People v. Mitchell , 185 A.D.2d 163 ( 1992 )

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered December 20, 1990, convicting defendant, after trial by jury, of criminal possession of a controlled substance in the fifth degree, and sentencing him to an indeterminate term of imprisonment of two to four years, reversed, on the law and the facts, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required. The sole issue on appeal is the propriety of the court’s order declining to suppress the drugs seized from defendant at his arrest.

At the hearing on the motion to suppress, New York City Police Officers Kokeas and Higgins testified that, at approximately 2:00 a.m. on April 5, 1990, they were on uniformed motor patrol travelling southbound on Second Avenue. Kokeas observed defendant standing in front of a building near 102nd Street in which both officers had made numerous arrests, primarily involving crack cocaine. The building was located next door to a grocery store, which was open. After the officers pulled up near to where defendant was standing, they saw him toss something to the ground. Kokeas immediately left the car and walked over to the area where the object had fallen to look for it with his flashlight. As Kokeas picked something up from the ground, defendant turned and walked toward the building, ignoring the requests of both officers to stop. Kokeas testified that the item he picked up appeared to be a vial of crack cocaine contained in a glassine envelope. Higgins, without observing what Kokeas had picked up, immediately followed defendant, who, as he was entering the building, made a motion to his mouth with his right hand. When defendant started to run up the stairs, Higgins ran after him, grabbed him and, when he started to make an inquiry, saw crack vials fall from the defendant’s mouth. Defendant was thereupon arrested and charged with possession of the cocaine found on his person.

Initially, we note that, while the police are permitted to rely on the direction of their fellow officers to arrest without simultaneously knowing the underlying facts which led to such direction, they cannot be considered to have relied on information possessed by each other without there having been any communication of either the information itself or a direction to arrest (see, People v Brnja, 50 NY2d 366, 373, n 4). Therefore, inasmuch as Higgins not only testified that he did not know what Kokeas had picked up from the ground, but never testified that he relied on, or even heard, Kokeas’ request that defendant stop, Kokeas’ knowledge of what defendant had discarded cannot be imputed to Higgins.

Thus, the within encounter must be analyzed solely by reference to the information which was actually available to Higgins, the arresting officer. At the time that Higgins requested defendant to stop, defendant had been standing in front of a drug prone location, but only a short distance from an open grocery store. Upon the arrival of the police car, he had tossed something to the ground and, after the police left the car, he started to walk away. While none of these factors was necessarily indicative of criminal activity and each is capable of an innocent interpretation, they were sufficient to constitute an objective credible reason sufficient to support the officers’ intrusion upon defendant’s privacy for the purpose of requesting information (see, People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; People v Holmes, 181 AD2d 27). Thus, at that point, Officer Higgins acted appropriately in requesting defendant to stop.

However, when defendant failed to comply, Higgins immediately undertook to follow and pursue defendant. Under New York law, before a police officer may subject a person to the "limited detention” (People v Howard, 50 NY2d 583, 592, cert denied 449 US 1023) inherent in pursuit, he or she must have a reasonable suspicion that that person has committed or is about to commit a crime (People v Leung, 68 NY2d 734; People v Holmes, supra). In this case, we find that defendant’s reaction to the police request to stop was not sufficiently incriminating to raise Higgins’ level of suspicion to that necessary to justify pursuit. Merely failing to cooperate and leaving the scene is not sufficiently indicative of criminality to enhance an objective credible reason to request information to reasonable suspicion (People v Howard, supra; People v Holmes, supra). Nor, in this case, was the police officer’s suspicion sufficiently heightened by any attempt upon defendant’s part to deceive (cf., People v Hollman, supra; People v Jones, 118 AD2d 86, affd 69 NY2d 853). In particular, we note that Higgins’ testimony that he saw defendant make a motion to his mouth, without any indication that he had seen defendant actually put anything in his mouth, was too speculative and innocuous a basis upon which to rpst a conclusion that defendant was hiding contraband.

Under these circumstances we find that the drugs which were found upon defendant at his arrest should be suppressed, and the indictment which charged him with their possession dismissed. Concur—Milonas, J. P., Rosenberger and Ellerin, JJ.