PEOPLE v. FRANCOIS (2009)

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered January 29, 2008, convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 1 1/212 to 3 years, affirmed.

 The court properly denied defendant's suppression motion.   An officer trained and experienced in detecting suspicious use of MetroCard vending machines observed defendant repeatedly attempting to use a credit card in such a machine.   The credit card appeared to be functioning, but each time the machine asked defendant to enter a ZIP code, defendant seemed to be unable to enter a ZIP code matching the credit card.   Since most people know their own ZIP codes, this behavior was suggestive of a person trying to use someone else's credit card, as opposed to a person innocently having technical difficulties using his own card.   Accordingly, the police had, at least, a founded suspicion of criminality warranting a level-two common-law inquiry (see People v. Wilson, 52 A.D.3d 239, 859 N.Y.S.2d 165 [2008], lv. denied 11 N.Y.3d 743, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ).

 When the officer approached defendant and asked if he needed assistance, defendant said he was having problems with his credit card.   The officer asked defendant to accompany him and his partner to a nearby wall of the subway station, in order to continue the inquiry away from the busy area in front of the MetroCard machines, and, without any use of force, he physically guided defendant by briefly grasping his elbow.   Even though the officer made slight physical contact with defendant, none of the police conduct elevated the encounter to a seizure requiring reasonable suspicion (see e.g. People v. Stevenson, 55 A.D.3d 486, 867 N.Y.S.2d 56 [2008];  People v. Cherry, 30 A.D.3d 185, 185-186, 816 N.Y.S.2d 450 [2006], lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [2006];  People v. Wigfall, 295 A.D.2d 222, 744 N.Y.S.2d 373 [2002], lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 [2002] ). The officer lawfully asked to see the credit card and a form of identification, and the discrepancy between the identification card and defendant's actual appearance provided probable cause for his arrest.

Because I believe that the police forcibly stopped and detained the defendant without a reasonable suspicion that the defendant had committed or was about to commit an offense, I dissent.   Initially, I agree with the motion court and the majority that police had a founded suspicion of criminality based on the defendant's furtive behavior at the MetroCard machine.   In my view, this founded suspicion merely allowed the police to pursue a common law right to inquire what the defendant was doing at the MetroCard machine.  People v. De Bour, 40 N.Y.2d 210, 223-224, 386 N.Y.S.2d 375, 385, 352 N.E.2d 562, 572 (1976).

Where I depart from the majority's reasoning is in the characterization of the police conduct as “slight physical contact with defendant.”   It is uncontested that Police Officer Rodriguez approached the defendant, identified himself by showing his police identification and shield, and asked if the defendant was having a problem with his credit card.   Officer Rodriguez was on the defendant's right side and Rodriguez's partner was on the defendant's left.   The defendant replied that he was having problems with his credit card.   Officer Rodriguez “grabbed” or “grasp[ed]” the defendant's elbow and propelled him to the side of the MetroCard machine.   He simultaneously said to the defendant “please walk with me.”   The defendant found himself against a wall next to a MetroCard machine, with Officer Rodriguez directly in front of him and another police officer “directly” to the side of Rodriguez.   Officer Rodriguez further testified that he had “grabbed [the defendant] away from the people just in case anything happen[ed] and I put him on the wall.”

This stop by police is significantly more intrusive than the minor interruptions that we have permitted under a De Bour level-two stop.   See People v. Stevenson, 55 A.D.3d 486, 867 N.Y.S.2d 56 (1st Dept.2008);  People v. Cherry, 30 A.D.3d 185, 186, 816 N.Y.S.2d 450, 451 (1st Dept.2006), lv. denied, 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 (2006) (officer justified in raising hand to physically restrain defendant in a level-two encounter);  People v. Grunwald, 29 A.D.3d 33, 34, 810 N.Y.S.2d 437, 439 (1st Dept.2006), lv. denied, 6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977 (2006) (police officer did not exceed limits of common-law right to inquire where he told defendant to “[c]ome over here,” got in front of the defendant, and confronted him face-to-face when he tried to walk away).

The ultimate test of whether an encounter has risen to the level of a seizure is, “whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom.”  People v. Bora, 83 N.Y.2d 531, 535, 611 N.Y.S.2d 796, 798, 634 N.E.2d 168, 170 (1994).   I submit that any reasonable person who is grasped by the elbow, “put [ ․ ] on the wall”, and surrounded by police officers in the middle of a subway station would believe that there was a significant limitation on his freedom.   Accordingly, I would reverse the motion court.

All concur except CATTERSON, J. who dissents in a memorandum as follows: