Saturday, February 2, 2013

In Illinois v Wardlow (528 US 119 [2000]), the United States Supreme Court, by a 5-4 vote, held that a person in a high crime area fleeing at the sight of police is, by itself, sufficient to create reasonable suspicion, under the Fourth Amendment to the United States Constitution. New York courts have refused to adopt Wardlow, in determining the significance of flight in determining whether reasonable suspicion existed justifying police action under Article 1, section 12 of the New York Constitution.

Most recently, in People v Cady (2013 NY Slip Op 00627  [4th Dept 2/1/13]), the Appellate Division, Fourth Department, reversed a conviction, suppressed both the physical evidence obtained by the police (a handgun) and the defendant's subsequently obtained statements, and dismissed an indictment, upon a finding the police lacked reasonable suspicion to pursue and search a suspect who fled from police after the police lawfully approached him.

The Court held that although it was not disputed that the police had an objective credible reason to approach defendant to request information about the shooting, thereby rendering the police encounter lawful at its inception , under New York law
 "With respect to the subsequent pursuit, it is well settled that 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 Riddick, 70 AD3d 1421, 1422, lv denied 14 NY3d 844, quoting People v Martinez, 80 NY2d 444, 446). Flight alone, however, " is insufficient to justify pursuit because an individual has a right "to be let alone" and refuse to respond to police inquiry' " (id., quoting People v Holmes, 81 NY2d 1056, 1058). Nevertheless, "defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (People v Sierra, 83 NY2d 928, 929 [emphasis added]; see Riddick, 70 AD3d at 1422). "It is further well settled that actions that are at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality' " (Riddick, 70 AD3d at 1422). 
Applying this New York test, the Court held that
"the fact that defendant reached for his waistband, absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime" (Riddick. at 1422-1423; see Sierra, 83 NY2d at 930; cf. People v Bachiller, 93 AD3d 1196, 1197-1198, lv dismissed 19 NY3d 861). Moreover, the fact that defendant was located in the general vicinity of a police shooting, approximately eight hours after the shooting occurred, does not provide the "requisite reasonable suspicion, in the absence of other objective indicia of criminality' " that would justify pursuit (Riddick, 70 AD3d at 1423), and no such evidence was presented at the suppression hearing. Thus, "although the police had a valid basis for the initial encounter, there was nothing that made permissible any greater level of intrusion' " (id., quoting People v Howard, 50 NY2d 583, 590, cert denied 449 US 1023).
The Court thus, ordered the evidence thereby obtained be suppressed and because its determination results in the suppression of all evidence in support of the crimes charged, it dismissed the indictment  (see People v Stock, 57 AD3d 1424, 1425).

It should be noted that the Court never cited Wardlow and did not discuss the difference in the federal and New York law regarding the significance of  flight.

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