The People of the State of New York, Dkt. 71337C/07 Respondent,
Jeffrey Johnson, Defendant-Appellant.
Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.
Andrias, J.P., Moskowitz, Freedman, Manzanet-Daniels, Feinman, JJ.
Judgment, Supreme Court, Bronx County (Harold Adler, J. at suppression hearing; Seth Marvin, J., at nonjury trial and sentencing), rendered January 21, 2010, convicting defendant of attempted criminal possession of a weapon in the fourth degree, and attempted possession of ammunition, and sentencing him to an unconditional discharge, reversed, on the law, defendant's suppression motion granted, and the accusatory instrument dismissed.
In a New York City Housing Authority building, which the testifying officer characterized as a "drug-prone" location, the officer observed defendant descending the stairs to the lobby. Upon seeing the police, defendant "froze, " "jerked back, " and appeared "as if he was going to go back up the stairs, " although he never retreated up the stairs . The officer asked defendant to come downstairs, and defendant complied. The officer inquired whether defendant lived in the building, and defendant replied in the affirmative, whereupon the officer asked defendant to produce identification. Defendant immediately clarified that he was visiting his girlfriend, who lived in the building, and informed the officer that his identification was located in his pocket. As defendant moved his hands to retrieve it, the officer's partner grabbed defendant's left arm and pulled his hand behind his back, revealing a handgun inside defendant's coat pocket. The officer seized the gun and placed defendant under arrest.
When the prosecutor asked the officer why he had engaged defendant in conversation, the officer replied "It is a NYCHA building and we're allowed to ask anybody inside the building—" As the court sustained an objection, the officer interjected, "It is a prone drug [ sic ] location."
A request for information is authorized where there is an "objective, credible reason, not necessarily indicative of criminality, " to initiate the level one encounter (see People v Moore, 6 N.Y.3d 496, 498 ). The circumstances herein did not provide an objective credible reason for a level one request for information.
Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information (see People v McIntosh, 96 N.Y.2d 521, 526-527 ). As we have observed, "[T]he reputation of a location, however notorious, does not provide a predicate for subversion of the Fourth Amendment" (People v Marine, 142 A.D.2d 368, 372 [1st Dept 1989]).
Nor does an individual's desire to avoid contact with police — even in a high-crime neighborhood — constitute an objective credible reason for making a level one inquiry (Matter of Michael F., 84 A.D.3d 468 [1st Dept 2011]). In Michael F., two uniformed officers patrolling in a "high-crime area, " stopped their car and approached a group of young men, including the defendant, congregating on a street corner. When the officers exited the marked car and approached, the defendant "turned around, walked quickly away and looked back several times over the course of two minutes" (id. at 468). We held:
"This did not justify the subsequent level one encounter, in which the testifying officer followed appellant in his police car, stopped the car, asked appellant to stop and asked him what he was doing. Appellant's conduct was ambiguous, and, in the circumstances presented, was no more than an exercise of his right to be let alone' in response to the initial approach of the other officers, rather than flight" (id.).
The People cite People v Holmes (81 N.Y.2d 1056, 1058 ) for the proposition that "[f]light... in conjunction with equivocal circumstances... might justify a police request for information." However, even if defendant's conduct on the staircase can be equated with flight — which is extremely doubtful, given the testimony that he simply stopped descending the stairs upon viewing the officers — there were no equivocal circumstances (compare Holmes, 81 N.Y.2d at 1057 [defendant with unidentified bulge in right jacket pocket walks away upon seeing police]). The right of police to patrol inside NYCHA buildings does not eliminate the requirement that each level of intrusion be supported by the corresponding level of suspicion.
Although subsequent events led to an otherwise lawful stop and frisk, those events were the result of the unauthorized encounter. Accordingly, defendant is entitled to suppression because the police action was impermissible at its inception.
All concur except Andrias, J.P., and Feinman, J.
who dissent in a memorandum by Andrias, J.P. as ...