Timothy S. Davis, for appellant.
Geoffrey Kaeuper, for respondent.
New York Civil Liberties Union, amicus curiae.
Timothy S. Davis, for appellant.
Geoffrey Kaeuper, for respondent.
Following a verbal exchange between defendant and a police officer on a Rochester street, defendant was arrested for disorderly conduct. He challenged the legality of his arrest, arguing that the statements and conduct that preceded it did not rise to the level of disorderly conduct. We agree.
The facts giving rise to the disorderly conduct arrest are undisputed. On a spring evening at around 6:30 P.M., Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant's girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman's identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota — not a Cadillac. Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather's vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson's car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.
Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked "what did you say, " defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine. Defendant was subsequently indicted and charged with criminal possession of a controlled substance third degree, criminal possession of a controlled substance fourth degree and disorderly conduct.
Defendant moved to suppress the drugs found on his person, contending that the arrest for disorderly conduct was illegal, rendering the contraband fruit of the poisonous tree. At the suppression hearing, Officer Johnson testified to the events described above and the People introduced the videotape of the incident made by defendant's girlfriend, which largely corroborated Johnson's testimony. At the close of the proof, defense counsel argued that the police lacked probable cause for the disorderly conduct arrest because defendant's statements were not uttered with the intent to annoy, harass or alarm, the culpable mental state under the disorderly conduct statute (see Penal Law § 240.20). Defense counsel further asserted that the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.
Crediting Officer Johnson's uncontradicted testimony, County Court found that the police had probable cause to make the arrest, meaning that the resulting search was lawful and the contraband discovered incident thereto was admissible at trial. Following the denial of the suppression application, defendant was presented with a plea proposal that would simultaneously resolve the drug possession charges and unrelated assault charges from a separate pending indictment. If defendant pleaded guilty to one count of criminal possession of a controlled substance third degree in satisfaction of this indictment and one count of assault second degree in satisfaction of the assault indictment, County Court promised that he would receive concurrent terms of six years in prison plus appropriate post-release supervision (five years on the assault conviction and three years on the drug conviction). The court clarified that this disposition would not preclude defendant from challenging the denial of suppression on appeal, which defense counsel indicated was his intent. Defendant accepted this resolution, pleading guilty to the two offenses in satisfaction of both indictments, and County Court imposed the agreed-upon sentence.
In an appeal from the judgment in the drug possession case, defendant sought review of the suppression ruling (Appeal No. 1) but the Appellate Division summarily affirmed (82 A.D.3d 1656). In a separate appeal (Appeal No. 2), defendant sought vacatur of his plea in the assault case in the event that he succeeded in his challenge to the suppression order. That appeal was also rejected by the Appellate Division (82 A.D.3d 1657). A Judge of this Court granted defendant leave to appeal from both Appellate Division orders and we now reverse.
Defendant argues that, if applied to criminalize his statements and conduct, Penal Law § 240.20(3) — the disorderly conduct statute underlying his arrest — violates the First Amendment. He contends that the Court should avoid this result by construing the provision narrowly to permit prosecution only when the statements uttered by the accused either constitute obscenity (as that term has been defined in First Amendment cases) or "fighting words" and he claims that his arrest was unlawful because his utterances did not fall into either category. Before we can address what is, in effect, an as-applied challenge to the constitutional validity of the statute, we must first determine whether the Penal Law § 240.20(3) arrest was lawful under our existing precedent. Thus, the threshold issue presented in this case is whether there was a record basis for the finding of the courts below that defendant's disorderly conduct arrest was supported by probable cause . "Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent [person] in believing that the offense has been committed" (People v Oden, 36 N.Y.2d 382, 384 ).
Under Penal Law § 240.20(3), "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof... [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture." The offense has existed in one form or another for more than a century and has spawned a significant body of case law. As is clear from the precedent, critical to a charge of disorderly conduct is a finding that defendant's disruptive statements and behavior were of a public rather than an individual dimension. This requirement stems from the mens rea component, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk). Thus, "a person may be guilty of disorderly conduct only when the situation extends beyond the ...