People v. Bowden , 928 N.Y.2d 12 ( 2011 )

The hearing court erred in suppressing the physical evidence and defendant’s statements. Based upon the testimony of the sole witness, Sergeant Robert Barnett, whose testimony the hearing court properly credited in its entirety, every aspect of the police conduct was properly justified by their observations and the information in their possession.

After taking into custody a man who was wanted in connection with a shooting incident, and receiving from that man insufficient identification and conflicting information both as to his name, which he initially gave as Jason Lawyer, and as to his address, the police determined that on a previous occasion they had arrested a man by the name of Joshua Lawyer with an address of 328 East 197th Street, apartment 4C. In order to confirm the arrested individual’s identifying information, Sergeant Barnett and three other police officers went to apartment 4C at 328 East 197th Street in Manhattan, on June 28, 2008, at 2:30 a.m. When the police knocked at the apartment door, a female voice asked who was there, and the Sergeant said “It’s the police. Can I have a word with you?” When Sergeant Barnett heard scuffling noises followed by the sound of a window being opened, he sent two of the officers up to the roof of the building. Those two officers reported afterward to the Sergeant that once on the roof, they observed a figure emerge from a fourth-floor window and ascend the building’s fire escape to the roof, with an object in hand. Once the individual arrived on the roof, one of the officers announced “Police. Don’t move.”^* The individual dropped a bag, which landed with a loud thud. One officer detained the individual, identified at the hearing as defendant, and the other retrieved the dropped bag, which was made of canvas. Through the fabric of the bag the officer who picked it up could feel an L-shaped, hard object causing him to conclude that it was a gun. In fact, when he opened the bag, he found a loaded pistol as well as a magazine and five rounds within another bag contained within the outer bag.

It is true that the police did not initially have any information about the apartment’s contents or its occupants when they first approached the apartment, except that the accused perpetrator of a shooting might have lived there. It is also true that individuals of whom the police have no reasonable suspicion of criminal activity have the right not to answer an officer’s question, or even to run from the police, without those acts creating grounds to detain that individual (see People v May, 81 NY2d 725, 728 [1992]; People v Howard, 50 NY2d 583, 586 [1980], cert denied 449 US 1023 [1980]). However, we reject the dissent’s view that the police had insufficient grounds to detain defendant by the time she arrived on the roof. Rather, we conclude that the totality of the information known to the police by the time defendant was observed on the roof holding the bag was sufficient to create a reasonable suspicion that defendant was involved in some criminal activity, entitling them, under People v De Bour (40 NY2d 210, 223 [1976]), to detain her and pat down the canvas bag she had dropped.

In People v Howard, the police had approached a man on the street, having no prior information regarding his criminal activity, merely because he was holding a vanity case and purportedly looking “furtive,” and they detained him when they caught up to him after he ran from them (50 NY2d at 587). Similarly, in People v May, the police detained two people based on their being seated in a parked automobile on a deserted street at 2:30 a.m., and detained them after they drove off when the police approached. Here, in contrast, the police did not begin with no information at all; rather, the apartment in question was the possible address of a man charged with a shooting. When the apartment’s occupant attempted to flee rather than respond to the police when they arrived at the door, although that fact alone did not give them the right to detain defendant, they had no obligation to simply allow her to flee; they were entitled to pursue her, as in People v May, where the Court observed that although the officers had no legal basis to stop the car when they did, they could have followed the car and run the plates to determine whether it was stolen (81 NY2d at 728).

The officers’ observations of defendant holding an object as she exited her apartment through the window and climbed up the fire escape to the roof, when considered together with the information that had led them to the apartment in the first place, provided justification for the police to identify themselves as police and direct her to stop once she reached the roof. By that point, their observations and the information known to them had risen to the level of a reasonable suspicion that defendant had been or was then engaged in criminal activity, specifically, that she was trying to avoid the police’s detection of some contraband, possibly relating to the shooting underlying their initial approach to the apartment. This information justified a stop and frisk under People v De Bour.

There are certainly similarities between these circumstances and those in People v Singh (291 AD2d 419 [2002], lv denied 98 NY2d 655 [2002]), where police went to an apartment based on an anonymous tip of drugs contained there and received unresponsive answers from behind an apartment door, after which the apartment occupant attempted to flee by jumping out a second floor window and off the roof of a shed. However, due to the Singh decisions’s mixing of language applicable to De Bour level-two stops and that applicable to De Bour level-three stops, particularly since the Singh decision relied on cases where level-three stops were found to be justified, we decline to rely on Singh for the conclusion that only a level two right of inquiry was created there by the information possessed by the police. It is worth noting, however, that unlike the facts in Singh, the underlying investigation here concerned an actual shooting, not an anonymous report of drug possession; this element necessarily creates in the minds of the investigating officers the constant spectre that a weapon might be uncovered in the course of investigation.

Having properly detained defendant, there was no impropriety in the officer’s “frisk” or “patdown” of the bag. It was in defendant’s “grabbable area” at the time of the stop, it was retrieved moments after defendant was detained, and the thud it made upon being dropped as well as the connection between the apartment and the shooting suspect gave the officers grounds to “pat down” the bag (see Matter of Gregory M., 82 NY2d 588, 591 [1993]; People v Brooks, 65 NY2d 1021, 1023 [1985]; People v Corbett, 258 AD2d 254, 255 [1999], lv denied 93 NY2d 898 [1999]). The testimony that defendant was “secured” before the bag was frisked did not render the frisk of the bag improper (see People v Smith, 59 NY2d 454 [1983]; People v Wylie, 244 AD2d 247 [1997], lv denied 91 NY2d 946 [1998]). Nor does it matter that Sergeant Barnett did not testify that the officers were concerned for their safety at the time defendant was detained and her bag patted down; that they had reason to suspect the presence of a gun at that moment is enough (People v Fernandez, 88 AD2d 536 [1982]).

The hearing court’s reliance on People v Gokey (60 NY2d 309 [1983]) was misplaced. Gokey stands for the proposition that the police may not perform a warrantless search of a duffel bag simply because it had been within the grabbable area of a suspect at the time of his arrest (id.). Importantly, in Gokey there was no concern about a gun, and the Court observed that the police left the bag on the ground when they arrested the defendant, indicating a lack of any sense of exigency (id. at 311). Gokey does not deal with circumstances in which police, upon taking hold of a defendant’s bag immediately after detaining that defendant, have reason to be concerned that it contains a gun, and upon palpation, can feel the presence of a gun within.

When, upon feeling the contents of the bag, the officer felt the distinctive weight and L-shape of a firearm, he was justified in searching the bag (see People v Prochilo, 41 NY2d 759, 762 [1977]; People v Corbett, 258 AD2d at 255). Accordingly, the gun contained in the bag and defendant’s subsequent statements were lawfully obtained. Concur — Andrias, Saxe and ManzanetDaniels, JJ.

* There is no evidence at all that the police directed or instructed the individual to drop the bag. After Sergeant Barnett testified on direct examination that the officers said, “Police. Don’t move,” on cross-examination defense counsel asked, “And they tell the individual to drop it, correct? Drop the bag?” When the witness merely said, “I’m not sure exactly what they said. I know they said police, don’t move,” defense counsel rephrased his question, to “They said police don’t move, correct?” which the witness confirmed.