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Defendant Claims Initial Questioning by Police was Unjustified

The Facts:

An NYPD Officer, a nine-year veteran, investigates drug sales in lower Manhattan. He has made 500 narcotics-related arrests.

On 28 February 2010, the officer and his partner entered the New York City Housing Authority (NYCHA) building. They were there to conduct a vertical floor-by-floor patrol of the premises during which the officers search for loiterers, drug users, people consuming alcohol and trespassers. In housing projects, unlike police procedures applicable to private apartment buildings, officers may question anyone they encounter to determine whether they are on the premises lawfully. Sometimes, at his discretion, the officer requires that purported residents provide identification or a key. Such individuals must prove that they are not trespassers and persons claiming to be legitimate visitors must also supply corroboration.

The officer had been to the aforesaid location a handful of times. He offered the following information about the premises: the building, a multiple dwelling located in the Baruch Houses development, has a metal exterior door with a keypad on the left, a standard public housing lobby and an elevator; that a “no trespassing” sign is posted on the outside of the building. However, the officer could not say how many floors it has; he does not know any residents; he had neither reviewed a list of tenants’ names nor seen photographs of them; he is not familiar with the building’s racial or ethnic makeup; he did not state whether the building or the area is drug prone; and he did not mention whether he was aware of any other prior criminal law violation there.

On or about 6:30 p.m., the officer entered the premises and observed defendant standing alone in the lobby. He could not recall whether defendant was coming or going or how he was dressed and he did not remember whether defendant was waiting for the elevator. The officer encountered defendant in the lobby but doesn’t recall him doing anything in particular. The officer approached defendant and asked whether he resided in the building and defendant replied that he was visiting a friend. When defendant did not supply a name and apartment number, the officer arrested him for trespassing on NYCHA premises. The officer performed a search on defendant and found $284.The officer’s partner also searched defendant and recovered from his waistband 29 zip-lock bags of cocaine (cocaine possession).

Subsequently, defendant is charged with a drug crime, Criminal Possession of a Controlled Substance or cocaine possession in the Fourth Degree, and Criminal Trespass in the Third Degree.

Defendant moves to suppress the 29 zip-lock bags of cocaine and $284 recovered by the police, on the ground that they are the fruit of an officer’s unlawful approach and questioning. Defendant also moves to suppress statements made to the police.

The Issue:

If a person is merely standing in the lobby of a housing project building and there is no evidence of prior criminality at that location, are the police permitted to approach and question that individual for the purpose of determining whether he or she lives there?

The Ruling:

The Court of Appeals has articulated a four-tiered, common-law analysis of police-civilian encounters. Each progressive level corresponds to an increasing degree of police intrusion upon a person’s liberty. Level one allows an officer to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. This first level is known as a “request for information”. The police must have an articulable reason for the questioning, but the reason need not be indicative of criminality. Level two makes police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached. This second level is more intrusive than a simple request for information but short of an actual seizure and is known as the “common law right to inquire” and requires that an officer have a founded suspicion that criminal activity is afoot. Level three allows the police to stop and detain a person when the officer has reasonable suspicion that the person is committing, has committed or is about to commit a crime. Level three authorizes an officer to frisk a person for weapons where he reasonably suspects that there is danger of physical injury. And, level four permits the police to take into custody and arrest a person, when the officer has probable cause to believe that person has committed a crime.

Under the law, a person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof.

Thus, a person who is standing in the vestibule of a NYCHA building that has a history of drug activity, may be approached by the police, questioned about residency and required to produce identification, even if that individual has not engaged in conduct indicative of criminality. Such questioning is considered a level one contact. A person’s mere presence in a public housing building known for drug activity is, therefore, sufficient to justify an officer’s inquiry into whether the individual is there lawfully.

In 1992, the Legislature criminalized trespass in public housing. The purpose of the bill was to improve security in housing projects. The introducers’ memorandum states that the new provision was necessary to close a loophole in existing laws which were ineffective against would be trespassers on NYCHA property, because public housing was considered open to the public. However, neither the plain language of the statute nor its legislative history suggests that the Legislature intended to eliminate or relax a level one protection in housing projects. No matter the location, luxurious or modest, the police must have some objective credible reason to request information about a person’s residency. Officers conducting vertical patrols are not permitted to select individuals for questioning based on presence alone. At a minimum, there must be evidence of prior criminality in the building.

Here, where the police routinely engaged in random, unjustified questioning and there is evidence that they do the practice amounts to a violation of the rule. The officer’s initial inquiry, based solely on defendant’s presence in the lobby, and the resulting arrest and search were unlawful. Therefore, the defendant’s statements and the physical evidence recovered by the police are the fruits of the poisonous tree and must be suppressed.

In sum, defendant’s motion is granted; all the evidences seized are suppressed.

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