Saturday, February 9, 2013

What Did the Police Know and When Did They Know It

Pursuant to People v DeBour (40 NY2d 210) and People v Hollman (79 NY2d 181), an analysis of the lawfulness of police action for purposes of determining a suppression motion requires  the court to engage in the legal equivalent of the filming of a stop action animation. Each action by the police must be separately analyzed in the context of what the police know at the time of that act. Thus, defense counsel in drafting suppression motion needs to show the court that the quantum of information available to the police was an insufficient predicate for the degree or nature of the police conduct.
People v Carr (2013 NY Slip Op 00809 [4th Dept 2/8/13]), is a good example of how this approach can benefit the defendant.  In Carr, the arresting office testified at the suppression hearing that
at approximately 4:00 a.m., he approached defendant's vehicle because the vehicle was illegally parked. The officer asked defendant, "what's going on?" and observed that defendant appeared to be very nervous. After the officer inquired as to why defendant was so nervous, defendant replied that he was seeking a prostitute. The officer described the area where the encounter occurred as an "open air drug market" characterized by a high incidence of prostitution and noted that, in his experience, persons seeking prostitutes were often found to possess illegal drugs. The officer thereafter sought and obtained defendant's permission to search the vehicle and, during the ensuing search, discovered a handgun underneath the passenger seat. On cross-examination, the officer acknowledged that, before he sought defendant's permission to search the vehicle, he asked defendant if there was "anything in the car that [the officer] should be aware of." The officer could not recall whether he posed that question before or after defendant made the admission concerning the prostitute.
On this record the suppression court denied the suppression motion, Mr. Carr pleaded guilty to attempted criminal possession of a weapon in the second degree and then appealed.  On appeal, the Appellate Division, Fourth Department, reversed, this conviction upon a holding that the arresting officer acted unlawfully in asking Mr. Carr, who was sitting in an illegally parked car in a high crime area at 4 am., if there was anything in his car that the officer should be aware of and that "(i)nasmuch as defendant's consent to the search was obtained immediately after the improper inquiry concerning the contents of the vehicle, we cannot conclude that defendant's consent was acquired by means "sufficiently distinguishable from the taint" of the illegal inquiry." (As to litigating consent to search in New York generally, see).

As urged by defense counsel, the Court's explanation of why the police conduct was unlawful focused on what it was proved that the arresting office knew at the time of each of his actions:
 We analyze defendant's contentions pursuant to the four-tiered framework for citizen-police encounters set forth in People v De Bour (40 NY2d 210, 223; see People v Garcia, 20 NY3d 317, ___; People v Hollman, 79 NY2d 181, 184-185). At its inception, the encounter [*2]was a request for information, and defendant does not dispute that "[t]he police had an objective, credible reason for approaching [his] car . . . inasmuch as the car was illegally parked" (People v Valerio, 274 AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981). Nevertheless, once the officer asked if there was anything in the vehicle he "should be aware of," the encounter became a common-law inquiry under De Bour, requiring a "founded suspicion that criminal activity is afoot" (De Bour, 40 NY2d at 223; see generally Garcia, 20 NY3d at ___ n 1; People v Ponder, 43 AD3d 1398, 1399, lv denied 10 NY3d 770). We conclude that the People failed to meet their burden of establishing the legality of the police conduct, i.e., that the officer possessed the requisite founded suspicion to make such an inquiry (see generally People v Riddick, 70 AD3d 1421, 1423, lv denied 14 NY3d 844). Although defendant ultimately admitted that he was seeking a prostitute, as noted the officer could not recall whether defendant made that admission before or after the officer inquired regarding the contents of the vehicle. Absent defendant's admission, the evidence demonstrated only that defendant appeared nervous and that the encounter took place in a "high-crime" area. Such factors alone are insufficient to elevate the encounter to a common-law inquiry (see generally Garcia, 20 NY3d at ___; People v Banks, 85 NY2d 558, 562, cert denied 516 US 868; People v Boulware, 130 AD2d 370, 374, appeal dismissed 70 NY2d 994). 
 People v Carr (2013 NY Slip Op 00809).

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