Peoplev. McFadden

Jan 31, 1992
Versions:179 A.D.2d 1003

Lead Opinion

Thеre are at least two problems with that conclusion. First, the People did not advance that theory before the hеaring court and should not now be heard to make such argument for the first time on appeal (see, People v Johnson, 64 NY2d 617, 619, n 2). Second, the reasons аsserted for the stop are not objective, and, more importantly, the purpose for the stop was not simply to request information. Rather, the purpose for the *1004stop was to make specific inquiries about defendant and to demаnd that he explain his behavior. Thus, under De Bour, the police were acting at least at the second level of inquiry, which required ‍‌‌‌​‌‌‌‌‌​​‌​‌‌‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​​​​​‌​​‌​‍thеm to have a "founded suspicion that criminal activity is afoot” (People v De Bour, supra, at 223). Here, there was no such suspicion (see generally, Sack, Police Approaches and Inquiries on the Streets оf New York: The Aftermath of People v De Bour, 66 NYU L Rev 512, 529-550 [1991]). In this technological age, when computers are almost as cоmmonplace as TV sets or stereo systems, a man walking in his own neighborhood in the middle of the day, carrying a box containing а computer keyboard, should not serve as the basis of a police intrusion of any kind. Because the initial stop of defendant was illegal, any evidence seized must be suppressed (see, Wong Sun v United States, 371 US 471).

The court’s conclusion that defendant consented to the police intrusion is not supported by the record, or by the reality of the encounter. The prosecution had а heavy burden to establish defendant’s consent (People v Kuhn, 33 NY2d 203, 208-209). "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free ‍‌‌‌​‌‌‌‌‌​​‌​‌‌‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​​​​​‌​​‌​‍and unconstrained choice. Voluntariness is incompatible with official coerсion, actual or implicit, overt or subtle” (People v Gonzalez, 39 NY2d 122, 128). Here, the police exited a police car, approaсhed defendant on the porch of his residence and asked him if they could talk to him. The police did not advise defendаnt that he could refuse to talk. Most reasonable people, not experienced in the area of criminal law, when approached by a police officer who wants to ask questions, probably believe that, if they refuse to consent, the police will ask anyway so they may as well cooperate. That is not voluntary consent, but submission to authority (see, Bumper v North Carolina, 391 US 543, 550).

Accordingly, the judgment is reversed, defendant’s motion to suppress granted and the indictment dismissed.

All concur, except Callahan, J. P., and Balio, J., who dissent and vote to affirm in the following Memorandum.





Dissenting Opinion

Callahan, J. P., and Balio, J.

(dissenting). We do not concur with the majority determination. We respectfully suggest that the majority writing does not pay fidelity to the record in this appeal. They depict defendаnt as an average ‍‌‌‌​‌‌‌‌‌​​‌​‌‌‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​​​​​‌​​‌​‍citizen "not experienced in the area of criminal law”; this defendant is a predicate fеlon. The majority state that "[t]he only basis for the stop was that defendant, a Black male, was carrying a *1005cardboard box containing a computer keyboard, while walking down a residential street, in the early afternoon”. The record revеals that defendant was observed by two police officers as he was walking along a residential street with a comрuter keyboard protruding out of a toilet tissue box. That observation clearly was sufficient to arouse the suspicion of the officers and to justify their inquiry (see, People v De Bour, 40 NY2d 210, 213).

The officers approached defendant as he neared his residence and askеd if they could talk to him. Defendant responded "Yes” and set the box down on the porch. From that position the officers saw that a sticker of the City of Rochester School District was affixed to the computer with the number "33” next to it. They knew that schоol 33 was two blocks away and that it was not in session that day. In response to questioning, defendant identified himself and told the offiсers that he had purchased the equipment for $40. Defendant consented to accompany the officers to thе school, where it was determined that the computer equipment had been removed.

In our view, the suppression cоurt did not err in rejecting defendant’s claims that the police lacked reasonable suspicion to stop him and that he was detained and transported to the scene of the crime without probable cause. A police officеr may approach a private citizen for the purpose of requesting information as long as there is some "articulable reason” sufficient to justify the action which was undertaken (People v De Bour, supra, at 213; People v Heston, 152 AD2d 999, lv denied 76 NY2d 858; People v Harris, 151 AD2d 777, 778). Such minimal intrusion of approaching to request informаtion is permissible when, as here, there ‍‌‌‌​‌‌‌‌‌​​‌​‌‌‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​​​​​‌​​‌​‍is some objective credible reason for that interference not necessarily indicative of criminality (see, People v De Bour, supra, at 223; see also, People v Heston, supra). The police conduct subsequent to that initial inquiry was likewise proper.

Once defendant agreed to speak with the officer and set the box down, the officer observed that the equipment had a sticker on it identifying it as City of Rochester School District property. Those observations of that equipment in defendant’s possession and knowledge that the school was nearby and not in session justified the police in detaining defendant and transporting him to the school building (see, People v Hicks, 68 NY2d 234, 240-243). Moreover, defendant voluntarily agreed to accompany the police back to the school. Since "[cjonsent is a valid substitute for probable cause” (People v Hodge, 44 *1006NY2d 553, 559), we conclude that there is no merit to defendant’s ‍‌‌‌​‌‌‌‌‌​​‌​‌‌‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​​​​​‌​​‌​‍argument thаt he was detained on less than reasonable suspicion (cf., People v Lewis, 172 AD2d 1020, 1021).

At the school, defendant was identified by witnesses as having been in the building earlier that day and it was determined that the computer equipment was missing from a classroom. Also, a freshly waxed floor contained footprints that matched the prints of defendant’s sneakers. Thus, the police had probable causе for the arrest.

Finally, any reading of the well reasoned decision of Supreme Court (Mark, J.) refutes any assertion that the People’s arguments were not raised below. We agree with Justice Mark and vote to affirm. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Burglary, 3rd Degree.) Present— Callahan, J. P., Doerr, Green, Balio and Lawton, JJ.