People v. Camber

Not raised in that case was the question of whether the police acted reasonably in the approach they made of the defendant based on an anonymous tip. People v Hicks (supra) likewise does not address the question of the lawfulness of the initial stop. That case found only that the police acted reasonably, after having lawfully stopped the defendant, in detaining and transporting him to the crime scene for possible identification as a permissible incident to the lawful stop. The defendant was not handcuffed. In People v Allen (supra), the police received a report of an armed robbery in progress. The report described that each of the four perpetrators was armed with two guns apiece. The defendant and three other men were seen running away from the direction of the robbery. The officers exited their unmarked patrol car, identified themselves and approached the four men for questioning. The four scattered and fled. With backup called, the defendant was apprehended scaling a wall in a dark alley. He was handcuffed. Immediately after being handcuffed, but prior to being questioned, he spontaneously admitted his complicity in the robbery. The Court of Appeals found that under the circumstances of this case, the handcuffing did not amount to an arrest. It held the police were entitled to handcuff the defendant to effect his nonarrest detention in order to ensure their own safety while they removed him to a more suitable location (from the dark alley) to pat him down for weapons. In other words, the application of handcuffs was not dispositive of whether the detention of a suspect on reasonable suspicion has been elevated into a full-blown arrest. This case clearly suggests that the gratuitous use of handcuffs, not warranted by any threat, or their prolonged use after the threat justifying the use of handcuffs in the first place, may be dispositive of that question. (There was a dissent.) In People v Hicks (68 NY2d 234, 239, supra), referring to Dunaway v New York (442 US 200), and People v Yukl (25 NY2d 585), the Court notes, "[e]ven without a technical formal arrest, a suspect's detention may in fact be the equivalent of an arrest, requiring probable cause." No checklist has been devised to answer when a given set of circumstances equals an arrest. Neither subjective belief of the police nor that of the defendant governs. Citing the Yukl standard of "`what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position,'" the Hicks Court noted that defendant was not handcuffed, there was no show of force, he was permitted to park his car, he was not taken to the station, the time was brief, he was told the purpose of his detention, and no questions were asked of him after the initial inquiry. (People v Hicks, at 240.) As stated in People v Chestnut (supra, at 20), "[T]he concept of arrest should not be artificially limited by traditional notions so as to circumvent the probable cause requirement inherent in the constitutional proscription against unreasonable searches and seizures." When a seizure is tantamount to an arrest, whether formal or de facto, it is reasonable only if supported by probable cause. (Dunaway v New York, 442 US 200, supra.) Did the police act reasonably in their approach of Mr. Camber? Under Terry v Ohio (392 US 1) and CPL 140.50, they had a right to "forcibly" stop him to ask him his name and address, and an explanation of his conduct. (Here, the officer testified that his intent was to stop the defendant to see if he would consent to being searched—whether at gunpoint or not is not entirely clear—and failing that, hold him until they could obtain a search warrant—which, as noted above, could not have been obtained based on the hearing evidence. Thus it is clear that the police officers intended to forcibly take the defendant into custody.)

In De Bour (supra, at 226) the police ordered the suspect to "freeze" and then frisked him—all without asking a single question. The defendant here was not frisked, but ordered to drop his bag—all without a single question being asked of him. Although the People urged exigency at the hearing, the hearing evidence is devoid of any evidence of a volatile situation or potential escape. Given the facts as testified to at the suppression hearing, they would not have had a right to frisk him as a component of the stop. Thus, apart from the basis permitting the intrusion is the question of how the intrusion is conducted. Cases finding a stop to have been a forcible stop relate scenarios far less intrusive than that in this case. In People v Perry (128 Misc 2d 430, 433, n 2), the court found that "placing defendants `against the wall' was clearly a forcible interference with their liberty as well as a humiliation which undermined their human dignity. As such, it constitutes a forcible stop, notwithstanding the fact that the police did not have their guns drawn." In People v Boodle (47 NY2d 398), the Court found that evidence revealed as a direct consequence of unlawful police action is tainted and must be suppressed. In Boodle, the defendant entered the police car at the officer's request. The Court found this may not have been coerced, but the officer's command to "keep your hands where I can see them" demonstrated that his freedom of movement was significantly restrained. The Court further stated that when the officer began to drive without explanation, he substantially infringed on the defendant's liberty. "Since prior to the seizure of the defendant the police wholly lacked evidence of probable cause linking him to criminal activity, the seizure was clearly unlawful." (Boodle, at 401.) The gun, which the defendant in that case tossed from the car, was suppressed. Even allowing for the sake of argument that the police acted reasonably in approaching the defendant here with guns drawn, and that this did not amount to an arrest, the question remains whether they had a right, in the absence of probable cause, to order him to drop the plastic bag from his hand. The officer testified that he so directed the defendant to prevent him from ingesting it: clearly then he knew (more so than merely believed) that the object was not a weapon. Since they had no right to frisk, this conduct could not be justified as equivalent to a "frisk." Since they had not made an arrest, it cannot be justified as a search pursuant to that arrest. He had no right to demand seeing the defendant's parcel, as, lacking probable cause, he had no right to search. This demand amounted to a search within the meaning of the 4th Amendment, even if the stop did not amount to a seizure within the meaning of the 4th Amendment. This search, then, was not one made on probable cause, and so was unreasonable within the meaning of the 4th Amendment. While it is tempting to distinguish the display of weapons in this case from the observation of the bag, and so arrive at probable cause to arrest and search (to preserve evidence), that approach flies in the face of the constitutional right of citizens to be free from unreasonable seizures, and neglects to hold true to the core purpose of the exclusionary rule: to deter unlawful police conduct (cf., People v Vega, 225 AD2d 890). To forcibly detain in the manner undertaken here, with no evidence that the situation was to be potentially dangerous, was unreasonable. The aggressive conduct of the police in this case is of the same kind which De Bour said cannot be condoned. (De Bour, 40 NY2d, supra, at 226.) Under the circumstances as testified to by the officer, there was no basis to approach with drawn weapons and seize the defendant as they did. That seizure was an impermissible one under both our State and Federal Constitutions. It was not made on probable cause, and the direction to drop his parcel, not made on probable cause, was an impermissible search. The evidence is suppressed. [1] No testimony was offered, and no arguments raised, that "sell cocaine" was determined to mean "to agree to sell cocaine" or that the defendant would physically be in possession of cocaine to deliver to another. [2] There is insufficient evidence in the record for the court to find that the officer recognized the plastic he saw as a cocaine baggie, a hallmark of illicit drug trafficking packaging, such that the court could say that seeing the plastic, as the officer described it, was immediately apparent as evidence of criminality, elevating reasonable suspicion to probable cause to search. (See, People v Roth, 66 NY2d 688, 690.) [3] It is clear from Tirado (supra) that if the cocaine had been found after the defendant was handcuffed, the suppression motion here would have to be granted. The result is, therefore, the same, as it is clear that the defendant here was handcuffed simultaneously, that is, the placing of handcuffs on the defendant was not the result of the officer seeing a bag on the ground he believed to be cocaine. [4] Under De Bour (supra) and its progeny, if the suspect satisfactorily answers the questions and declines to consent to a search, there is no permissible basis to hold him. Likewise, there is authority that although the police have a right to detain him, he has a right to refuse to answer questions.