Published on:

Defendant Contends Police Initiated Contact Inappropropriate

On 23 January 1997 at approximately 3:30 A.M., an investigator from the Albany County Sheriff’s Department boarded a bus which had arrived from New York City. The investigator, wearing civilian clothing with his police badge prominently displayed on his coat, was accompanied by two other officers. A New York Criminal Lawyer said the investigator announced that they were conducting a drug interdiction and asked everyone on board, approximately fifteen passengers, to produce bus tickets and identification. He then proceeded to the back of the bus to begin examining those items from each passenger.

As the investigator was walking to the rear of the bus, he observed defendant and a female companion, sitting in the last row of seats, push a black object between them. He approached the two individuals and asked for their identification and bus tickets. The investigator then obtained consent to search defendant’s bag which led to the discovery of a digital scale; asked defendant and his companion to stand at which time he saw a black jacket on defendant’s seat. The officer found more than two ounces of cocaine in the jacket pocket (drug possession).

Defendant was indicted on one count of criminal possession of a controlled substance in the second degree and one count of criminal possession of a controlled substance in the third degree, drug crimes.

The defendant moved to suppress the physical evidence seized by the police but the County Court denied it.

Subsequently, defendant pleaded guilty to both charges and was sentenced as a second felony offender to concurrent prison sentences of 8½ years to life and 8½ to 17 years.

The Appellate Division affirmed the decision.

Hence, the herein appeal.

The issue here is the admissibility of evidence seized as the result of an encounter between defendant and the police on a commercial passenger bus during a stopover in Albany, New York.

Defendant asserts that police conduct in this case violated the rules regulating police-initiated encounters with civilians.

At the outset, the court notes that whether police conduct in any particular case conforms to the rules is a mixed question of law and fact. Therefore, the court’s review is limited to whether there is evidence in the record supporting the lower courts’ determinations. Here, the court concludes in the negative.

Where police acting in their criminal law enforcement capacity initiate an encounter with private citizens, the propriety of the encounter must be assessed under the four-tiered analytical framework: “If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion. Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.

Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.

It is well settled that when an officer asks an individual to provide identification or destination information during a police-initiated encounter, the request for information implicates the initial tier of De Bour analysis. A Brooklyn Criminal Lawyer said that although police officers have fairly broad authority to approach and pose questions, they may not do so on mere whim or caprice; the request must be based on an articulable reason not necessarily related to criminality.

The resolution of this case depends on when De Bour scrutiny was triggered and if, at that time, the police had an objective, credible reason to justify the request that all passengers produce tickets and identification.

The People contend that the police did not approach any particular passenger until the investigator observed defendant and his companion secret a black object, which provided the investigator with an articulable reason to request information from defendant and his companion.

However, starting De Bour analysis at this juncture overlooks the fact, as found by County Court and the Appellate Division, that the investigator initially asked every one of the passengers to present documentation prior to any observations of passenger conduct. De Bour was triggered at that point. The Appellate Division held that this inceptive request was satisfied by the articulable reason that the officers were conducting drug interdiction on a commercial passenger bus traveling from New York City, a known source city for narcotic drugs.

Defendant then argues that law enforcement knowledge regarding the origination of the bus was inadequate to establish a legal basis to ask everyone traveling on the bus to produce identification and a bus ticket.

The court agrees with defendant.

Courts have never held that a police encounter was justified by anything so general such as the knowledge that an entire city is a known source of drugs. Even a discrete area of a city identified as a high crime area has not, by itself, been sufficient justification for informational requests of the type involved here.

In determining the legality of an encounter, it has been crucial whether a nexus to conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. A Nassau County Criminal Lawyer said the fact that an encounter occurred in a high crime area, without more, has not passed De Bour scrutiny.

Meanwhile, a request for information might be justified, for instance, if the officers had a tip” or information that drugs were being transported from New York City by bus that evening, or if the police had observed defendant engage in certain activity prior to boarding the bus and then questioned him on the bus. Similarly, if the police had information that a fugitive was in the terminal, that could warrant the questioning of passengers. De Bour, in short, does not prevent police officers from following up on leads or from requesting information in countless situations where there is an objective, credible reason to question a person.

Here, the record does not reflect any reason for the request of all passengers to produce their tickets and identification, other than the fact the bus had departed from a place described by the investigator known as a source city for narcotics. In the absence of any conduct by a passenger or other basis giving rise to a particularized reason for the encounter, the request of 15 passengers to produce documentation did not meet the De Bour standard. Neither does the investigator’s observation of defendant pushing a black object legitimize his earlier request of all passengers. Since a police encounter cannot be validated by a later-acquired suspicion, the investigator’s subsequent observations of defendant do not cleanse the initial request of its shortcomings.

Accordingly, the court concludes that the procedure employed by the three police officers in boarding the bus and requesting that all of the passengers produce tickets and identification was conducted without an objective, credible reason. It follows that the ensuing search of defendant’s bag and jacket was unlawful. In light of the determination, the court need not consider defendant’s remaining constitutional challenges.

The order of the Appellate Division is reversed; defendant’s guilty plea vacated; his motion to suppress granted; and, the indictment dismissed.

For more information regarding defense strategies in criminal cases, if you are in one, contact Stephen Bilkis & Associates and have a free consultation. Be advised by the best criminal defense lawyers. Talk to a New York Criminal Lawyer, a New York Drug Lawyer, or a New York Arrest Lawyer, among others, from our firm and plan your defenses in court.

Contact Information