People v. Reyes , 605 N.Y.S.2d 262 ( 1993 )

Judgment, Supreme Court, New York County (Murray Mogel, J.), rendered May 21, 1992, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of three years to life, affirmed.

Evidence credited at defendant’s suppression hearing was that two officers in a marked police van observed defendant walking briskly away from a group of men standing together in a drug-prone location, while clutching underneath his arm in a suspicious manner as though "tucking” a weapon beneath his jacket, and then putting both hands in his pants pockets and walking "tightly” down the street. The officers followed him in their van but, becoming stuck in traffic, exited the van and walked after defendant. One officer, a few feet behind defendant, called to defendant, saying "Hey, stop, excuse me,” "Stop, hey, stop, police”, or words of that nature. The other officer was also close to defendant, close enough to have obstructed defendant’s flight if defendant had chosen to flee, but defendant was not shown to have been aware of the proximity of that other officer. The motion court found the testimony of the first officer credible and found that the action he took was a minimal intrusion under People v De Bour (40 NY2d 210). We agree. Defendant simply complied with the request to stop and, while turning toward the officer, dropped a kilogram brick of cocaine from under his jacket. The officers then arrested him. The incident was clearly a "nonthreatening encounter in which an individual is approached for an articulable reason” (People v Hollman, 79 NY2d 181, 191). In Hollman the defendant was questioned by an officer in a bus. The officer was kneeling on the seat in front of defendant or standing in front of that seat; a second officer was located behind the first. The closeness of the officers did not preclude the finding that the questions were a first level request for information justified by an objective credible reason.

The situation in the instant case is analogous to that in People v Diaz (80 NY2d 950) in which two police plainclothed officers observed Diaz holding a dark, opaque plastic bag against his body in an area described by one officer as "drug-prone”. When one of the officers stepped out of the police car and approached Diaz with his shield hanging visibly on his chest and his hand held over his gun, noticeable at his waist, Diaz threw the bag at him and fled before the officer could speak. The bag contained a kilogram brick of cocaine. "These circumstances”, the Court of Appeals said, "although not necessarily indicative of criminality, justified the officers’ initial approach for the purposes of asking defendant to identify himself and state his purpose in the neighborhood (see, People v De Bour, 40 NY2d 210). That one officer held his hand on his bolstered gun as he approached defendant was not, by itself, sufficient to raise the encounter to a second-level investigatory stop under De Bour” (supra, at 952). The action of defendant Reyes in the instant case in clutching under his arm in such a location was more inducing of inquiry than Diaz’s clutching of the bag—and more indicative of danger; and the policeman’s action in approaching Diaz and displaying his shield—on which Diaz’s "eyes focused” (supra, at 951)—is hardly less intrusive than the officer’s requesting defendant Reyes to stop in the instant case. In the instant case the officers also approached with their hands on their undrawn guns. The motion court expressly discredited Reyes’ testimony that the police approached with guns drawn and that he was grabbed and searched.

As even the dissent concedes, the officers had the right to request information of defendant. Before they could ask any questions, however, and as he turned, a kilogram of cocaine dropped from under defendant’s jacket. But the officers’ conduct did not constitute a seizure. To hold otherwise would defeat the right of the police to make a request for information. A request that somebody stop is a necessary preliminary to a request for information when a person is ahead of the officer, walking away from him, and—for all that appears— unaware that the officer wished to inquire of him. The language of the police officer here, "Hey, stop, excuse me,” "Stop, hey, stop, police,” or words of that nature, seems to indicate "a general, nonthreatening encounter” and one at the minimal level of intrusiveness (People v Hollman, supra, at 191).

The dissent relies on People v Holmes (81 NY2d 1056). That case, however, involved flight by the defendant and pursuit by the police. 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 (supra, at 1057-1058). Here there was no flight, no pursuit, no impediment to defendant’s freedom of movement; there was only an approach by the police to inquire. It is anomalous that a person can better his chances of avoiding the consequences of illegal conduct if he refuses to comply with a police request for information and instead, by fleeing, induces the police to pursue him, even when the pursuit is successful. The desire to see the more compliant defendant at less of a disadvantage is understandable. It would not be a profitable resolution of the anomaly, however, to extend the advantages of flight to an accused where, as here, there has been no attempt to flee. Recent decisions involving flight indicate continued concern in connection with the legal effect of flight and pursuit (see, People v Matienzo, 81 NY2d 778; People v Madera, 189 AD2d 462, affd 82 NY2d 775; see also, People v Holmes, supra, at 1059 [Bellacosa, J., dissenting]). There is no authority, however, justifying the extension of the advantages of flight to an accused who has not attempted to flee.

Like the dissent we too can agree with Justice Brandéis in his dissent in Olmstead v United States (277 US 438, 478) that "the right to be let alone” is a highly valued right, and that "[t]o protect that right, every unjustifiable intrusion * * * must be deemed a violation of the Fourth Amendment” (emphasis added). Our examination here is not to minimize that right but to decide whether the intrusion here was indeed unjustifiable. De Bour and Hollman are guides to aid in such decision; the criteria therein cannot be bypassed by citing "the right to be let alone” as an absolute. Concur—Sullivan, J. P., Kassal and Nardelli, JJ.