The opinion of the court was delivered by: Tom, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Peter Tom,J.P., Karla Moskowitz, Roslyn H. Richter, Sheila Abdus-Salaam, Nelson S. Román, JJ.
Darryl C. appeals from the order of disposition of the Family Court, Bronx County (Nancy M. Bannon, J.), entered on or about April 1, 2010, which adjudicated him a juvenile delinquent upon his admission that he committed acts that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and placed him on probation. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for presentment agency.
The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50; People v De Bour, 40 NY2d 210, 223 ) and then "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (CPL 140.50; People v Batista, 88 NY2d 650, 654 ). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v Holland (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court's dismissal of the appeal as "not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters" (id. at 845). He stated: "When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve . . . This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime" (id.). In a footnote, Chief Judge Lippman made reference to Floyd v City of New York (8 F Supp 2d 417 [SD NY 2011]), in which the United States District Court noted, "[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year" (id. at 422 [internal quotation marks omitted]). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department's stop-and-frisk program (Floyd v City of New York, 2012 WL 1868637, 2012 US Dist LEXIS 68676, [SD NY, May 16, 2012, No. 08-Civ-1034 (SAS)]).
While the dissent's opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14-year-old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court's ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime.
The facts herein, even crediting the officer, prohibit the search undertaken in this case. At a combined Wade/Dunaway hearing, the testimony of Police Officer Orlando Colon, the arresting officer, established that on February 18, 2010, at about 11:30 a.m. he was on uniform patrol with three other officers in an unmarked van in the vicinity of 40 West Tremont Avenue, Bronx County. As a result of tensions between two rival youth gangs, multiple shootings had occurred in the area, the two most recent within four blocks of the officer's location. The context of gang violence explained the officer's presence at that location. From the van, at a distance of about 10 feet, Colon observed the 14-year-old appellant standing alone on the sidewalk "examining an object with his right hand and in his left hand he had a cell phone." Appellant was not a suspect, nor was he associated with any gang activity. Although it was broad daylight, the officer could not describe or identify the object appellant was looking at, except to state that it was black and held in appellant's right palm near his waist. Then, Colon testified, appellant "looks up, he sees the van. I'm assuming he saw it was a police van." Colon continued, "He stared at the van. He stopped, put the object in his right pocket and continued to walk and . . . handle the cell phone." At this point, this unexceptional activity was the extent of the officer's observations. Colon then left the vehicle, approached appellant and engaged him in conversation. Colon learned that appellant had come from Queens to visit his stepbrother who, the officer surmised, lived in a building where one of the rival youth gangs was concentrated. Colon then asked appellant what he had in his right hand, and appellant responded that it was his wallet. Colon testified that "[d]uring the course of the conversation he was stuttering a little bit. A little bit nervous." I will depart from a strict reading of the evidence to this limited extent: a 14-year-old boy confronted by a police officer might be "a little bit nervous" without that fact raising a red flag. Colon continued that "[m]y suspicion didn't heighten until I asked him what he had in his right hand and he told me it was his wallet that he had in the back of his pants packet. The answer was a little deceiving to me." Colon testified that, having observed appellant put the object into his right coat pocket, not his back pocket, "I told him I'm not interested what he had in his back pocket. I'm interested what he put in his coat pocket."
When appellant "attempted to go into the back pocket" to retrieve his wallet, Colon told him, "[D]o me a favor. Don't put your hands in your pocket," with which appellant complied. Colon continued, "At this point I tapped his right jacket pocket. I felt it was a hard object," although there was no indication that the object was any kind of weapon. Colon added, "At this point I repositioned myself to get an advantage. I go behind him. As I go behind him I put my right hand behind him. I tapped the pocket one more time and then I put my hand in the pocket." Colon's "hand went right into the pistol grip of the firearm."
Family Court denied appellant's motion to suppress the firearm, stating that "Officer Colon reasonably believed [appellant] to be armed and had a legitimate concern for his own safety. As such, he was justified in patting down the jacket pocket into which he saw [appellant] place a black object." The court concluded, "[O]nce he felt the grip of a gun, Officer Colon then had a reasonable suspicion that [appellant] was involved in a crime, which authorized the officer to detain him."
The Family court's conclusion that the discovery of the weapon affords reasonable suspicion of involvement in a crime reverses the necessary order of the analysis (De Bour, 40 NY2d at 215-216). As noted in People v Rivera (14 NY2d 441, 447 , cert denied 379 US 978 ), "[t]he question is not what was ultimately found, but whether there was a right to find anything" (see also Wong Sun v United States, 371 US 471, 484  ["that a search unlawful at its inception may be validated by what it turns up" is a proposition that has been consistently rejected]).
Family Court did not conduct the rigorous analysis required by People v De Bour (40 NY 2d 210, 223 , supra) to justify each escalation in interference with appellant's freedom of movement. In De Bour, the Court of Appeals provides four levels of permissible official interference with an individual's liberty. The minimal intrusion of approaching a person to request information requires only "some objective credible reason" to approach the individual that does not necessarily implicate criminal conduct (40 NY2d at 223). The second level of interference is the common-law right to inquire, triggered by a "founded suspicion" that criminal activity is afoot, which permits interference with an individual "to the extent necessary to gain explanatory information, but short of a forcible seizure" (id.). The third level is a forcible stop and detention, activated by a reasonable suspicion that a specific individual "has committed, is committing or is about to commit a felony or misdemeanor" (id.). Under the third level of interference, an officer making a forcible stop has authority to conduct a protective frisk of the individual if there is a reasonable threat of physical injury or reasonable suspicion that the person who can now be classified as a suspect is armed (CPL 140.50 ). The fourth level permits an officer to arrest an individual when there is probable cause to believe that individual has committed a crime or offense in his or her presence (De Bour, 40 NY2d at 223; CPL 140.10).
The permissible stop and frisk under De Bour tracks CPL 140.50(1) and (3) which provide in relevant part: "[W]hen he [a police officer] reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor . . . [and] a police officer . . . reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon . . . ."
The issue before us is whether the arresting officer had a reasonable suspicion of appellant's participation in a crime, combined with a reasonable fear for his personal safety, so as to justify the stop and frisk. Absent reasonable suspicion of involvement in a crime, there was no basis to stop and detain appellant and, thus, no basis for even considering conducting a frisk (De Bour, 40 NY2d at 223).
By giving seemingly evasive answers to Officer Colon's questions, appellant arguably allowed for the possibility that he might have some form of contraband, warranting further questioning under the common-law right to inquire. But the officer never undertook any further inquiry, and nothing appellant said or did gave any indication that he had committed, was committing or was about to commit a crime -- the necessary predicate for the forcible detention while appellant's jacket pocket was searched (id.).
The frisk in this case elevated the encounter from mere inquiry to a forcible intrusion. Even if Officer Colon's approach arguably was justified by a legitimate public interest in controlling gang violence and by his observation of appellant's apparent reaction to seeing other uniformed police officers inside the unmarked van, the arresting officer's own testimony clearly established that he did not have any reasonable suspicion that appellant was involved in a crime before he searched appellant. During cross-examination of Colon the following answers were elicited:
"QSo let's go back, officer, again. At some point you asked him what did he put in his pocket?
"QAnd he responded that he put a wallet in a pocket?"AYes, ma'am.
"QIt's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly ...