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People v. Hill

Supreme Court of New York, First Department

May 30, 2017

The People of the State of New York, Respondent,
Nicholas Hill, Defendant-Appellant.

          Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

          Richter, J.P., Manzanet-Daniels, Feinman, Kapnick, Gesmer, JJ.

         Judgment, Supreme Court, New York County (Gregory Carro, J. at suppression hearing; Rena K. Uviller, J. at plea and sentencing), rendered March 8, 2012, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of two years, affirmed.

         The court properly denied defendant's motion to suppress. A team of police officers was assigned as part of a conditions unit to the Polo Grounds, a New York City Housing Authority development. As this development was in a high crime area known for violence and drugs, the officers were patrolling the area to determine whether people other than tenants and invited guests were present, and were therefore trespassing. From a rooftop, police observed defendant coming in and out of the building several times, for short periods of time. An officer next observed defendant enter a car near the building, move something around, and then exit seconds later. Defendant left the area for a few minutes before returning to the front of the building. Two police officers exited their vehicle and approached defendant, stating, "[C]an I ask you a question?, " and defendant replied, "[W]hat?" During this time, defendant looked nervous, was looking around, was sweating, and kept grabbing his groin area. The officers asked defendant what he was doing in the building and whether he knew anyone in the building, and defendant told the officers that he was visiting his girlfriend at her apartment in the building. The officers asked defendant for identification, and defendant provided it. Defendant, in his testimony, stated that he informed the officers he had keys to the building, and that if the officers wanted, they could escort defendant to the apartment he had visited.

         While defendant waited nearby with the officers, the police investigated his explanation by sending a third officer to the apartment that defendant claimed he was visiting. The police retained defendant's identification [1] to verify if the occupant of the apartment knew defendant. The occupant of the apartment told the police that she did not know anyone by defendant's name or recognize defendant from his identification. The third officer returned "a short time later" after leaving to investigate. Once defendant's explanation for being in the building was proven false, there was probable cause to arrest defendant for criminal trespass.

         Defendant was not seized when he provided his identification to the police so they could investigate his explanation for visiting the building. The police did not engage in any other coercive or intimidating conduct that would elevate the encounter to a seizure (see People v Shands, 85 A.D.3d 583');">85 A.D.3d 583 [1st Dept 2011], lv denied 17 N.Y.3d 821');">17 N.Y.3d 821 [2011]). Defendant's identification was only used for a short time to investigate and defendant provided the identification voluntarily. Moreover, he was not in handcuffs or threatened during this time, and the officers did not draw their weapons.

         This Court has repeatedly held that in a trespass situation, a police officer may conduct a brief investigation to ascertain whether a defendant's explanation was credible, and this does not rise to a level three forcible detention or seizure (see e.g. People v Montero, 130 A.D.3d 474');">130 A.D.3d 474 [1st Dept 2015], lv denied 26 N.Y.3d 970');">26 N.Y.3d 970');">26 N.Y.3d 970');">26 N.Y.3d 970 [2015] [the officer's request that the defendant remain in the lobby while the officers investigated whether the defendant was a resident or guest of the building was not a seizure]; People v Donald R., 127 A.D.3d 575');">127 A.D.3d 575');">127 A.D.3d 575');">127 A.D.3d 575 [1st Dept 2015], lv denied 25 N.Y.3d 1162');">25 N.Y.3d 1162');">25 N.Y.3d 1162');">25 N.Y.3d 1162 [2015] [the officer's request that the defendant step outside so they could talk to him did not elevate the encounter to a seizure]; People v Lozado, 90 A.D.3d 582');">90 A.D.3d 582');">90 A.D.3d 582');">90 A.D.3d 582 [1st Dept 2011], lv denied 18 N.Y.3d 925');">18 N.Y.3d 925');">18 N.Y.3d 925');">18 N.Y.3d 925 [2012] [the officer's request for permission to accompany the defendant to the apartment he was visiting and the defendant agreeing to the request, did not subject the defendant to a level two inquiry]; People v Francois, 61 A.D.3d 524');">61 A.D.3d 524');">61 A.D.3d 524');">61 A.D.3d 524 [1st Dept 2009], affd 14 N.Y.3d 732');">14 N.Y.3d 732');">14 N.Y.3d 732');">14 N.Y.3d 732 [2010] [the officer asking the defendant to accompany him to a nearby wall of a subway station and physically grasping the defendant by his elbow, did not elevate the encounter to a seizure requiring reasonable suspicion]).

         In determining the lawfulness of police encounters, New York has long followed the four-level test illustrated in People v De Bour (40 N.Y.2d 210, 223 [1976]). To determine a seizure under De Bour, "[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom" (People v Bora, 83 N.Y.2d 531, 535 [1994], citing People v Hicks, 68 N.Y.2d 234, 240 [1986]). The dissent cannot point to any New York State case applying the De Bour standard to support the broad proposition that a seizure occurs whenever an officer retains a person's identification. Although the dissent cites to several federal and out-of-state cases, those cases present different factual scenarios compared to the circumstances here, and are not controlling.

         For example, the dissent cites to United States v Lambert, in which the Tenth Circuit held that the defendant was seized when agents of the DEA approached the defendant as he was heading to his car, asked for his driver's license, and began questioning him (46 F.3d 1064, 1068 [10th Cir 1995]). However, as the Tenth Circuit explained, the purpose for requesting the defendant's driver's license was to establish his identity, which the agents completed almost immediately after receiving the license, and therefore their 30-minute retention of the license constituted a seizure (id. at 1067, 1068 n 3). Here, in contrast, the officers' retention of defendant's identification was brief. There is no indication they did not intend to return it, assuming they could verify that defendant was a guest of a resident of the building where he was seen by the police. Moreover, the officers requested defendant's identification to verify his contention that he lawfully was on the premises, something they could not ascertain without either the identification or bringing defendant with them to the apartment.

         In United States v Battista, also cited by the dissent, the court focused on a number of factors which it concluded would have led the defendant to be seized (876 F.2d 201, 204-205 [DC Cir 1989]). These factors included that the officers roused the defendant from his bed at 6:30 a.m., the defendant was in a state of undress because of the early morning, the defendant was in a city that was neither home nor his ultimate destination, the defendant was traveling on a train, and the defendant gave his driver's license to the officers (id. at 204). Here, except for the brief retention of identification, none of these other factors are present.

         Although the dissent contends it is not seeking to create a rule that a seizure occurs whenever a defendant's identification is retained, the fair import of the dissent's analysis is that retention of a defendant's identification always constitutes a seizure. The cases cited by the dissent hold that the taking of identification is but one factor of several to be considered (United States v Glover 957 F.2d 1004, 1008-1009 [2d Cir 1992] [enumerated certain factors that might suggest a seizure occurred] [2]; Battista at 205 ["Although none of these factors taken individually is necessarily determinative, due regard to the totality of the circumstances leads us to conclude that the interview' with [the defendant] constituted a seizure'"]). Even if we were to consider the multi-factor test set forth in the cases cited by the dissent, we see no reason to find a seizure occurred here.

         Defendant voluntarily gave the officer his identification [3] and raised no objection when the police brought the identification to the apartment he had identified [4]. Defendant even volunteered to be escorted by the officers to the apartment that he claimed he was visiting. Therefore, defendant knew the officers were going to verify his explanation for being in the building, and defendant raised no objection to the officers retaining his identification for this limited purpose. The dissent's claim that the encounter became nonconsensual when a officer went upstairs with the identification has no support in the record.

         Furthermore, the dissent's position is irreconcilable with recent decisions of this Court. Surely, retaining a defendant's identification that was provided voluntarily for a short time, is less of a limitation on his or her freedom than escorting a defendant with several officers to the apartment that he claimed he was visiting, which this Court found was not even a level two inquiry under De Bour, much less a seizure (see Lozado at 583). It also is less restrictive than police officers physically grasping a defendant by the elbow and guiding him to a wall, and having an officer ask defendant to accompany them away from the area (see Francois at 524-525). Likewise, a request by officers that a defendant step outside of a vestibule is more restrictive than the police action that occurred here (see Donald R. at 575). Our decision in Montero stands for the proposition that in circumstances such as those here, it is not a seizure when a police officer asks a defendant to wait while they conduct a brief investigation of his reasons for being in a building. The dissent's attempt to distinguish Montero by noting that identification was not specifically mentioned in the decision, unnecessarily narrows the holding (see Montero at 475). The dissent's focus on whether defendant here could have walked away without his identification ignores the fact that defendant gave the item to the officers in the first instance, so that they could briefly investigate his alleged explanation for his presence in the building. The instant case does not present a situation where the police take someone's identification from them over his or her objection or by force, which would raise different legal issues.

         Accordingly, because we conclude that defendant was not seized until the officers were unable to verify his explanation, at which point probable cause existed, we need not reach any of the People's alternative arguments.

         All concur except Gesmer, J. who dissents in a memorandum as follows:

          GESMER, J. (dissenting)

         I respectfully dissent.

         Identification is a necessity for navigating daily life in contemporary society. Accordingly, I would find that the police officers' retention of defendant's identification while they undertook an investigation was a significant limitation on his freedom, and thus elevated their encounter with defendant to a seizure. Since the People did not argue that the officers' actions were justified by a reasonable suspicion of criminal conduct, I would grant defendant's motion to suppress the crack cocaine recovered from him, reverse his conviction, and dismiss the indictment


         Defendant was stopped by uniformed Police Officers Aguilar and Beegan outside of the entrance to 2971 Eighth Avenue, one of the buildings making up the NYCHA Polo Grounds complex. When Officer Aguilar asked defendant what he was doing and if he knew anyone at the Polo Grounds, defendant stated he was visiting his girlfriend S. in an apartment on the 11th floor. Officer Aguilar requested defendant's identification, which defendant provided.

         Officer Ng, another uniformed police officer, joined defendant and Officers Aguilar and Beegan, about 20 yards from the entrance to 2971 Eighth Avenue. Officer Beegan handed defendant's identification card to Officer Ng and instructed him to take it up to the apartment defendant had identified to investigate defendant's claim.

         With defendant's identification card in his possession, Officer Ng entered the building and rode the elevator to the 11th floor. When he knocked on the door of the apartment identified, a woman opened the door. Officer Ng showed the woman defendant's identification card and asked if she recognized defendant and if someone named S. lived in the apartment. The woman answered no to both questions. Officer Ng then rode the elevator back to the lobby, exited the building, and told the other officers what he had learned [5]. Defendant was placed under arrest for trespassing. When he was searched at the precinct, 42 bags of crack cocaine were recovered from him.

         At the suppression hearing, defense counsel argued, "[O]nce they took his identification and gave it to another police officer he was no longer free to leave. He was seized. [Defendant] can't just abandon his property to the police." [6] The hearing court concluded that there was "clearly no evidence that the defendant was not free to leave" and denied defendant's motion to suppress the crack cocaine recovered from him [7]. The People ...

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