A Buffalo police officer who correctly guessed that a man was pulling a weapon out of his pocket had no right to pursue the suspect because he had neither seen the gun nor its outline in the man’s jacket, a divided appellate panel has ruled.
The Appellate Division, Fourth Department, holding in People v. Ingram,13-00437, is the latest in a spate of recent rulings in which courts have broadly interpreted a 1976 landmark opinion, People v. DeBour, 40 NY2d 210, which outlined four levels of police-citizen encounters and the standards for escalating levels of intrusion.
“The jurisprudence in this state for the last 40 years has been that the officer need not see a glint of steel before he can take action against a gun-toting thug,” said Erie County District Attorney Frank Sedita III. “Apparently, that jurisprudence is changing.”
Ingram involved a housing officer who received a tip that there were two guns stashed behind a house in the city’s crime-ridden East Side. When police went to investigate, they encountered two men. One, known to police as a recent shooting victim, spoke to the officers. The other, defendant Robert Ingram, walked away briskly, prompting an officer to ask his name.
Ingram did not respond verbally, but turned toward the officers and grabbed at his jacket as if he was attempting to pull something out of the pocket. One of the officers pulled out his pistol, repeatedly yelling at the suspect, “Don’t do it.” The suspect fled and was quickly caught with a loaded handgun in his pocket.
Acting Erie County Judge Russell Buscaglia (See Profile) suppressed the evidence on DeBour grounds in a decision narrowly affirmed by the Fourth Department.
The 3-2 majority said that since the police conceded that neither the defendant nor his companion were doing anything illegal when they first saw them, the officers were limited under DeBour to requesting basic information. Justices Edward Carni (See Profile), Rose Sconiers (See Profile) and Gerald Whalen (See Profile) agreed that the defendant, after he was asked his name, did nothing to justify further intrusion by police.
“We have previously 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,” the majority said.
The majority said neither officer saw a bulge or the outline of a weapon in the defendant’s jacket.
“Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon,” the court said.
Presiding Justice Henry Scudder and Justice Erin Peradotto (See Profile) dissented.
The dissenters said that while there may not have been any single element that permitted police to go beyond a simple inquiry, the “combination of the tip, the high-crime location, the presence of a recent shooting victim, defendant’s initial behavior and his conduct indicative of a weapon, the officers had the requisite reasonable suspicion for the pursuit.”
‘Common Sense’ Approach
DeBour, decided nearly 38 years ago, has generated a plethora of appellate rulings in recent years, many broadly interpreting the protections DeBour provided to citizens while restricting police authority—and many emanating from the First and Fourth departments.
For instance, the First Department last month held that police lacked grounds to stop two men running through Times Square while looking over their shoulders and suppressed a stolen watch (People v. Thomas/People v. Brown, 5845/10, NYLJ, Jan. 17).
Last year, the First Department said police patrolling inside a crime-ridden Bronx housing authority building had no right to question a man on the stairway who had no right to be there and suppressed a gun (People v. Johnson, 9779). And in 2012, the First Department held in separate 3-2 rulings that teenagers hanging out in high-crime areas of the Bronx and Manhattan were not behaving so suspiciously as to warrant a stop-and-frisk, even though the search yielded loaded guns (In re Darryl C., 6253, In re Jaquan M., 6432, and NYLJ, July 27, 2012).
In People v. Cady, 103 AD3d 1155 (2013), the Fourth Department suppressed a handgun discarded by a suspect under police pursuit (NYLJ, Feb. 11, 2013).
Sherry Chase of the Legal Aid Bureau of Buffalo, who represented Ingram, said the ruling illustrates the continuing influence of the 1976 landmark decision.
“DeBour sent a message for permissible police intrusion, and that message continues to guide the analysis of the cases,” Chase said. “Ingram really demonstrates that the proper application of DeBour continues to bring about the right result. The law says if you don’t see a bulge or the outline of a gun, you can’t assume there is a gun.”
But Sedita, who taught search and seizure at the University at Buffalo Law School for a decade before he was elected district attorney, said the “touchstone” for street encounter/DeBour analysis had always been the reasonableness of the officer’s actions vis-a-vis the reasonableness of the citizen’s actions.
“Certainly, we can all agree that an officer should not be able to frisk a person based on whim or caprice or a gut feeling,” Sedita said. “But when an officer is in a high-crime neighborhood and when the defendant is exhibiting conduct consistent with grabbing for a gun and then tries to flee, I think any reasonable person would say that the officer should do something about it.”
Sedita said that in the past, the courts generally deferred to police, recognizing that “being a police officer is an extraordinarily dangerous occupation and an extraordinarily important occupation.” But he said that has changed since then Judge Sol Wachtler authored DeBour back in the Ford Administration.
“Judge Wachtler made it very clear that these are not academic questions, but real life-and-death questions that should be looked at in context in which they are being made, which is often in the street at 3 o’clock in the morning in high-crime neighborhoods,” Sedita said. “I see a trend that seems to be reversing that common sense jurisprudence.”
Sedita said he will likely seek leave to the Court of Appeals.
Assistant Erie County District Attorney David Heraty argued for the prosecution.