The People, Appellant,v.Robert L. Ingram, Respondent.

Brief

N.Y.December 10, 2014

r r’-V LJi) irt [L P - - !MAY 17 r 1:03 Tobearguedby: SHERRY A. CHASE Buffalo, New York (716) 853-9555 Estimated time: 10 Minutes STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION FOURTH JUDICIAL DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs ROBERT TNGRAM, Respondent. BRIEF FOR RESPONDENT Erie County Indictment No. 00668-20 12 Docket No. KA 13-00437 DAVID C. SCHOPP Attorney for Respondent THE LEGAL AID BUREAU OF BUFFALO, INC. 237 Main Street - Suite 1602 uffaIo, New York 14203 BARBARA J. DAVIES Chief Attorney Appeals Unit SHERRY A. CHASE, of Counsel TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii QUESTIONS PRESENTED 1 NATURE OF THE CASE AND FACTS 2 ARGUMENT POINT I 4 THE TRIAL COURT PROPERL YR ULED TO SUPPRESS PHYSICAL EVIDENCE AND STA TEMENTS STEMMING FROM THE UNLA WFUL PURSUIT AND DETENSION OF RESPONDENT IN VIOLATION OF HIS RIGHTS UNDER THE US. CONSTITUTION, FOURTH AMENDMENT AND THE NEW YORK CONSTITUTION, ARTICLE I,]2 4 CONCLUSION 15 TABLE OF AUTHORITIES CASES People v Bachiller, 93 AD3d 1194 13, 14 People v Belton, 50 NY2d 447 5 People v Benjamin, 51 NY2d 267 11 People v Cady, 103 AD3d 1155 13 People v Davis, 48 AD3d 1120 4 PeoplevDeBour, 4ONY2d 210 6,7,9,10,12,13 Peoplev Grant, 164AD2d 170 7,8,10 People vHolmes, 81 NY2d 1056 6 People v Howard, 50 NY 2d 583 5 People v Johnson, 167 AD2d 880 5 PeoplevLaPene,40NY2d210 6,13 People v Madera, 189 AD2d 462 6 People v Martinez, 80 NY2d 447 14 People v McFadden, 136 AD2d 934 5 People v Pines, 99 NY2d 525 7, 11 People v Powell, 246 AD2d 366 10 People v Prochilo, 41 NY2d 759 4 People v Ramirez, 88 NY2d 99 5 11 People v Riddick, 70 AD3d1421.10 People v Robbins, 83 NY2d 928 10, 12 People v Sierra, 83 NY2d 928 12 People v Stephens, 47 AD3d 586 11 STATUTES CPL 140.50 (1) 5, 6 Penal Law § 265.03 (3) 2 CONSTITUTIONAL PROVISIONS NYConst.,ArtI,12 4,5 US Const., Amend. TV 4, 5 111 QUESTIONS PRESENTED 1. Was the court below correct in granting suppression when, without a founded suspicion that criminal activity is afoot, police pursued and apprehended respondent, removed a gun in his possession and obtained incriminating statements? Answer: The suppression court granted defendant-respondent’s motion finding the arrest unlawful because the police did not have a founded suspicion that criminal activity was afoot, much less a reasonable suspicion that a crime was taking place. 1 NATURE OF THE CASE AND FACTS This is an appeal from an order entered on November 30, 2012, in Erie County Supreme Court (Buscaglia, J.), granting respondent’s motion to suppress a handgun and statements made by respondent to the police. By Erie County Indictment Number 00668-2012, respondent was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). A hearing was held to consider respondent’s motion for suppression of a handgun and statements made to police on March 25, September 17 and September 19, 2012. In a Decision and Order (Buscaglia, J.), granted November 30, 2012, the court suppressed the gun found in respondent’s possession and the statements he made to police. The court held that the People had failed to meet the minimal standard of demonstrating that the police had a founded suspicion to intrude on respondent’s liberty. Police based their escalating intrusion solely on the expression in respondent’s eyes, his lack of response to a police officer’s question, and his walking and then running away while pulling at something in his pocket. The court deemed a tip that there were guns behind a nearby house to be unreliable and, in any event, not a factor which would have heightened the level of permissible intrusion to such an extent as to cause the police conduct to be justified. Similarly, that the police intrusion occurred in a high crime neighborhood in the middle of the afternoon did not contribute to the equation where there was no information of criminal activity in progress. Further facts will be discussed in Point I. 2 The People have been represented throughout the proceedings by the District Attorney of Erie County. Respondent is represented by the Legal Aid Bureau of Buffalo, Inc. 3 ARGUMENT POINT I THE TRIAL COURT PROPERLY RULED TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS STEMMING FROM THE UNLAWFUL PURSUIT AND DETENSION OF RESPONDENT IN VIOLATION OF HIS RIGHTS UNDER THE U.S. CONSTITUTION, FOURTH AMEND MENT AND THE NEW YORK CONSTITUTION, ARTICLE I, § 12. This case, like others decided by this Court in recent times, requires the Court to reject the unwarranted infringement of an individual’s liberty by law enforcement. Pursuit and seizure of an individual without legitimate basis, as occurred in this case, is precisely the conduct the Fourth Amendment was designed to prevent. Appellant wrongly suggests that, when taken together, respondent’s innocuous behavior — bulging eyes, unresponsiveness to police, vigorous motion in his pocket, running away — created a criminal suspicion that rendered the police conduct lawful. The trial court granted respondent’s motion to suppress a hand gun and statements finding that the circumstances surrounding the police pursuit of respondent at gunpoint were insufficient to justify the infringement of his rights. (9; Numbers in parentheses refer to pages in the record on appeal) “Great deference” must be given to the findings and determination of the suppression court. People v Davis, 48 AD3d 1120, 1122, citing People v Prochilo, 41 NY2d 759, 761. 4 The court properly found respondent had standing to challenge the propriety of the search of his body and the seizure of the gun (People v Ramirez), 88 NY2d 99 because respondent had a “reasonable expectation of privacy in his person and the clothes he wears” (8). “The privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field.” People v Howard, 50 NY 2d 583, 588, quoting, People v Belton, 50 NY2d 447. “That privacy interest is protected by the mandate of the Fourth Amendment to the United States Constitution and section 12 of article I of our State Constitution, both of which, in identical language, state: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Id. at 588. The record plainly establishes that the officers’ aggressive conduct bore no relationship to the legally permissible level of intrusion or to a legitimate concern for safety and was, instead, a blatant abrogation of respondent’s Fourth Amendment rights. Finding that the officers were not authorized to pursue respondent, the trial court concluded that “[t]he coercive measures taken by Officer Beyer, both verbal and physical in chasing the defendant and drawing his gun constituted a seizure of the defendant.” (10; citing People v Johnson, 167 AD2d 880 and People v McFadden, 136 AD2d 934). CPL 140.50(1) states: [A] police officer may stop a person in a public place when he reasonably suspects that such a person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor.. . and may demand of him his name, address and explanation of his conduct... 5 Here, there was no reason to suspect that the respondent and his companion, a man named “Pratt”, were involved in any criminal activity and, therefore, by the terms of CPL 140.50 (1), there was no legitimate basis to pursue and seize him. According to the officers, they had gotten a tip several hours earlier that there were guns behind a house at number 118 Montana Street (144). The house closest to where respondent stood was number 116 (96-99, 94, 114). (There was also testimony that they stood near number 118 (71, 72,150), but the court did not credit that evidence.) The officers first observed Pratt and respondent standing on Montana Street, at the curb (99). The patrol car, on routine patrol, turned onto Montana Street and the men crossed the street. Officers Beyer and Sharpe testified that the two men “looked like they might be coming from that vicinity” (i.e. of the house named by the unreliable informant) (72, 94). Officer Sharpe, the driver, called out to Pratt, who came over to speak with him. Respondent started to walk away (75). Officer Beyer, on the passenger side of the vehicle, noticed that respondent had left Pratt and was walking down the street. Beyer called out to him (75). Respondent continued to walk away without responding to Beyer, as was his right. See People v Holmes, 81 NY2d 1056 (defendant had right to ignore police effort to question him); People v Madera, 189 AD2d 462 (defendant entitled to seek to avoid approaching police when no reason to suspect criminal activity). In People v DeBour, 40 NY2d 210, and its companion case, People v La Pene, the Court of Appeals set out the standard for constitutionally permissible police conduct, based on the principle that heightening levels of infringement of liberty are permissible when directly related to heightening reasonable belief that criminality and 6 safety issues are present. A principal aspect of the criteria holds that, even as an encounter develops, analysis of the police conduct requires that it must be lawful from its inception. Id. at 221, 222. Once the police conduct exceeds the level of permissible intrusion, the ultimate seizure of defendant is tainted and any subsequent appropriate police conduct toward defendant does not remedy the previous unlawful conduct. People v Grant, 164 AD 2d 170, 173 (court finds police conduct unlawful at point of initial stop and subsequent pursuit). Consequently, the analysis of the propriety of the trial court’s ruling is complete once the intrusion is deemed excessive. The trial court found that the police had exceeded the permissible level of intrusion at the point when Beyer got out of the patrol car, called to the departing respondent again and began to follow him. Officer Beyer’s suspicions were aroused by his observation that respondent’s eyes had gotten very big at the sight of him (75) and that he had walked away (75). The meaning he may have ascribed to the behavior he saw was not well-founded. See People v Pines, 99 NY2d 525 (bulging eyes insufficient basis for suspicion); DeBour, supra (movements attributable to innocuous behavior will not heighten the level of permissible intrusion). Neither officer had any information or suspicion that criminal activity was afoot. At most, the circumstances provided Beyer with the first level of intrusion under DeBour: the ability to request information. The trial court correctly found, that Beyer lacked a level two-founded suspicion basis to make any further intrusion (10). Under DeBour, the right to inquire in level two is “activated” by “a founded suspicion that criminal activity is afoot and permits 7 a somewhat greater intrusion than level one; police are entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” Id. at 223. The trial court here held that there was no founded suspicion of criminal activity to justify the police pursuit of respondent (10). Beyer saw respondent walking away swiftly and, although he lacked level two-founded suspicion that criminal activity was afoot, he got out of the patrol car and shouted to respondent. He testified that he did this because he wanted to see why. respondent was going away so quickly (75). This was an attempt at impermissible inquiry. By exiting the cruiser and shouting after a man who was exercising his right to walk away, Beyer had exceeded the permissible degree of intrusiveness of level one. See Grant, supra. In its decision, the trial court addressed the factual basis for its fmding that the police had reached but did not surpass the first level of intrusion: The events leading up to the street encounter with defendant and Christopher Pratt were innocuous. There were no complaints of any criminal activity in progress and the defendant was not engaged in any criminal activity. The neighborhood’s reputation as a high crime area by itself does not justify police interference with a person’s privacy or liberty interests (citations omitted). The information provided by an unnamed person arrested earlier that day to Officer Sharpe concerning guns located in a shed behind 118 Montana Street was not sufficiently reliable to create exigent circumstances or a public safety emergency warranting police interference with the defendant and Pratt. There was no information about the types of guns, whether they were loaded and operable or the circumstances surrounding their possession. Furthermore, the informant was arrested for criminal activity and, therefore, his credibility was suspect since his information was not a declaration against his penal interest. Therefore, the officers’ initial approach of the defendant should have been limited to a request for information 8 Level 1 under People v DeBour (citation omitted). (8, emphasis added.) By the officers’ own admissions, the mere presence of the two men on the street in the middle of the afternoon, even in a high crime neighborhood, with no radio call or observation of criminal activity, had not caused them to suspect that criminal activity was afoot. When asked about the basis for his suspicion at the hearing, Sharpe stated, “Just that it looked like they were coming from that address” (145). When asked whether they had seen anything suspicious, Sharpe said, “Just the general fact that we were going down the street to investigate 118 Montana and they were coming from that vicinity (150). The trial court rejected the opportunity to attribute any significance to the tip that there might be guns behind 118 Montana Street because it did not find the information reliable or relevant; the informant was unfamiliar to the police, his information was limited and it was offered at the time of his arrest hours earlier in a different location (8). Moreover, the court found that when the police turned the corner and first spotted respondent and Pratt standing at the curb nearest to 116, not 118 Montana Street (6). There was nothing suspicious about their behavior (94). The trial court rightly rejected appellant’s argument that the vigorous movement of respondent’s hand in his pocket while he was running, was a basis for heightened police intrusion. Beyer testified that when he saw respondent put his hand in his pocket, he yelled at him not to “do it” and then drew his own gun. Of critical importance, is the fact that, although respondent wore a thin jacket, neither officer saw a bulge or the outline of a gun. Respondent vigorously grabbed at his pocket and ran away 9 (75-76). Beyer, gun drawn, ran after respondent (76-77). But the movement of respondent’s hand in his pocket was innocuous as it was “readily susceptible of an innocent interpretation.” Therefore, it “may not generate a founded suspicion of criminality.” People v Riddick, 70 AD3d 1421 (reaching for waistband without any indication of a weapon deemed innocuous conduct), citing People v Powell, 246 AD2d 366, 369. Courts have consistently held that, absent some sign of a gun’s presence, merely moving a hand toward a waistband or in a pocket is an insufficient basis for a heightened response. Riddick, supra. In People v Grant, supra, the police were following a car when they saw a man jump from the moving car, clutch his waistband and run. The court held that mere “clutching,” without a visible bulge, was an insufficient basis for police pursuit. Likewise, in People v Robbins, 83 NY2d 928, the court held that defendant’s exiting a vehicle and running away while holding his waistband did not justify police pursuit. The DeBour court noted that waistbands were inherently more suggestive than pockets because, while guns are typically kept in waistbands where they may be observed as bulges, a bulge in a pocket is susceptible of many different explanations. 4. at 221. As discussed, neither officer saw the outline of a gun and should not have speculated about the contents of respondent’s pocket. Without more, the police were not entitled to permit the presence of respondent’s hand in his pocket to serve as justification for chasing and seizing him. The suppression court found the role of the pocket critical: .LH]e wore a thin jacket that did not conceal much and Officer Beyer saw no telltale sign of a gun or dangerous contraband prior to taking coercive measures and pursuing defendant. Neither Officer Beyer or Sharpe 10 saw a bulge, the outline of a gun or any other indicia of criminal activity on the part of the defendant before they ordered him to stop and yelled not to do it. Under the circumstances, their pursuit and eventual forcible seizure of him was unlawful. (9, emphasis added.) In an effort to support their premise that respondent could be pursued for moving his hand vigorously in his pocket, the People cite cases that are readily distinguishable: People v Benjamin, 51 NY2d 267 (where likelihood of recent criminal activity by radio call in conjunction with defendant reaching into waistband with two hands and backing away entitles police to heightened response); People v Stephens, 47 AD3d 586 (where defendant walking behind another man in high crime area at night, clutching waistband and keeping his arm immobile against it even before awareness of police, then looking startled upon spotting police and running, all together, provide basis for heightened intrusion); People v Pines, 99 NY2d 525 (where after seeing police, eyes bulge out, defendant reaches up to his jacket and, with a cupping motion, holds it, and runs when police attempt to question him, deemed basis for heightened police response). These cases stand for the proposition that the extent and manner of concealment, as well as the attending circumstances, bear on whether a court will find the police conduct disproportionate to the likelihood of criminality. The cases cited by appellant serve to contrast the circumstances where heightened intrusion was actually warranted with the present case. The readily discernible distinction in each case supports respondent’s assertion that the police officer, having no reason to believe that criminal activity was afoot, lacked any basis for exiting the patrol car, calling out to respondent a 11 second time when he had already started to walk away and then, drawing his gun and chasing him. As with the cases cited above by appellant, courts determine the appropriate level of permissible intrusion by considering the totality of the circumstances. In People v Sierra, 83 NY2d 928, upon which appellant relies, defendant was seen calling to a man who had just exited a vehicle with New Jersey plates. The officers were aware that they were in a high crime area known to provide New Jersey customers with drugs. They observed defendant calling out to a man who had exited his car and started looking around. The officers had reason to believe that they were observing the beginning of a drug-related crime. It was this behavior coupled with defendant’s failure to respond and subsequent flight, the totality of the circumstances, that gave police the right to pursue and detain defendant. In the companion case to Sierra, People v Robbins, supra, the court found that even though defendant had clutched his waistband and run away, pursuing him was impermissible because, by the totality of the circumstances, there was no indication of criminal activity. It is important to note that appellant cites cases discussing “reasonable suspicion,” a DeBour level three determination, although the trial court found that the police had failed even to meet the level two determination of “founded suspicion.” This refocusing erroneously moves the discussion about the propriety of the police response to midway into the encounter, after the initial unlawful intrusion has taken place. This 12 approach is contrary to the holdings in DeBour, La Pene and their progeny, which require the intrusion to be lawful from the inception of the encounter. . at 221-223. Reasonable suspicion that a crime has been or is about to be committed is required before it is permissible for police to chase someone down the street at gunpoint. This Court’s recent holding in People v Cady, 103 AD3d 1155, is precisely on point. There, the defendant was seen a block from where a shooting had taken place several hours before. Police approached the defendant to question him and the defendant changed directions and walked away. Then, he moved his hand toward his waistband and he ran away. The officer ran after him and saw the defendant discard a gun. The court found that flight together with reaching for a waistband was not enough to provide reasonable suspicion, the level necessary to permit a lawful pursuit of defendant. These are the facts before the Court in the present case except that instead of a waistband, respondent’s hand motion was directed to something more innocuous, his pocket. Appellant’s reliance on People v Bachiller, 93 AD3d 1194, is unavailing. The underlying facts which determined the court’s finding of impermissible infringement, are decidedly different than in the present case. The ruling in Bachiller is based on a totality of the circumstances, of which there were many. The police responded to a call of a stabbing incident and arrived to fmd 100 people in the street. They observed the defendant arguing with and then chasing another man. When defendant saw the police, he changed directions, walked quickly away and then ran. The police observed defendant holding an object in his waistband “that appeared to be a gun” . at 1198. The court found the police had reasonable suspicion to pursue and seize defendant. 13 Nothing about Bachiller contravenes the decision of the trial court. The presence of respondent’s hand in his pocket, without more, did not provide Beyer with reasonable suspicion to believe that a crime had been or was about to be committed and to chase respondent with his gun drawn. Respondent maintains, that the court below correctly decided that the police made an unlawful arrest based on an intrusion deemed impennissible for lack of founded suspicion. At every point in this encounter, until the end of the chase when the officers tackled respondent in a field and seized a gun, Beyer and Sharpe lacked a founded suspicion that respondent had committed or was about to commit a crime. Even if the court had held that the officers had the circumstances necessary to justify making a level two - founded suspicion infringement, the police conduct would still have been unlawful. Chasing respondent was such an infringement of his liberty that Beyer’s conduct could only have been lawful if the circumstances had legitimately provided police with a reasonable suspicion that respondent was committing or about to commit a crime, a level three intrusion. See People v Martinez, 80 NY2d 447. The officers’ conduct ran afoul of established legal guidelines designed to protect the individual’s right to privacy. They acted without the foundational basis necessary to support the extent of their interference with respondent’s liberty interest. Accordingly, the order below must be affirmed. 14 CONCLUSION WHEREFORE, respondent Robert Ingram requests that this Court affirm the ruling of the trial court, which granted the motion to suppress the physical evidence illegally seized by the police and suppressed the statements made by respondent to the police, and grant such other relief as this Court deems just and proper. Respectfully submitted, By his Attorney DAVID C. SCHOPP Dated: Buffalo, New York May 17, 2013 SHERRY A. CHASE, of Counsel 15