The People, Respondent,v.John Gayden, Appellant.

Brief

N.Y.October 14, 2016

To Be Argued By: David R. Juergens Time Requested: 10 Minutes APL-2016-00006 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JOHN GAYDEN, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Date Completed: February 22, 2016 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii QUESTION PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 4 Point I: Because the County Court’s finding of “reasonable suspicion” for the police officer’s pursuit of John Gayden has no record support, the handgun dropped by Mr. Gayden during that pursuit should have been suppressed. 15 A. This appeal presents a reviewable question of law. 15 B. The first officer’s sole basis for approaching Mr. Gayden was an anonymous tip. 16 C. Neither the first officer nor the second officer confirmed Mr. Gayden’s “identity” as a suspect. 19 D. Neither the first officer nor the second officer confirmed the “criminality” suggested by the anonymous tip. 20 E. Because neither the first officer nor the second officer had a sufficient basis for a common-law right of inquiry, the second officer’s pursuit of Mr. Gayden was unlawful. 22 F. The proper remedy is suppression of the handgun and dismissal of the indictment. 28 CONCLUSION 31 i TABLE OF AUTHORITIES Federal Cases Florida v J.L., 529 US 266 (2000) ................................................................... 11, 16 Navarette v California, 572 US __, 134 S Ct 1683 (2014) ................................... 17 Terry v Ohio, 392 US 1 (1968) .............................................................................. 28 Ybarra v Illinois, 444 US 85 (1979) ...................................................................... 26 State Cases Matter of Shakir J., 119 AD3d 792 (2d Dept 2014) .............................................. 29 People v Abrams, 100 AD3d 1458 (4th Dept 2012) .............................................. 29 People v Argyris, 24 NY3d 1138 (2014) ............................................................... 17 People v Bachiller, 93 AD3d 1196 (4th Dept 2012) ............................................. 29 People v Benjamin, 51 NY2d 267 (1980) .............................................................. 21 People v Bora, 83 NY2d 531 (1994) ..................................................................... 25 People v Brown, 25 NY3d 973 (2015) .................................................................. 15 People v Brown, 115 AD3d 38 (1st Dept 2014) .................................................... 24 People v Cady, 103 AD3d 1155 (4th Dept 2013) .................................................. 23 People v Cantor, 36 NY2d 106 (1975) ............................................................ 23, 28 People v Chinchillo, 120 AD2d 266 (3d Dept 1986) ............................................ 27 People v De Bour, 40 NY2d 210 (1976) ......................................................... 15, 19 People v Garcia, 20 NY3d 317 (2012) .................................................................. 18 People v Gayden, 126 AD3d 1518 (4th Dept 2015) ........................................ 13, 14 People v Green, 35 NY2d 193 (1974) ................................................................... 21 People v Havelka, 45 NY2d 636 (1978) ................................................................ 27 People v Hicks, 68 NY2d 234 (1986) .................................................................... 25 People v Hollman, 79 NY2d 181 (1992) ................................................... 15, 18, 23 People v Holmes, 81 NY2d 1056 (1993) ............................................. 16, 22, 23, 24 People v Howard, 50 NY2d 583 (1980) ................................................................ 23 People v Ingram, 114 AD3d 1290 (4th Dept 2014) .............................................. 29 People v LaPene, 40 NY2d 210 (1976) ................................................................. 19 ii People v Leung, 68 NY2d 734 (1986) ................................................................... 22 People v Lypka, 36 NY2d 210 (1975) ................................................................... 27 People v Martin, 32 NY2d 123 (1973) .................................................................. 27 People v Martinez, 80 NY2d 444 (1992) ......................................................... 22, 23 People v May, 81 NY2d 725 (1992) ...................................................................... 23 People v Moore, 6 NY3d 496 (2006) .................................................. 17, 21, 26, 28 People v Otty, 223 AD2d 364 (1st Dept 1996) ...................................................... 27 People v Norman, 66 AD3d 1473 (4th Dept 2009) ............................................... 14 People v Riddick, 70 AD3d 1421 (4th Dept 2010) ................................................ 24 People v Robbins, 83 NY2d 928 (1994) ................................................................ 16 People v Sierra, 83 NY2d 928 (1994) ............................................................. 16, 23 People v Stewart, 41 NY2d 65 (1976) ................................................................... 26 People v Thomas, 115 AD3d 69 (1st Dept 2014) .................................................. 24 People v William II, 98 NY2d 93 (2002) ....................................... 11, 16, 21, 29, 30 People v Woods, 98 NY2d 627 (2002) .................................................................. 26 Statutes CPL Article 140 ..................................................................................................... 30 CPL 460.20 .............................................................................................................. 2 Constitutions NY Const art I, §§ 6, 12 ......................................................................................... 30 US Const Amend IV, V, XIV ................................................................................ 30 1 QUESTION PRESENTED An anonymous tipster reported seeing two black guys, one wearing “a black t-shirt,” one wearing “a white t-shirt with red letters,” walking back-and-forth near a specific street intersection. The tipster reported that each suspect was keeping a silver handgun near his waist area. Responding to a radio dispatch prompted by that tip, two police officers observed a black male in a black t-shirt and the defendant (John Gayden) on the sidewalk near a different street intersection. But, instead of a white t-shirt with red letters, Mr. Gayden wore a light-blue jacket with dark-blue sleeves and a dark shirt underneath. The first officer chased the black male wearing the black t-shirt. The second officer chased Mr. Gayden. Question: Did the second police officer (Antonio Jorge) have “reasonable suspicion” to believe that John Gayden was involved in any criminal activity when that officer began to chase Mr. Gayden? Answer: County Court: Yes. Appellate Division: Yes. 2 PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted on December 28, 2015 (Record [“R”] at 2), John Gayden appeals from an Order of the Appellate Division, Fourth Department, entered March 27, 2015 (R 6-7), affirming a judgment of conviction from the Monroe County Court, rendered on March 3, 2011 (R 9). Mr. Gayden’s motion to suppress evidence was denied by the Honorable Melchor E. Castro, Acting County Court Judge (R 260-269). By entering a guilty plea on the indictment (#2010-0527), Mr. Gayden was convicted of criminal possession of a weapon in the second degree (two counts) and in the third degree (R 207). The Honorable Vincent M. DiNolfo, County Court Judge, sentenced Mr. Gayden to five years in prison and five years of post-release supervision (R 9). Mr. Gayden is currently released and serving the post-release supervision portion of his sentence. Presumably, this Court will appoint the Monroe County Public Defender to represent Mr. Gayden on this appeal (see Motion for Assignment of Counsel, dated February 5, 2016]) (R 3-5). Pursuant to CPL 460.20, this Court has jurisdiction to decide the suppression issues presented on this appeal. These issues were preserved for appellate review 3 by the County Court’s denial (R 260-269), after a hearing (R 37-73, 87, 91-148), of Mr. Gayden’s written motion to suppress evidence (R 221-222, 243-244). 4 STATEMENT OF FACTS On June 11, 2010, sometime before noon, an anonymous male called 911 and reported observing “two black guys in the middle of Ellison Street [Rochester, New York] walking back and forth carrying silver colored guns on their waists. One individual was described as wearing a white tee shirt with red letters. The other was wearing a black tee shirt” (see County Court’s Decision) (Record [“R”] at 261). The anonymous caller stated that these two suspects were located near the intersection of Webster Avenue and Ellison Street (see Defense Exhibit B – 911 Recording).1 Two uniformed police officers, each driving a marked patrol car, responded to a police radio dispatch concerning this 911 call (R 41-42, 91-92). The record does not establish how much time passed between the 911 call and the police radio dispatch. The First Police Officer Officer Anthony Bongiovanni received a police radio dispatch “for two [black] males that had handguns in their waistbands” (R 92), one wearing a black t- shirt, one wearing a white t-shirt, walking together in the area of Ellison Street (R 93, 113). 1 A transcript of the 911 call, prepared by appellate counsel, is attached to this brief. 5 As Officer Bongiovanni drove eastbound on Bay Street, approaching the intersection of Bay and Ellison from the west, he saw Gregory Thacker and John Gayden (two black males) walking side-by-side on the west sidewalk of Ellison Street (several feet south of Bay Street) (R 93-94). They were walking southbound (toward Webster Avenue but roughly twenty-five houses to the north of Webster and Ellison) (R 131). Bongiovanni called over the radio that he “was on scene” and that he “had two males that fit the description” (R 103) (emphasis added). At the suppression hearing, however, Officer Bongiovanni opined that one male “fit the description and the other one had similarities for the description” (R 94) (emphasis added). Gregory Thacker matched one sparse description (black male wearing a black t-shirt) (R 93-94, 122). However, John Gayden did not “match” the other description contained in the police radio broadcast (black male wearing a white t-shirt) (R 93) (emphasis added). Instead, Gayden wore a light- blue jacket with dark-blue sleeves (R 135) and a dark shirt underneath that jacket (R 139). On direct examination, Officer Bongiovanni erroneously testified that Mr. Gayden wore “a white shirt” underneath the blue jacket, claiming that he could “see the shirt from the bottom of the jacket from the waist area” (R 94). On cross- examination, however, Bongiovanni was confronted with Gayden’s arrest photo and was forced to correct his earlier testimony. After reviewing that arrest photo, 6 Bongiovanni agreed that, under his jacket, Mr. Gayden was not wearing a white shirt. Instead, he wore a dark shirt (R 135-139). Moreover, Officer Bongiovanni admitted that the police radio dispatch contained no mention of anyone wearing any type of jacket and that the dispatch provided no specific physical description of the two suspects (other than race and gender) (R 113-114, 133-134). Nevertheless, because “they [supposedly] fit the description for males that were carrying guns,” Bongiovanni “had to stop them to see if they had guns on them” (R 95). But as Officer Bongiovanni drove eastbound on Bay Street, he did not turn right onto Ellison Street. Instead, he drove through the intersection and parked at the southeast corner of Bay and Ellison (R 42, 54). Bongiovanni “explained” that he was attempting to get closer to Thacker and Gayden so that he could stop them “but traffic got jammed up in that intersection” (R 94) so he “had to get out of his [patrol] car and approach them on foot” (R 94). Officer Bongiovanni did not engage his lights or sirens because he “didn’t want to spook the two males” (R 94-95). After exiting his patrol car “pretty quick” (R 119), Bongiovanni was about 50 to 60 feet away from Thacker and Gayden (R 95, 117). “They were on the west sidewalk of Ellison Street [now] about 20 yards south of Bay Street” (R 95). Immediately, Bongiovanni began to “slow-jog” diagonally toward the suspects, zigzagging around the cars that were in 7 his path (R 95-96, 117-119, 121). Once Bongiovanni “was on top of the sidewalk, on Ellison Street, [he] pulled [his] gun out” (R 117). In other words, upon reaching the sidewalk, Bongiovanni “pulled [his] gun out immediately” (R 118, 121). He drew his firearm because, a few seconds earlier, the two men “split up” and one of them (Gregory Thacker – a black male wearing a black t-shirt) began running (R 95, 119, 121). When he drew his firearm, Officer Bongiovanni could see Thacker enter the backyard of 711 Bay Street and head towards the rear of a garage (R 96-97, 118, 121). Gayden “continued southbound on Ellison Street. He walked off the sidewalk and into the middle of the street and he began a very fast walk in the middle of the street” (R 97, 118). Notably, Bongiovanni, before drawing his firearm, did not observe either man in possession of any weapon (R 134) or holding any objects in their hands (R 119, 140-141). As Gayden continued to walk away, Bongiovanni was shouting loud commands at Thacker (R 137-138). Officer Bongiovanni chased Thacker into the backyard, saw him bend over and put something under some leaves behind the garage. Bongiovanni aimed his firearm at Thacker, ordering him several times to show his hands. Thacker stood up and had a verbal confrontation with Bongiovanni. Thacker refused orders to get down on the ground (R 97-101). 8 While holding his gun on the uncooperative Thacker, Officer Bongiovanni could see Gayden “continuing to walk southbound on Ellison Street in the middle of the street” (R 101). Bongiovanni heard Gayden shout “Oh shit” as a second police officer (Antonio Jorge) exited his patrol car (R 102). As Gayden fled from Jorge, a handgun fell from Gayden’s waist area (R 102). This diversion allowed Thacker to escape from the backyard (R 104-105). But Thacker was arrested later that day at his home (51 Ellison Street) (R 106-107, 110-111, 123-125). The Second Police Officer On direct examination, Officer Antonio Jorge initially claimed that he received a police radio dispatch for “two male blacks with guns in the area of Bay and Ellison” (R 42) (emphasis added). However, on cross-examination, after reviewing his “IAR” [Investigative Action Report], Jorge acknowledged that the police dispatch actually had specified the “scene” as Webster Avenue and Ellison Street (R 58-60) (not Bay and Ellison). Jorge could not recall whether the police dispatch contained any clothing description for the suspects (R 53). Officer Jorge arrived at the “scene” (Webster and Ellison) about two minutes after receiving the police radio dispatch (R 54, 62). As Jorge drove north on Ellison Street (R 42), he heard another radio broadcast. “Officer Bongiovanni called out with two males at the corner of Bay and Ellison” (R 59). More specifically, Bongiovanni “called out on the radio that he was stepping out with 9 two individuals at Bay and Ellison” (R 59). In response, Jorge continued driving northbound toward Bay Street (R 42). Shortly thereafter, Officer Jorge observed Officer Bongiovanni on the southeast corner of Bay and Ellison (R 42-43, 54). Jorge saw Bongiovanni cross Ellison Street, moving toward two male blacks who were walking southbound on the west sidewalk of Ellison Street (R 54-55). Jorge first noticed the two pedestrians when Bongiovanni was “[m]aybe 15 feet away” from them (R 55). Jorge could not recall what kind of clothes the two men were wearing (R 54-55). Essentially, Officer Jorge (the receiving officer) was acting on the strength of Officer Bongiovanni’s earlier radio call (“that [Bongiovanni] was stepping out with two individuals at Bay and Ellison” [R 59] who supposedly “met the description” of the suspects [R 61]). Officer Jorge saw Thacker take off running with Officer Bongiovanni chasing him. When Thacker ran behind a house on Bay Street, Jorge momentarily lost sight of both Thacker and Bongiovanni (R 42-43, 56-57). Gayden kept walking southbound on Ellison. When Jorge stopped and exited his patrol car, Gayden took off running eastbound across Ellison Street and then northbound towards Bay Street. Jorge immediately ran after him (R 43-44, 57, 61-65, 68). As Officer Jorge chased Mr. Gayden, Jorge saw Officer Bongiovanni holding Thacker at gunpoint (R 57, 63, 66, 72-73). During the chase, Jorge saw a 10 handgun and a cell phone fall from Gayden’s waist area (R 45, 67-69, 72-73). Officer Jorge continued the chase, caught Gayden, handcuffed him and walked him back to the patrol car (R 45, 66-67). Officer Jorge acknowledged that he never saw any evidence of any gun on either individual until after he was actively pursuing Mr. Gayden and saw a black handgun2 fall from Gayden’s waist area (R 67-68). Officer Jorge also acknowledged that he exited his patrol car for the specific purpose of detaining Gayden (R 68). The County Court’s Decision For the most part, the County Court accurately described the testimony received at the suppression hearing.3 But the County Court, in a truly misleading fashion, only set forth the first officer’s uncorrected testimony about Mr. Gayden’s clothing: “Officer Bongiovani [sic] responded [to a police radio dispatch] by traveling to the intersection of Bay and Ellison and observed two adult black males walking side by side. One wore a black t-shirt and the other a black or blue jacket with a white shirt underneath.” Bongiovani [sic] radioed that he had two males matching the description a few feet south of Ellison and Bay” (R 261) (emphasis added). 2 The anonymous tip was for “silver” handguns (R 261). 3 The court did err, however, when it twice used the name “Gayden” (rather than “Thacker”) during its description of the backyard confrontation between Officer Bongiovanni and Gregory Thacker (R 262 - second paragraph, lines 4 and 5). 11 To be clear, neither the original 911 call nor the police radio dispatch contained any age description for the two suspects. Therefore, the observation of two adult black males was a non-confirmatory detail. Furthermore, neither officer observed a black jacket. It was undisputed that Gayden wore a light blue jacket with dark blue sleeves (R 145). Finally, and most importantly, the County Court never mentioned that Officer Bongiovanni, when confronted with Gayden’s arrest photograph, admitted that Gayden was not actually wearing a white shirt under his jacket. It was undisputed that Gayden wore a dark shirt underneath his blue jacket (R 139). Moreover, the County Court never mentioned another important fact that impacted the scope and intensity of the police intrusion: the first officer (Bongiovanni) drew his handgun as soon as he reached the west sidewalk of Elliott Street (R 262). For the most part, the County Court correctly stated the law: “To permit a forcible detention of a suspect based upon an anonymous tip, the police must corroborate both the identity of a suspect and the nature of the criminality (Florida v J.L., 529 US 266 [2000]; People v William II, 98 NY2d 93 [2002])” (R 265-266). But the County Court’s application of the law to the purported facts was seriously flawed. 12 With respect to corroborating the anonymous tip’s “identity of a suspect,” the County Court stated: “Here, the sex and race of the two individuals described by the tipster was confirmed. Their location on Ellison Street was also verified by the officer as was the clothing description which the police had been provided” (R 266) (emphasis added). But these specific conclusions were only partly accurate. True, both suspects were “male” and “black” and were observed “on Ellison Street.” But the suspects were twenty-five houses away from the broadcast “scene” of the reported criminality (Webster and Ellison, not Bay and Ellison) and were walking on the sidewalk (not back-and-forth “in the middle of Ellison Street” [R 261]). True, Gregory Thacker was wearing a black t-shirt (matching the rather meager clothing description contained in the anonymous tip). Nevertheless, contrary to the County Court’s determination, the anonymous tip’s “clothing description” for the second suspect was not “verified.” In other words, Gayden was not wearing either “a white shirt” - as described in the police radio dispatch (R 93) or a white t-shirt with red letters - as described in the 911 recording (see Defense Exhibit B) (R 138-139). With respect to corroborating the “nature of the criminality” suggested by the anonymous tip, the County Court stated: 13 “That the two [suspects] were engaged in the concealed criminal activity which the tipster alleged he saw was corroborated by the reaction the defendant’s [sic] had to the presence of Officer Bongiovani [sic] initially, and then to the appearance of Officer Jorge. When the defendants first observed Officer Bongiovani [sic] slowly jogging in their direction, the defendants split up with Thacker running away and Gayden walking briskly away. When Gayden looked in the direction of Officer Jorge, who was alighting from his vehicle. [sic] That defendant then crossed the street and began running in the opposition direction. Having corroborated the anonymous tip, the police were authorized to pursue the defendants and forcibly detain them” (R 266 [citations omitted]). “Since pursuit of the defendants was authorized, their subsequent abandonment of their weapons, while being lawfully pursued by the police, was an intentional relinquishment of the guns and deprives them of standing to contest their seizure” (R 266). Finally, the County Court concluded that: “The officer’s subsequent arrest of the defendant Gayden was lawful. Probable cause to arrest defendant Gayden materialized when he dropped a handgun from his waist” (R 266-267). The Appellate Division’s Decision The Fourth Department rejected Mr. Gayden’s argument on appeal “that County Court erred in refusing to suppress the weapon he discarded while he was being pursued by the police” (People v Gayden, 126 AD3d 1518 [4th Dept 2015]). The Court described the evidence presented at the suppression hearing: “[T]here was a radio dispatch concerning an anonymous tip that two individuals were carrying handguns in a certain location, and a police officer who arrived at the scene less than two minutes after the dispatch 14 observed that defendant and another individual matched the general description of the suspects and were within a block of the location described in the tip” (126 AD3d at 1518) (emphasis added). Based upon this [erroneous] determination (that Gayden “matched” the suspect description), the Fourth Department concluded that “[t]he [first] officer thus had a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant” and that “[d]efendant's flight upon seeing the [second] officer exit his vehicle provided the [second] officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant” (126 AD3d at 1518). Because “[d]efendant dropped the gun during the pursuit,” the second officer had “probable cause to arrest defendant” (126 AD3d at 1518). Thus, “‘the recovery of the gun discarded during [defendant's] flight was lawful inasmuch as the officer's pursuit . . . of defendant [was] lawful’” (126 AD3d at 1519 citing People v Norman, 66 AD3d 1473, 1474 [4th Dept 2009]). 15 Point I: Because the County Court’s finding of “reasonable suspicion” for the police officer’s pursuit of John Gayden has no record support, the handgun dropped by Mr. Gayden during that pursuit should have been suppressed. A. This appeal presents a reviewable question of law. In general, whether a police officer has “reasonable suspicion” to pursue someone is an unreviewable, mixed question of law and fact if there is support in record for the findings of the lower courts (see e.g. People v Brown, 25 NY3d 973 [2015]). On this appeal, however, the County Court’s finding, affirmed by the Appellate Division, that the police “confirmed” both John Gayden’s “identity” as a suspect and the “criminality” suggested by the anonymous tip, simply has no support in this record. In fact, with respect to Mr. Gayden, the police confirmed neither “identity” nor “criminality.” Mr. Gayden was not wearing a white t-shirt with red letters. He was not walking near Webster Avenue. He was not engaged in any suspicious behavior. He displayed no telltale signs of possessing any weapon. At most, the two police officers in this case had “an articulable reason” to approach Mr. Gayden for information (DeBour level 1) based upon his mere presence on Ellison Street and perhaps his mere proximity to Gregory Thacker (a black male wearing a black t-shirt) (see People v DeBour, 40 NY2d 210 [1976]; People v Hollman, 79 NY2d 181 [1992]). Importantly, neither police officer observed “other specific circumstances” 16 indicating that John Gayden was engaged in any criminal activity. Stated another way, with respect to Mr. Gayden, the People never elicited facts establishing a lawful predicate for a common-law right of inquiry (DeBour Level 2). Without such proof (“other specific circumstances” suggesting that Gayden was unlawfully possessing a weapon), his flight alone could not elevate the original predicate for police action (DeBour level 1) into “reasonable suspicion” for a forcible stop (DeBour Level 3) (see People v Holmes, 81 NY2d 1056, 1058 [1993]). Because all police intrusions must be justified at their inception and because the intruding police officer (Antonio Jorge) had no personal or imputed knowledge of any criminal activity before he began to chase John Gayden, the handgun, dropped during the unlawful pursuit, must be suppressed (compare People v William II, 98 NY2d 93 [2002]; People v Robbins, 83 NY2d 928 [1994]). B. The first officer’s sole basis for approaching Mr. Gayden was an anonymous tip. Where the predicate for police action is an anonymous tip, the People must show that the tip is “reliable in its assertion of illegality, not just in its tendency to identify a determinate person” (Florida v J.L., 529 US 266, 272 [2000]; People v William II, 98 NY2d 93, 99 [2002] [Suppression granted where the anonymous tip did not identify the defendant as a person possessing a weapon, the identified suspect was not dressed in manner that would permit him to conceal a weapon and 17 defendant’s flight from the scene did not provide reasonable suspicion to chase and frisk the defendant]). Recently, in the context of motor-vehicle stops, this Court has addressed certain issues surrounding the use of anonymous tips as a predicate for police action (People v Argyris, 24 NY3d 1138 [2014]). In a 4-3 decision, this Court decided to follow Navarette v California (572 US __, 134 S Ct 1683 [2014] [a 5-4 decision]) by holding that, under the particular facts of Argyris (involving the stop of a motor vehicle with a specific license-plate number), “the absence of predictive information in the [anonymous] tip was not fatal to its reliability” (24 NY3d at 1141; compare and contrast People v Moore, 6 NY3d 496 [2006] [involving the immediate frisk of a black male wearing a gray jacket and a red hat]). In Argyris, this Court focused on what facts could establish the reliability of an anonymous tip so as to authorize a motor-vehicle stop. Notably, in both Argyris and Navarette, the anonymous tipster provided a specific license-plate number for the target vehicle (see Argyris, 24 NY3d at 1144 [a black Mustang with a specific license-plate number]; see Navarette, 134 S Ct at 1686-1687 [silver Ford 150 pickup with license-plate #8D94925]). Moreover, as a practical matter, the police officers responding to the anonymous tips in Argyris and Navarette could not have exercised a common-law right of inquiry (asking the driver or passengers about the 18 substance of the tip) without making a motor-vehicle stop or endlessly following the vehicle until it eventually stopped. In Mr. Gayden’s case, however, this Court should focus on the sufficiency, rather than the reliability, of the anonymous tip. Here, even assuming that the tipster was an honest eyewitness to the reported criminality, the tip did not provide the responding police officers with legal authority to seize Mr. Gayden. Contrary to the hearing court’s determination (R 265-266), the police corroborated neither (1) Mr. Gayden’s “identity” as a suspect nor (2) the nature of the “criminality.” Based upon this complete lack of corroboration, the responding police officers had, at most, only an articulable basis for seeking information from Mr. Gayden (DeBour level 1) (see People v Hollman, 79 NY2d 181, 185 [1992] [explaining “that a request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination . . . [whereas] more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation . . . must be supported by a founded suspicion that criminality is afoot”]; see also People v Garcia, 20 NY3d 317, 324 [2012] [“a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot”]). 19 C. Neither the first officer nor the second officer confirmed Mr. Gayden’s “identity” as a suspect. Unlike motor vehicles (see Argyris and Navarette), people are not required by law to display a unique identifying number that permits law enforcement officers to access computerized information about them. Consequently, identifying suspect vehicles by license-plate number is presumably a more-accurate process than identifying suspect pedestrians by some aggregate of miscellaneous criteria. Here, the race and sex of the two individuals described by the anonymous tipster matched Gregory Thacker and John Gayden (two black males), but this match, standing alone, did not confirm their identity as suspects (compare People v LaPene, 40 NY2d 210, 225 [1976] [“a Black man with a red shirt” was a vague and general description providing “relatively little guidance”]). Importantly, no height, weight, age or other physical description of the suspects was provided by the anonymous tipster (R 133). True, one vague clothing description (a black t- shirt) did match Gregory Thacker. But the other clothing description (a white t- shirt with red letters) was an absolute non-match for Gayden (who wore a unique light blue jacket with dark blue sleeves and a dark shirt underneath). Even the “location” provided by the anonymous tipster did almost nothing to confirm Mr. Gayden’s “identity” as a suspect. Contrary to the hearing court’s conclusion (R 266), the specific “location on Ellison Street” was not “verified.” Both the 911 call and the police dispatch specified Webster Avenue and Ellison 20 Street as the designated area of travel (R 58-60). But Gayden was first observed only a few feet away from the intersection of Bay and Ellison (about twenty-five houses away from Webster Avenue) (R 93-94, 97, 131). Finally, while the record shows no other pedestrians in the specific area of this street encounter (the west sidewalk of Elliott Street near the intersection with Bay Street) (R 54-55), the People did not establish that the entire length of Elliott Street between Bay Street and Webster Avenue was completely devoid of pedestrian traffic. The first officer (Bongiovanni) did not travel down Elliott Street. The second officer (Jorge) simply responded to Bongiovanni’s stepping-out broadcast by immediately driving to the intersection of Bay and Elliott. The record does not reveal whether other black males wearing t-shirts were walking on Elliott Street. Notably, vehicular traffic at the intersection of Bay and Elliott was allegedly so congested that the first officer (Bongiovanni) decided to park his patrol vehicle at the southeast corner, exit “pretty quick” and “zigzag” around other cars clogging the intersection. D. Neither the first officer nor the second officer confirmed the “criminality” suggested by the anonymous tip. The testimony of the two police officers did not establish that the anonymous tip was “reliable in its assertion of illegality” – the alleged possession of handguns. Neither officer described this residential area as a “high crime” or 21 violent neighborhood. Neither officer observed any unusual behavior by the two pedestrians. No one was observed “in the middle of Ellison Street walking back and forth carrying silver colored guns on their waists” (see County Court’s description of the 911 call) (R 261). Instead, the two pedestrians were observed walking on a public sidewalk, in the middle of the day, with their hands at their sides, carrying nothing and displaying no telltale signs of firearm possession (no clothing “bulges” or gun “outlines”). Such observations cannot confirm the asserted illegality (see also People v Moore, 6 NY3d at 499 [The tip did not “accurately portray the alleged criminal activity”]; People v William II, 98 NY2d 93, 97 [2002] [Contrary to the anonymous tip, the identified suspect was not dressed in a manner that would “permit concealment of a weapon”]). Significantly, the anonymous tip here did not report that the alleged guns had been used to commit an independent crime (see People v Green, 35 NY2d 193, 196 [1974] [“There is a difference of significant degree between a report only that a person has a gun in his possession and another report that a person not only has a gun but that he has just used it for the commission of a crime”]). And there were no movements suggesting any attempt to conceal a weapon or imposing any type of threat (contrast People v Benjamin, 51 NY2d 267 [1980]). 22 The County Court’s sole basis for finding a confirmation of the “criminality” was the “reactions” of Gregory Thacker and John Gayden: “That the two were engaged in the concealed criminal activity which the tipster alleged he saw was corroborated by the reaction the defendant’s [sic] had to the presence of Officer Bongiovani [sic] initially, and then to the appearance of Officer Jorge” (R 266). But the County Court erroneously conflated the analysis of two separate individuals and, in the process, ignored the well-established rule that flight, standing alone, cannot establish criminality (see People v Holmes, 81 NY2d 1056, 1058 [1993]). Relying upon its flawed conclusion that Mr. Gayden matched the anonymous tipster’s description of the second suspect (a black male wearing a white t-shirt with red letters), the County Court erroneously concluded that Gayden’s conduct (“walking away briskly” from Officer Bongiovanni and running away from Officer Jorge) “corroborated the anonymous tip” and authorized the police to pursue and forcibly detain Gayden (R 266). E. Because neither the first officer nor the second officer had a sufficient basis for a common-law right of inquiry, the second officer’s pursuit of Mr. Gayden was unlawful. The legality of police pursuit is determined by the following rule: “the police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime” (People v Martinez, 80 NY2d 444, 446 [1992]; see also People v Leung, 68 NY2d 734, 736 [1986]). 23 “Police pursuit of an individual ‘significantly impede[s]’ the person’s freedom of movement” (People v Holmes, 81 NY2d 1056, 1057-1058 [1993]). “Because the resulting infringement on freedom of movement is similar, both forcible stops and pursuits require the same degree of information to justify them” (People v Martinez, 80 NY2d at 447 [“Forcibly detaining someone, or pursuing them for the purpose of detaining them” requires reasonable suspicion of criminal activity]; compare People v Hollman, 79 NY2d 181, 185 [1992] [A forcible stop is constitutional only if the police have a “reasonable suspicion that a particular person was involved in a felony or misdemeanor”]; see also People v Cantor, 36 NY2d 106, 112-113 [1975] [“Reasonable suspicion is the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand”]). Flight alone is insufficient to justify pursuit because an individual has a right “to be let alone” and, therefore, may refuse to respond to police inquiry (People v Howard, 50 NY2d 583, 591-592 [1980]; People v May, 81 NY2d 725, 728 [1992]; People v Holmes, 81 NY2d 1056, 1058 [1993]). However, flight in response to an approach by the police, when combined with other specific circumstances suggesting a person’s involvement in criminal activity, may give rise to reasonable suspicion (People v Sierra, 83 NY2d 928, 929 [1994]; see also People v Cady, 103 24 AD3d 1155, 1156-1157 [4th Dept 2013]; People v Riddick, 70 AD3d 1421, 1422 [4th Dept 2010]). But if these “other specific circumstances” are “equivocal” or “readily susceptible of an innocent interpretation,” then they are insufficient to justify police pursuit (People v Holmes, 81 NY2d at 1058 [Flight is insufficient to justify pursuit even where equivocal circumstances might justify a police request for information]; People v Thomas, 115 AD3d 69, 72 [1st Dept 2014] [“Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion”]; People v Riddick, 70 AD3d at 1422 [Innocuous actions and those readily susceptible of an innocent interpretation “may not generate a founded suspicion of criminality”] [citation omitted]; People v Brown, 115 AD3d 38, 40 [1st Dept 2014] [“Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion”]). In Mr. Gayden’s case, the street encounter with the police was two-fold: Officer Bongiovanni’s aggressive “slow-jog” and Officer Jorge’s sudden appearance, immediate exit and immediate pursuit. While Officer Bongiovanni was driving eastbound on Bay Street, he observed Gregory Thacker and John Gayden on the west sidewalk of Ellison Street. The record does not establish that these two pedestrians were walking together for any appreciable length of time. Immediately, Officer Bongiovanni 25 called over the radio that he was on scene [not really accurate] and that he “had two males that fit the description [only accurate for Thacker]. Thereafter, Bongiovanni, armed and in uniform, stopped his police car, exited “pretty quick,” zigzagged through traffic and “slow-jogged” toward the two pedestrians. The police officer’s obvious urgency would likely have induced a reasonable person to believe that a significant limitation on his or her freedom of movement was about to take place (People v Hicks, 68 NY2d 234, 240 [1986] [applying an objective, reasonable-man standard]). This “slow-jog” was police conduct somewhere in the twilight zone between an “approach” and “pursuit” (compare People v Bora, 83 NY2d 531, 535 [1994] [“There are no bright lines separating various types of police activity”]). Certainly, one permissible inference is that the officer was trying to “sneak up” behind the two pedestrians. Otherwise, he would have simply turned right onto Ellison Street (rather than driving through the intersection and parking his patrol car on the southeast corner). In its decision, the County Court completely ignored the uncontested fact that Officer Bongiovanni drew his weapon as soon as he reached the west sidewalk of Ellison Street, only a few seconds after Thacker ran, and then shouted loud commands at Thacker as the chase began. Bongiovanni’s aggressive conduct, coupled with the drawing of his weapon before opting to chase Thacker (rather than requesting information from Gayden) was an important, initial phase of the 26 police/citizen encounter that culminated with Officer Jorge’s unlawful pursuit of Gayden. For Gregory Thacker (a black male wearing a black t-shirt), the encounter became a seizure once Officer Bongiovanni drew his weapon, shouted loud commands at Thacker and chased him into a backyard (compare People v Moore, 6 NY3d 496, 499 [2006]). Arguably, Bongiovanni had a common-law right of inquiry to approach Thacker for “more-pointed” questioning, because, even though Bongiovanni had observed no indicia of criminality, Thacker did fit the suspect description (see People v Stewart, 41 NY2d 65, 66 [1976]). Arguably, when Thacker fled, the officer’s founded suspicion of criminal activity (DeBour level 2) ripened into reasonable suspicion for police pursuit (DeBour level 3). Indeed, this Court has even affirmed a lower-court finding of reasonable suspicion where the defendant matched the description of the purported victim but, upon approach, fled from the police (see People v Woods, 98 NY2d 627 [2002]). But neither police officer in this case had reasonable suspicion to pursue John Gayden because (1) Gayden did not fit the suspect description and (2) neither officer had observed any indicia of criminality. Moreover, Mr. Gayden’s mere proximity to Gregory Thacker did not provide any legal basis for police intrusion (compare Ybarra v Illinois, 444 US 85, 91 [1979] [“a person’s mere propinquity to others independently suspected of 27 criminal activity does not, without more, give rise to probable cause to search that person”]; People v Martin, 32 NY2d 123, 125 [1973] [A person cannot be arrested “for merely being in the company of” others who may have committed a crime]; People v Chinchillo, 120 AD2d 266, 268 [3d Dept 1986] [A person cannot be frisked for merely standing next to another person arrested on a warrant]; People v Otty, 223 AD2d 364, 365 [1st Dept 1996] [same]). Because the predicate for police intrusion must be particularized with respect to each individual, an inference of “guilt by association” is impermissible. Certainly, the fellow-officer rule would allow imputation of the first officer’s knowledge to the second officer (essentially allowing the second officer to step into the shoes of the first officer). But this imputed knowledge, even when coupled with the second officer’s own observations, did not provide the second officer with “reasonable suspicion” to chase Mr. Gayden. Personally, the first officer (Bongiovanni) did not observe any objective indicia of criminality. He only saw Gayden fast-walk away from the initial police/citizen encounter. Thus, imputing the first officer’s personal knowledge to the second officer (via the first officer’s broadcast about “stepping out with two individuals” who allegedly met the suspect description) (R 59, 61) did not cloak the second officer with lawful authority to chase the defendant (see People v Havelka, 45 NY2d 636, 641-642 [1978]; People v Lypka, 36 NY2d 210, 213-214 28 [1975] [discussing the fellow-officer rule]). In other words, because the first officer (Bongiovanni) could not have lawfully chased Gayden, the second officer (Jorge) was in no better position. F. The proper remedy is suppression of the handgun and dismissal of the indictment. Both the County Court and the Appellate Division found that the second officer began chasing Mr. Gayden before the gun was dropped. This finding was based upon the second officer’s unequivocal testimony that he started running as soon as the defendant started running (R 73). The second officer (Jorge) was very clear on this point: Q. You began to pursue him after the gun was dropped? A. No, once he started running. Because he did cross - - he did cross Ellison from the east - - from the west side of Ellison to the east, and then northbound. So I began to run once he took off running (R 68). The relevant inquiry is “whether the officer’s action was justified at its inception” (Terry v Ohio, 392 US 1, 20 [1967]; compare People v Cantor, 36 NY2d 106, 111 [1975] [When determining whether the police had the requisite “reasonable suspicion,” only the information known to the police officer before the forcible stop is relevant]; compare People v Moore, 6 NY3d 496, 498 [2006] [Defendant’s later conduct, a movement toward his waistband as he raised his arms, “cannot validate an encounter that was not justified at its inception”]). 29 “Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion” (People v William II, 98 NY2d 93, 98 [2002]; compare Matter of Shakir J., 119 AD3d 792 [2d Dept 2014] lv denied 24 NY3d 916 [2015] [The police pursuit was unlawful because “the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun”]; compare People v Ingram, 114 AD3d 1290, 1292 [4th Dept 2014] [Suppression granted where the officer “did not see a bulge or the outline of a weapon in defendant’s jacket until after he began to pursue defendant”]; contrast People v Abrams, 100 AD3d 1458, 1459 [4th Dept 2012] [Suppression denied where the police officers “clearly observed the outline of a handgun in the defendant’s sweatshirt” and pursued the defendant after he “turned and ran, dropping the handgun as he fled”]; contrast People v Bachiller, 93 AD3d 1196, 1197-1198 [4th Dept 2012] [Suppression denied where two police officers, before chasing the fleeing defendant, observed him grab an object, thought to be a gun, that was concealed in his waistband]). Officer Jorge’s pursuit simply cannot be justified “after the fact.” It was a direct response to Mr. Gayden’s flight and the pistol was dropped only after the chase had already begun. Because Officer Jorge did not have reasonable suspicion for his pursuit of Mr. Gayden, the appropriate remedy is reversal and suppression 30 of the tainted evidence (a pistol dropped during an unlawful police pursuit) (US Const, Amend IV, V & XIV; NY Const, article I, §§ 6, 12; CPL Article 140). Because the suppressed evidence is necessary to support the charges (criminal possession of a weapon), the proper remedy is to dismiss the indictment (People v William II, 98 NY2d 93, 100 [2002]). To Be Argued By: David R. Juergens Time Requested: 10 Minutes APL-2016-00006 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JOHN GAYDEN, Appellant. _______________________ __________________________________________________________________ ATTACHMENT TO BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Date Completed: February 22, 2016 _________________________________________________________________ TABLE OF CONTENTS PAGE Defendant’s Exhibit B, 911 transcript ................................................................... 1-2 1 COURT OF APPEALS - People v John Gayden – APL-2016-00006 Defendant’s Exhibit B (marked received into evidence on 12/10/10) (Transcript prepared by appellate counsel) 911 Operator: 911 Center. Anonymous: [Garbled] I got, I seen two black guys, standing around, on Webster ‘n Ellison. 911 Operator: Okay. And what are they doing? Anonymous: They acting like they got guns on ‘em. 911 Operator: Ah, what are they wearing? Anonymous: White t-shirts. 911 Operator: Both of ‘em? Anonymous: No. One got a white t-shirt with red letters. The other one got a black t-shirt. 911 Operator: And how do you know they have any weapons on them? Anonymous: I seen it. 911 Operator: What color were the weapons? Anonymous: Silver. 911 Operator: Where are they keepin’ ‘em? Anonymous: Waist. 911 Operator: And are they actually on Webster or on Ellison? Anonymous: Ellison. In the middle. 2 COURT OF APPEALS - People v John Gayden – APL-2016-00006 Defendant’s Exhibit B (marked received into evidence on 12/10/10) (Transcript prepared by appellate counsel – page 2) 911 Operator: Are they walking? Anonymous: Yep. 911 Operator: And what are they walking towards? Anonymous: They’re back and forth. 911 Operator: They’re just walking back and forth? Anonymous: Uh-hem. 911 Operator: Okay. Do you know these guys? Anonymous: Nope. 911 Operator: Your name and number? [no answer] 911 Operator: Sir? [no answer] * * * [Thereafter, background noise completes the recording]