120 A.D.2d 266 | N.Y. App. Div. | 1986
On this appeal, the dispositive question is whether County Court properly granted defendant’s motion to suppress. A review of the suppression hearing minutes shows that the State Police maintained a surveillance at the Albany County Airport because of an anonymous telephone tip that one Andrew Walsh, for whose arrest a warrant had been issued, intended to fly to California. Walsh arrived accompanied by a white male of unknown identity, later identified as defendant. The officers testified that as Walsh and defendant approached the People Express Airlines ticket counter, the officers approached from behind and Walsh was quickly arrested.
The US Constitution 4th Amendment and NY Constitution, article 1, § 12 both guarantee the right of an individual to be free from unreasonable searches and seizures. In the absence of a warrant, police traditionally require probable cause to stop and frisk an individual (Florida v Royer, 460 US 491, 498; Dunaway v New York, 442 US 200, 208). There are exceptions embodied by statute in this State (CPL 140.50 [1], [3]; see,
These principles in mind, we agree with County Court that the record demonstrates that the police acted without reasonable suspicion and that the precipitate frisk to which defendant was subjected was constitutionally infirm. There is little question that when the officer initially grabbed defendant at the ticket counter, defendant had been "seized” (see, Terry v Ohio, supra, p 16). By their own account, however, the officers were not in any way familiar with defendant other than the observation that he had accompanied Walsh into the airport. Significant is the fact that defendant was seized before the inquiry was made as to whether he was Walsh’s companion. Since this seizure cannot, as the People suggest, be validated under the common-law right to inquire (see, People v Cantor, supra, p 114), it was incumbent upon the People to identify some articulable basis by which the officers could reasonably suspect that defendant was engaged in criminal activity. Even accepting the account of events provided by the prosecution witnesses, there is nothing in the record to indicate that defendant was acting in a suspicious manner or that he did anything other than to stand at the counter next to Walsh. In their brief, the People concede that the only reason defendant was approached was his presence near Walsh, who was known to be involved in drug trafficking and considered dangerous. This inference of guilt by association was impermissible (see, Ybarra v Illinois, 444 US 85, 91; People v Ballejo, 114 AD2d
In sum, the mere presence of defendant in the airport with Walsh did not provide a reasonable basis to suspect criminal behavior on his part, nor pose any threat to the safety of the police officers such as to justify either the stop or the frisk. In the context of the police response to a tip from an anonymous caller, not about defendant, but about Walsh, we cannot say that the police actions were justified in their inception or their scope (see, People v De Bour, supra, p 222; People v Bond, 116 AD2d 28, supra). It follows that the subsequent searches were also illegal and the contraband seized and statements made were properly suppressed (see, Wong Sun v United States, 371 US 471, 486, 488, supra; People v Bond, supra, p 33).
Mahoney, P. J., Main, Mikoll and Harvey, JJ., concur.
Order affirmed.
We take note that while the witnesses for the defense and the People directly contradicted each other as to the confrontational events at the ticket counter, County Court essentially found both versions worthy of belief. Such a determination creates the anomalous result of leaving important factual questions unresolved. The dilemma posed, however, may be readily corrected, for even accepting the testimony of the prosecution witnesses, the stop and frisk in issue was constitutionally invalid.