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The PEOPLE of the State of New York, Plaintiff, v. Hakeem RAGGS, Defendant.
The defendant, Hakeem Raggs, is charged with committing the crimes of Criminal Possession of a Weapon in the Second Degree (two counts) [Penal Law §§ 265.03(1)(b) and 265.03(3) ] and Criminal Possession of a Controlled Substance in the Seventh Degree (one count) [Penal Law § 220.03]. On November 30, 2017, a Mapp/Dunaway hearing was conducted by this Court to determine whether evidence recovered by police officers, namely a loaded .22–caliber handgun and four alprazolam pills (the generic form of Xanax), from the defendant's person at the time of his arrest, should be suppressed. Police Officer Michael Duffy, the arresting officer, was the only witness who testified at the hearing.
On December 21, 2017, following the conclusion of a Mapp/Dunaway hearing, the defendant moved to suppress the evidence. In his motion, the defendant argues that the evidence recovered from him should be suppressed because Officer Duffy did not have proper justification to seize him. Specifically, the defendant contends that Officer Duffy's pursuit and detention of him constitutes an improper seizure because it was not justified by a reasonable suspicion that he in particular was involved in any criminal activity.
In their response, the People argue that the Court should deny the defendant's motion to suppress the evidence recovered from the defendant because the circumstances justified a founded suspicion that criminal activity was afoot thereby giving Officer Duffy a common law right of inquiry of the defendant. Moreover, the People assert that Officer Duffy's conduct fell within the bounds of a level two inquiry and did not rise to a level three inquiry. Lastly, the People assert that the touching of the defendant's person was not a search or seizure of the defendant.
The Fourth Amendment of the United States Constitution and New York Jurisprudence protects persons from arbitrary intrusions by the government including unlawful searches and seizures. Under New York law, there are four varying levels of suspicion, or “degrees of objectively credible belief,” that law enforcement must possess to justify interference with an individual's right to privacy (see People v. De Bour, 40 NY2d 210, 223  ): 1) a level one, involves the minimal intrusion of approaching to request information when there is an objective credible reason for that interference, not necessarily indicative of criminality (see People v. De Bour, 40 NY2d at 223); 2) a level two, is the common-law right to inquire which is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information (i.e. an officer may ask pointed questions that would lead the person approached to believe that he or she is suspected of some wrongdoing), but short of a forcible seizure (People v. Cantor, 36 NY2d at 114); 3) a level three, authorizes a forcible stop and detention of a person where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor (CPL 140.50 ; see Terry v. Ohio, 392 US 1 ; People v. Cantor, supra); and 4) a level four, where a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL 140.10). To determine whether a search or seizure is reasonable, “we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible” (see People v. Cantor, 36 NY2d 106, 111  ).
In the instant case, this Court finds that Officer Duffy's conduct was improper under the circumstances in this case and the defendant's right to privacy was violated. The physical evidence recovered from the defendant's person must therefore be suppressed and the defendant's motion is hereby granted.
On October 14, 2016, Officer Duffy was traveling eastbound in an unmarked police car when he noticed a group of seven to ten people outside on a sidewalk, including the defendant (Dunaway/Mapp Hr'g Tr.at 18, 39). Officer Duffy testified that while on routine patrol, he stopped, exited his vehicle, and approached the individuals because he noticed a cloud of smoke and could smell an odor of marijuana from around the area where the group was standing (Id. at 18, 20). As Officer Duffy walked up to the group, in plain clothes, he heard people in the group other than the defendant saying in substance, “they are just looking for guns, they are not looking for weed․we are just smoking” (Id. at 21). Officer Duffy then observed that the defendant began to walk very quickly away from the group (Id. at 23, 39). Officer Duffy then proceeded to follow the defendant and stated something to the effect of “don't make me chase you for weed because then you are going to have to go in” (Id.). At this point, the defendant then turned around and began walking toward the direction where the officer was standing (Id. at 24). While the defendant was walking back, Officer Duffy yelled at his partner “if he [the defendant] gets down to you, stop him” (Id.). When the defendant made his way to where Officer Duffy was, Officer Duffy reached out his hand onto defendant's chest and said, “where are you going?” Officer Duffy testified that he grabbed the left area of the defendant's chest and felt something heavy in his pocket (Id. at 25). Officer Duffy then proceeded to unzip he defendant's pocket and recovered a loaded .22 caliber firearm and four alprazolam pills (Id. at 29–30).
Based on these facts, only a level one inquiry was appropriate. Officer Duffy's observation of a cloud of smoke and the odor of marijuana constituted an objective, credible reason for his interference with the defendant and justified a request for information. The defendant walking away from the group alone without any other indicia of criminality (i.e. no marijuana, no cigarette in his possession, nor any statement from the defendant admitting to possession of marijuana) did not elevate the encounter to a level two inquiry, the common law right to inquire. The defendant had every right to walk away from the group since there was no evidence or founded suspicion that he was committing a crime.
Officer Duffy's statement to the defendant, “Don't make me chase you,” constituted a seizure. An encounter becomes a seizure when the officer apprehends the citizen by means of physical force or show of authority and creates a detention from which a reasonable person would not feel free to leave (see Landsman v. Vill. of Hancock, 296 AD2d 728 [3d Dept 2002] ).
“Police pursuit is regarded as significantly impeding a person's freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Reyes, 199 AD2d 153, 155, affd. 83 NY2d 945 [1st Dept 1993] ). By contrast, mere surveillance need not be justified by reasonable suspicion. The police may continue to observe an individual if they do so unobtrusively and do not limit defendant's freedom of movement (see People v. Howard, 50 NY2d 583, 592  ). A reasonably prudent person would not deduce that they are free to leave an area upon being told by a police officer, “Don't make me chase you for weed because then you are going to have to go in.” Officer Duffy did not have the right to seize nor pursue the defendant since he did not have a reasonable suspicion the defendant was in possession of marijuana. Courts have defined reasonable suspicion as that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [person] under the circumstances to believe criminal activity is at hand” (People v. Cantor, 36 NY2d at 112–113).
Officer Duffy testified on cross examination that he did not even smell marijuana on the defendant. Lastly, the defendant walking toward the Officer alone did not constitute flight from the police and does not justify an escalation to a level three inquiry, a forcible stop and detention. There is no indication that the defendant, conscious of police presence, was distancing himself from some sort of contraband (see People v. Wigfall, 161 AD2d 413 [1st Dept 1990] ).
Accordingly, because Officer Duffy's conduct exceeded the bounds of propriety given the circumstances of this case, the defendant' s constitutional rights were violated and the evidence recovered from the defendant must be suppressed.
The foregoing constitutes the decision and Order of the court.
Guy H. Mitchell, J.
Response sent, thank you
Docket No: 05408/2016
Decided: February 21, 2018
Court: Supreme Court, New York County, New York.
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