*1
1141,
[ 847NE2d
Argued January February decided COUNSEL POINTS OF *2 (Sarah Advocates, Berger J. and York City New Appellate An Lynn Fahey), W.L. tip describing for appellant. away po- when the walking with together appellant’s appellant, area, did not lice approached tip’s seizure where the
of criminal activity justifying and wholly was uncorroborated of criminal allegation ap- made inquiry walked before the appellant (Flor- with him. or made wanted to they speak clear pellant J.L., People 93; ida v v William 266; 98 NY2d People 529 US Holmes, Bora, v People v v 531; 1056; NY2d 83 NY2d People 81 Chestnut, Martinez, v 14; 444; People People v NY2d 80 NY2d 51 Bour, v Illinois v 210; People May, 725; 40 NY2d NY2d 119.) Wardlow, 528 US (Diana Villa- Hynes, Attorney,
Charles J. District Brooklyn nueva and Leonard Joblove counsel), The respondent. of the because hearing properly suppression court denied had and frisk defendant. Wilson, Batista, v v 408; (Maryland People 519 US 88 NY2d Cantor, 650; People 210; People v De v 40 NY2d 36 NY2d Pines, v v People 106; 588; 525; Celaj, People Oeller, Ala- Florida 266; 529 US 774; 82 NY2d 1056.) White, bama 496 US 81 NY2d OPINION OF THE COURT Kaye. Chief Judge Police Of- 12, 1997,
On 9:35 approximately November a.m., in their ficers and Molinaro were on routine Racioppo patrol call of a dispute marked car when received radio as involving a Black with a described gun, approximately male and red hat—information age, jacket years wearing gray from The officers drove tip. that came an anonymous phone ap- and arrived within lights flashing scene without their No dispute one the radio call. receiving minute proximately male Black on the did, however, see a taking place. They was hat, with no and red corner—defendant—wearing gray jacket similar in the vicinity. individuals defen- and walked toward
The officers their vehicle exited any verbal attempting walk Without dant, began away. who yelled and guns their immediately officers drew inquiry, continued and The defendant then turned “police, don’t move.” gate stopping. awalk short distance toward a closed before put up When officers told hands, defendant to he made a movement toward his waistband as raised his arms. Officer Racioppo patted object down defendant, felt a hard in his left jacket pocket gun. and recovered charged possession
Defendant was arrested and weapon. suppress Supreme of a He moved to Court hearing Racioppo held a at which Officer was sole witness. hearing, foregoing description After the sup- incident, Court denied defendant’s motion press. holding affirmed, Division
“[t]he detailed authorized the offi- cers to exercise their common-law and did not stop and frisk the defendant. Nevertheless, a frisk justified by the defendant’s conduct thereafter. *3 Specifically, upon finding path blocked, de- whereupon waistband, fendant reached toward his possessed suspicion the officers for the forceable and frisk that revealed the defen- possession handgun” (People dant’s aof .25 caliber [2004] [citations Moore, v omitted]). 13 395, AD3d 396-397 Although agree we with the anon- Division that the ymous tip inquiry, police authorized an here failed to simply inquire. exercise their common-law Instead—in ordering police him at to remain where he was—the forcibly stopped defendant as soon as arrived on the scene. possess suspicion Because the officers did not until however—by after defendant reached for his waistband, already unlawfully stopped—the gun time defendant had been suppressed. should have been Defendant’s later conduct cannot (see justified inception validate an encounter that was not at its People People Bour, 210, 40 NY2d [1976]; 215 v William [2002]). 98 NY2d 98 graduated
In De we Bour, set forth a four-level test for evaluating by police: street encounters initiated level one permits police request officer to information from an individ- merely requires request supported ual and that the be an objective, necessarily reason, credible indicative of criminal- ity; inquiry, permits two, level common-law a some- greater requires what intrusion and a founded afoot; level three an authorizes officer to
499 and a reasonable individual, requires detain an in a felony individual was involved cause to four, arrest, misdemeanor; probable level requires or a crime has committed to be arrested the person believe (De Hollman, 79 at also NY2d People see [1992]). in De Bour was The Court’s purpose 184-185 seeking lawfully officers act clear guidance and a cohesive street encounters may fast-moving in what reviewing for courts propriety framework in likely for decisions in been the basis Having these situations. De Bour has become past years, thousands of cases over jurisprudence. of our integral part an a seizure constituted
Here, the gunpoint unquestionably rea- level three—and required of defendant’s Bour’s person—De sonable (see Chestnut, 51 NY2d [1980] and order a draw their firearms [where police of which is measured “freeze,” seizure, this is a the propriety standard]; Townes, the reasonable NY2d 97 [1976] [ordering to “freeze” with guns drawn amounts to seizure of the suspect by police]).
An cannot tip seizure, where that contains infor- tip predictive except of criminal behav- suggestive mation—such as information (see reliability tip ior—so that can test 99). [2000]; II, 98 J.L., Florida v William 529 US Court held a unanimous United States young standing an Black male regarding *4 a a shirt and wearing carrying at a bus stop, plaid reasonable to the gun, requisite was insufficient of the defendant. to authorize a and frisk suspicion to The in J.L. that the was sufficient argued tip State detailed the defendant matched the the intrusion because held, the The Court description provided tipster. reli- that a be however, “requires tip in its to just tendency of not illegality, able in its assertion (529 272). fur- at The Court US person” a determinate identify the could demonstrate that an anonymous tip ther explained of reliability and thus provide tipster’s subsequently if actions activity only predicted criminal in the engaged suspect. information, nor did not
Here, predictive the tip activity. tipster alleged did it accurately portray reported dispute involving man with a but when the police arrived within a minute of call, the radio receiving they did not find a in dispute Under J.L. and progress. William such was insufficient to afford the police of criminal activity, and thus did not support gunpoint stop.
That defendant began away from the walking scene when the police arrived does not render the gunpoint stop permissible. As Division recognized, the anonymous tip triggered only police officers’ common-law of This right inquiry. right authorized the to ask of questions defendant—and to fol- low defendant attempting engage while to him—but to seize not Thus, him in order do so. to defendant remained free to continue (see about his business risk without of forcible detention May, [1992] [“The police may detain in civilians order to them . question . . without a reason- able of criminal and once defendant indicated . . to . that did not wish speak officers, with should not have him stop forced to so. legal grounds Any without to do rule permit other if police seizures circumstances solely (citation omitted)]). existed for presenting potential danger” to very right be let alone—the right citizens be stopped gunpoint by tips—is factor between the level of intrusion distinguishing permissible under common-law and the right inquiry right forcibly. If merely walking away from the police were sufficient raise level to reasonable who suspicion—and to move could attempted be to remain in at the risk of forcible required place detention— the common-law right inquiry would be tantamount to the and the right forcible would be ef- fectively seized whenever right common-law justified (see [1993] [“If in these circumstances defendant an (observing standing area known an in drug with unidentified trafficking bulge jacket could combine pocket) flight justify pursuit, then in the right inquire essence would be tantamount to the to seize, would, fact, and there be let (internal omitted)]). quotation alone” marks *5 This not law. juris is Under our settled De simply Bour to elevate the prudence, right to the detain, must obtain additional information or make additional conduct suspicious observations sufficient Had defen of criminal behavior. reasonable to the prior reached for his waistband dant, example, conduct, from such or fled actively police, have raised the level tip, to the when added the no rejected have However, frequently “[w]e of suspicion.* well as is of innocent as susceptible tion that behavior It is will constitute cause. probable culpable interpretation, generate alone not innocuous behavior will true that equally (Be crime at hand” or that a is founded omitted]). (citations Bour, 40 NY2d at today decision is dissent, the Court’s Finally, addressing rea- stop requires in line with our a forcible precedent: wholly crime, committed a not has sonable the officers’ common- the founded merely suspicion—triggering Surely law here. possibility of inquiry—present just defendant had a merited investigation immediately not at gunpoint. the order of the Division should be re-
Accordingly, versed, granted and the indict- suppress defendant’s motion to ment dismissed. J. It is settled that neither an anon- (dissenting).
R.S.
Smith,
(Florida
subsequent
events
ymous tip
unconfirmed
[2002])
nor
[2000];
intuitively departure—justified, self-evident. are a policy simple, decided, the courts have valid reasons—from a interpretation suspicion.” commonsense of “reasonable In com- police sense, mon it is a of course reasonable for officer to is person anonymous says committing that who an caller may committing crime indeed be one; it would unreasonable anonymous telling to or to conclude, assume, that the caller was truth, the possibility. Equally but it is not unreasonable to want to look into the
clearly, police reasonable officer will suspicious person, seeing become when on officer, the promptly opposite decides to travel in the direction; there are many perfectly legitimate wanting no doubt reasons for shun to police, contact with the but it is still the legitimate. existence of a reason that is not Nevertheless, the courts do allow officers to detain someone with no more basis than an or avoid- police, artificially ance suspicion” and have defined “reasonable way prohibits imply ain I that such detentions. They criticism of the decisions that establish these rules. are important compete society’s on based interests that inter- est in efficient law enforcement. In case tip, if alone, could be founded that on it any person seeking “would enable to harass another set in embarrassing police intrusive, motion an detention, search” or (Florida concealing identity while 272). his or her 529 US at person police, In the case of a who avoids to make that suspicion” without more basis for “reasonable unac- abridge ceptably person’s “right ‘to be let alone’ and refuse respond police inquiry” (People omitted]). [1993] [citation accept I led While reasons that have courts hold that a grounds on officer’s either these two logically reasonable, it does not is un- follow that grounds together. point, exist suspicious At when both powerful enough seems to theme, reasons to be are society’s interest efficient law enforcement should prevail. Racioppo Thus, case, in this when Officers and Molin- description aro observed both that defendant matched the given caller a man had with a and that he began sight police, possibility to walk investigated, he did indeed to be have deserved even temporary liberty. at the cost of interference with It was possible, course, knew, based what the officers that defen- trying spiteful to harass caller the innocent victim of dant was among people who innocent him, also those and that “right prefer rather than talk be let alone” their to exercise myself bring the officers I to blame cannot but might suspecting be otherwise. that the truth Accordingly, Divi- order of the I would affirm the sion. Judges Read concur with *7 Smith, Ciparick, Graffeo G.B. Judge Judge af- dissents votes to Chief Kaye; R.S. Smith Judge separate opinion in concurs.
firm in a Rosenblatt reversed, etc.
Order