In the latest foray into the minefield of police-citizen encounters, a deeply divided Manhattan appellate panel held Tuesday that the presence of a suspicious-looking man in a crime-ridden public housing building did not give police a right to question the individual.
"Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information," a 3-2 majority of the Appellate Division, First Department, said in suppressing gun evidence. "Nor does an individual's desire to avoid contact with the police—even in a high-crime neighborhood—constitute an objective credible reason for making [an] inquiry."
In People v. Johnson, 9779, police officers patrolling inside a Bronx housing authority building encountered the defendant descending the stairs.
Jeffrey Johnson "froze" when he saw an officer and then "jerked back" as if he was going to go back upstairs, according to the decision. But when an officer asked Johnson to come downstairs, he complied.
The officer asked Johnson if he lived in the building and the defendant initally said he did but then said he was visiting a friend. Johnson told police he had identification in his pocket, but began moving his hands "all over the place, especially around his chest." One officer grabbed Johnson's arm, causing his jacket to open and revealing a gun, according to court papers.
Acting Supreme Court Justice Harold Adler (See Profile), presiding over the suppression hearing, declined to suppress the gun after an officer testified that it was his understanding that police can question anyone inside a New York City Housing Authority (NYCHA) building. Johnson was subsequently convicted of gun-related charges at a bench trial before Criminal Court Judge Seth Marvin (See Profile) and sentenced to an unconditional discharge.
On Tuesday, the First Department reversed the suppression ruling and the conviction.
In an unsigned decision, the court said the circumstances of this encounter did not yield the requisite "objective credible reason" for police to request information pursuant to People v. DeBour, 40 NY2d 210 (1976), in which the Court of Appeals identified four levels of police-citizen encounters and the standards for escalating levels of intrusion.
At the first level, a police officer with an "objective credible reason" may approach a citizen and request basic information. The second level permits an officer with a "founded suspicion that criminal activity is afoot" to request more detailed information and ask accusatory questions. To stop and detain a suspect, an officer needs a reasonable suspicion that the individual is committing, has committed or is about to commit a crime. In order to take the suspect into custody, the officer must have probable cause to believe the suspect committed a crime in his or her presence.
In Johnson, the majority, consisting of justices Karla Moskowitz (See Profile), Helen Freedman (See Profile) and Sallie Manzanet-Daniels (See Profile), said in an unsigned opinion that the stairwell encounter did not meet the DeBour standard for an initial inquiry.
The majority relied on the First Department's 2011 decision in Matter of Michael F., 84 AD3d 468, in which officers approached a group of young men on a street corner, followed one of them and asked him what he was doing. In Michael F., the court said the defendant's behavior was ambiguous and amounted to nothing more than his "right to be let alone."
Moskowitz, Freedman and Manzanet-Daniels said police had no more right to question Johnson inside the building than they did to question Michael F. on a public street in a high-crime neighborhood.
"Even if defendant's conduct on the staircase can be equated with flight—which is extremely doubtful, given the testimony that he simply stopped descending the stairs upon viewing the officers—there were no equivocal circumstances," the majority said. "The right of police to patrol inside NYCHA buildings does not eliminate the requirement that each level of intrusion be supported by the corresponding level of suspicion."
Andrias noted that the New York Police Department is the "lawful custodian of NYCHA apartment buildings, and its duties include keeping the buildings free of trespassers." He said that when officers viewed Johnson "in a drug-prone building and saw him freeze, jerk back and begin to retreat," they reasonably suspected him of trespassing—giving rise to a DeBour Level 1 inquiry.
Further, when Johnson changed his story about whether he lived in the building and began moving his hands, "the officers reasonably interpreted defendant's actions to be indicative of possession of a weapon, and reasonably suspected they were" in danger, Andrias wrote. "This provided an objective basis for the frisk that resulted in the recovery of the loaded pistol concealed in defendant's interior jacket pocket."
A Confusing Guide
DeBour, written by Sol Wachtler who was then an associate judge on the Court of Appeals, has set the standard and guidelines for police-citizen encounters for 37 years. But its practical application continues to puzzle the New York trial and appellate courts, and in some cases even the federal courts, resulting in a continuous flow of DeBour-related decisions and opinions.
• In December, the Court of Appeals in People v. Garcia, 205, extended DeBour to traffic stops and said police officers must have a "founded suspicion that criminality is afoot" before asking the occupants of a pulled-over vehicle if they have weapons in their possession. Until Garcia, DeBour's applicability to traffic encounters was unclear.
• In January, Southern District Judge Shira Scheindlin in Ligon v. New York City, 12-Civ.-2274, issued a preliminary injunction after finding the New York Police Department violated the Fourth Amendment rights of individuals who were stopped while entering or leaving Bronx apartment buildings as part of the Operation Clean Halls trespass enforcement initiative.
Although the case was decided on Fourth Amendment grounds, Scheindlin referenced DeBour in a footnote.
"There could be a simple way to ensure that officers do not unintentionally violate the Fourth Amendment rights of pedestrians by approaching them without reasonable suspicion and then inadvertently treating them in such a way that a reasonable person would not feel free to leave, Scheindlin wrote. "Officers could, for example, begin DeBour Level 1 and 2 encounters by informing the person that he or she is free to leave."
• Last year, different panels of the First Department held in separate 3-2 rulings that skitterish teenagers encountered by police in high-crime areas of Manhattan and the Bronx were not behaving so suspiciously as to justify a stop-and-frisk, even though the searches yielded loaded guns in each case (See In re Darryl C., 6253, In re Jaquan M., 6432, and NYLJ, July 27, 2012).
Johnson was argued by Harold Ferguson Jr. of the Legal Aid Society and Robert Sandusky III of the Bronx district attorney's office.
Steven Banks, attorney-in-chief of the Legal Aid Society, said the ruling "stands for the proposition that the Fourth Amendment applies in the New York City Housing Authority, which in light of over-policing in recent years is an important protection" to reinforce.
"The mere fact that someone is on Housing Authority grounds doesn't relieve the police of the requirement to have an objective and credible reason to approach somebody," Banks said. "The ends don't justify the means."
Steven Reed, spokesman for the Bronx District Attorney's Office, said the decision is under review and declined further comment.
@|John Caher can be contacted at firstname.lastname@example.org.