limited, non-accusatory questioning of the defendant," and assert that "Officer Woodard, in a very reasonable response to defendant's growing agitation, joined Officer Porras and unwittingly repeated Officer Porras' questions." Finally, the People dispute the court's finding that defendant's attempt to get away from the police officers was reasonable. In any event, they argue, "Defendant's striking Officer Porras was a completely independent act, which provided its own probable cause to arrest and attenuated the taint of any initial illegality from the contact between defendant and the police" (citing People v Townes, 41 NY2d 97 ).
Deciding whether a search and seizure is reasonable under the Fourth Amendment requires that a court "consider whether or not the action of the police was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible" (People v Cantor, 36 NY2d 106, 111 ). While defendant does not concede the legitimacy of Porras's approach, the police are "given wide latitude to approach individuals and request information" (People v De Bour, 40 NY2d 210, 218 ), which is construed as a "minimal intrusion" on individual privacy and security requiring only "some objective credible reason for that interference not necessarily indicative of criminality" (id. at 223). Defendant's presence "after midnight in an area known for its high incidence of drug activity" and his change of direction "to avoid walking past the uniformed officers" warranted Porras's approach to inquire about ...