In this criminal case, at the hearing, the People called two witnesses: a New York Drug Enforcement Administration Special Agent, and New York City Police Department Detective. The defense called no witnesses.
The agent testified that on April 3, 2008, he, along with his supervisor, and the members of his field team, conducted surveillance at West 225th Street and Broadway in Bronx County based on information received from an undisclosed source that a drug crime trafficking organization was planning to engage in a transaction that evening. The agents were informed that the seller would arrive in a vehicle containing approximately ten to fifteen kilograms of cocaine (cocaine possession) and enter the Target parking lot located on West 225th Street near Broadway. With the cocaine remaining inside, the seller would give the vehicle to the purchaser, who would remove it, place the money inside, and return the vehicle.
A Bronx Drug Crime Lawyer said that, while conducting surveillance during the daylight hours of April 3, 2008, Agent Aceves observed individuals, who he referred to as the sellers; arrive in a black BMW, for the purpose of negotiating the transaction details he was advised would occur that evening. Agent Aceves, however, neither identified those individuals nor provided a factual basis upon which to conclude they had engaged in negotiating the transaction.
That evening, the agent, riding in an unmarked Jeep Cherokee driven by the detective, arrived near the Target parking lot on West 225th Street. Upon being informed that the subjects were en route, he was advised that a silver Infinity would soon arrive followed by the black BMW he observed earlier that day. The agent testified that while the Infinity entered the parking lot, the BMW did not. Instead, he stated, “the black BMW stayed behind and parked directly in front of my supervisor at a bus stop on 225th Street. My supervisor and I decided that we would make the arrest right then and there”. The agent testified that his supervisor immediately activated the vehicle’s lights and sirens and moved directly behind the BMW. Another vehicle from the field team moved in front of the BMW to block it in. At that moment, he observed the defendant exit the BMW from the rear door on the driver’s side and move “quickly away from the vehicle.” Agent Bradley then pursued and apprehended him. Upon frisking the defendant, the detective discovered a gun inside the defendant’s waistband (possession of a weapon).
A Bronx Drug Crime Lawyer said that, with regard to defendant’s identity, the agent testified that he “had no idea who the defendant was, but he was in the vehicle that was to be delivering drugs,” adding that “had it not sped up, we very well could have found drugs and possibly more weapons in that vehicle”. Further conceding he possessed no knowledge or information relative to the defendant, the agent testified that at the time they observed the defendant exit the BMW, “he had not been identified” as a participant of the drug crime trafficking organization under investigation.
Defendant is charged with criminal possession of a weapon in the second degree (PL 265.03 ), criminal possession of a weapon in the fourth degree (PL 265.01 ) and possession of ammunition (AC 10-131 [I] ). A Bronx Criminal lawyer said that, defendant moved, among other things, for suppression of a gun and statements made to the arresting officer on the grounds that they were obtained without probable cause in violation of N Y Const, art I, § 12, and U. S. Const, 4th Amendment, thus claiming they were fruits of an unlawful arrest.
The issue in this case is whether defendant is entitled to the suppression of the evidence, on the ground that they were fruits of an unlawful arrest.
The Court held that, initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct. Once the People have met this burden, the defendant bears the responsibility of proving any illegality of the police conduct.
In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant’s behavior, justified the arresting officers’ intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour. DeBour’s first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a “founded suspicion that criminal activity is afoot”. Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime.
i. Request for Information
At the very least, DeBour makes clear that any level-one approach must, in addition to being objective and credible, be sufficiently particular to justify a request for basic information. A person or group of people arriving in a location and coming from another location known to be a source of drugs, by itself, does not provide an objective, credible reason to ask any such person for identification. Included in a level-one approach is an officer’s right to speak with the driver of a stationary vehicle for traffic related reasons. This is true even where an officer follows a vehicle or otherwise has it under surveillance, provided the driver voluntarily stops or parks the vehicle without knowledge of the police presence. Thus, an officer may certainly approach a vehicle unlawfully parked or stopped and request to see the driver’s license before ordering the driver to move the vehicle.
Moreover, an officer must similarly have an articulable basis for requesting information from a vehicle’s passenger. Absent additional facts specifically attributable to a passenger, such person is free to walk, even run, from a vehicle once it is stopped by the police for an alleged traffic violation.
Here, the District Attorney argues the agents approached the BMW because they had it “under surveillance and everything, their reasoning their probable cause, their approaching the vehicle to stop the vehicle was because it had pulled in and parked at a bus stop, which is illegal parking”. This argument is inherently flawed because the agents did not stop the BMW, and the driver parked at a bus stop without any apparent knowledge of their presence. If the basis for their approach was indeed that the driver illegally parked at a bus stop, it would have been justified regardless of whether they had probable cause. Such a claim, however, is belied by the record.
The testimony elicited at the hearing established that Agent Aceves and his team were conducting surveillance of the Target parking lot located on West 225th Street near Broadway on the basis of information they received that a sale of ten to fifteen kilos of cocaine would occur. Specifically, they were advised that the sellers would arrive in a black BMW with the cocaine inside, drive into the parking lot, and give the vehicle to the purchaser. The purchaser would then drive away, remove the cocaine, and return the BMW to the seller with the money inside. Upon observing the BMW stop and park at a bus stop, instead of entering the parking lot as anticipated, the agent testified that the decision was made to immediately approach it. The agent neither stated, nor remotely inferred, that the basis upon which they decided to approach the BMW was that it was unlawfully parked at a bus stop.
Moreover, defense counsel correctly notes that the hearing record is devoid of any testimony or evidence of a posted sign establishing the area as either a bus stop or a no-standing zone. The record further lacks any testimony or evidence as to the length of time the officers observed the vehicle, whether the engine was running, whether the vehicle interfered with a bus entering or leaving the designated area, or whether anyone was observed exiting or entering the vehicle.
As noted above, an officer must also have an articulable basis for requesting information from a passenger. Accordingly, even if this court were to accept the People’s argument, which it does not, in no way would it have provided an articulable basis to approach and request basic information from the defendant.
ii. Common-Law Right of Inquiry & Reasonable Suspicion
While valid traffic related issues are widely regarded as the less intrusive level-one inquiry, the common-law right to inquire focuses on the citizen as a suspect and whether there is “founded suspicion that criminal activity is afoot”. Courts have described this level-two inquiry as one that closes in on a defendant as a “suspected law breaker”. Although this level of intrusion entitles an officer to interfere with a citizen “to the extent necessary to gain explanatory information,” it may not involve a forcible stop and seizure.
Under a level-three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity. Reasonable suspicion exists when: evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was or is being committed and that such person has committed it.
Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand”. In other words, the officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient.
Unlike the common-law right of inquiry, a level-three intrusion is indeed a forcible stop and constitutes a seizure whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action.
Here, it is axiomatic that upon deciding to approach the BMW and “make the arrest right then and there”, the agents effected a forcible stop. The agent’s supervisor activated his vehicle’s turret lights and sirens and moved directly behind the BMW. Another agent’s vehicle moved in front of the BMW to block it in. As the defendant, a passenger, exited and moved “quickly away from the vehicle,” Agent Bradley pursued, physically restrained and frisked him. Considering such factors, and weighing them in the context of these events, there is no doubt that a reasonable person under similar circumstances would have believed his freedom of movement was significantly limited.
Having unequivocally concluded that the agents’ conduct constituted a seizure, the sole remaining issue is whether they possessed, at a minimum, reasonable suspicion to do so. Of course, an officer’s basis for conducting an investigatory stop may emanate from personal observation or information provided by others. When such information is provided by another individual, however, it “must carry sufficient indicia of reliability to justify the forcible encounter”. Thus, it is incumbent on the People to make some showing of both that person’s reliability and basis of knowledge. Notwithstanding that this rule is most often applied when evaluating an application for a search warrant, it is no less relevant in assessing the propriety of a warrantless arrest and search.
The District Attorney claims the agent had probable cause to seize the BMW and pursue the defendant. This assertion, however, is arguably less persuasive than their claim that the agents approached the vehicle merely because it was parked at a bus stop. Other than the unattributable information from an unidentified source that a BMW containing a quantity of cocaine would enter a parking lot and be given to the purchaser, the agent possessed no information or suspicion concerning the defendant. In fact, the agent conceded that he “had no idea” who the defendant was. Indeed, nothing he observed during either surveillance session was indicative of criminal activity. Absent disclosure of the circumstances from which the agent concluded that criminal activities were taking place, his observations of the BMW were more than susceptible to an interpretation of innocent conduct; they were consistent with it. In fact, arguably his most significant observation was incongruous with the provided information; the BMW parked without entering the parking lot.
According to the record, the decision to approach the BMW was ostensibly based on the mere conjecture that it “very well could have” contained drugs and weapons. The failure to provide specific and articulable facts reasonably demonstrating that the defendant had committed, was committing, or was about to commit a crime, renders such speculation little more than a hunch. Clearly then, contrary to the People’s claim, the agent did not possess the requisite reasonable suspicion, let alone the probable cause, to seize both the BMW and the defendant.
Where an officer has reasonable suspicion, such officer is justified in pursuing a suspect who flees when approached. Regarding the common-law right of inquiry, the Court of Appeals enunciated a “well-settled principle: that a defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to a reasonable suspicion, the necessary predicate for police pursuit”. It should be noted, however, that even with such additional suspicion, flight may be of limited value as to demonstrating consciousness of guilt, and perhaps of no value without knowledge of the circumstances underlying the motive that precipitated it.
In other words, as long as there is some indicia of criminality, flight may elevate a common-law right to reasonable suspicion. It follows then, that flight following a mere request for information not otherwise predicated on an indicia of criminality is insufficient to provide reasonable suspicion.
Here, all the defendant did was exit the BMW and move “quickly away from the vehicle.” There is absolutely no testimony that he was observed making a furtive movement, grabbing his waistband, or doing anything indicative of criminality. Consequently, such flight, by itself, was entirely insufficient to provide the agents with reasonable suspicion justifying their pursuit and subsequent seizure.
Accordingly, this court finds that viewed in the light most favorable to the People, the arresting agents conducted a forcible stop of the defendant without having reasonable suspicion to do so. Consequently, the People failed to satisfy their burden of demonstrating by a preponderance of the evidence that the defendant’s arrest was lawful. Defendant’s motion to suppress is therefore granted in its entirety.
If you have been a victim of unlawful arrest and search, you need the advice of a Bronx Criminal Attorney in order to explain to you the consequences of unlawful arrest in criminal law. Bronx Drug Crime Attorneys at Stephen Bilkis and Associates can represent your case and make sure that the evidence unlawfully obtained against you will be suppressed.