People v. Bilal

170 A.D.3d 83

96 N.Y.S.3d 1

The PEOPLE of the State of New York, Respondent,

v.Rashid BILAL, Defendant–Appellant.

7052

Ind. 6358/08

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MARCH 7, 2019

Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow and David M. Cohn of counsel), for respondent.

Dianne T. Renwick, J.P., Rosalyn H. Richter, Sallie Manzanet–Daniels, Peter Tom, Ellen Gesmer, JJ.

RENWICK, J.P.

Defendant was convicted of criminal possession of a weapon in the second degree, with regard to a gun he discarded during a police pursuit. In this appeal, we must decide whether the circumstances existing when the police approached defendant, combined with defendant's flight, provided the police with the required reasonable suspicion to justify a police pursuit or whether defendant had the right to be let alone. For the reasons explained herein and upon proper application of the De Bour principles ( People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ), the police officers' action in pursuing defendant was inconsistent with our Constitution and our laws which seek to protect our citizens on their streets and in their public places from being seized by the police except where individualized suspicion of wrongdoing exists.

Detective Richard Pengel testified at the suppression hearing that on December 27, 2008, he, along with three other officers, were patrolling, in plainclothes, in an unmarked car, on 145th Street and Seventh Avenue. At approximately 9:20 P.M., they received a radio report of shots fired at 150th Street and Macombs Place. The report indicated that the incident had just happened, and a second report indicated that a man had been shot. The perpetrator was described a black man wearing a black jacket.

When the call was received, the officers were five blocks south and one avenue away from the location where the shots were fired. The officers proceeded to an area a few blocks away from the location the radio report indicated; they went to the Dunbar Houses, located at 149th Street and Seventh Avenue. The officers knew that it was possible to cut through the Dunbar Houses to get to the subway station where a perpetrator could escape.

Several minutes later, the officers arrived at 149th Street and Seventh Avenue and saw two black men walking out of one of the entrances to the Dunbar Houses. One of the men was wearing a black bubble jacket, and the other man, defendant, who was taller than the man in the black jacket, wore a gray jacket. The officers decided to stop the two men because the man with defendant matched the description of the shooter and because the officers believed the men were coming from the area where the shots had been fired. They also surmised that the men could have witnessed the crime or could have been victims.

Pengel pulled his car up behind the men and stopped. His lieutenant got out of the car and said, "Hey, Buddy, ... come here." While the man in the black jacket stopped, defendant began running. The other officers got out of the car, and while the lieutenant stayed with defendant's companion, Pengel drove the car south to cut off defendant and turned on his siren. Defendant ran in front of Pengel's car at one point, then underneath scaffolding at a construction site, where he threw something black over a fence. Defendant then let himself down and continued to run on 149th Street toward Eighth Avenue. Pengel continued to chase defendant in his car and repeatedly told him to stop. He finally stopped on 149th Street and was apprehended. Pengel went to the construction site and saw a gun lying on the ground. It was thereafter recovered by other officers.

At the conclusion of the suppression hearing, Supreme Court found that the police conduct was reasonably responsive to the situation presented. Further, even if the police pursuit was not justified, Supreme Court found that the recovery of the gun was proper because it had been abandoned by defendant. We now reverse on both grounds.

A police officer is limited to the degree of intrusion permitted by the circumstances of the case and may not exceed that level of intrusion absent a clear change in circumstances that would permit a greater intrusion (see People v. Hollman, 79 N.Y.2d 181, 185, 191–192, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ). In addition, not only can a citizen refuse to answer an officer's question, a citizen has the right to walk away. Likewise, should a citizen run from an officer, such flight, where there is no indication of criminal activity, is an insufficient basis for pursuit by an officer ( People v. Holmes, 81 N.Y.2d 1056, 1057–1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 [1993] ). "Flight alone, even if accompanied by equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect's possible engagement in criminal activity" ( People v. Reyes, 69 A.D.3d 523, 525–526, 896 N.Y.S.2d 301 [1st Dept. 2010], appeal dismissed 15 N.Y.3d 863, 910 N.Y.S.2d 31, 936 N.E.2d 912 [2010] ; see People v. Pines, 99 N.Y.2d 525, 527, 752 N.Y.S.2d 266, 782 N.E.2d 62 [2002] ; People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ).

"Police pursuit of an individual ‘significantly impede[s]’ the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed" ( Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396, quoting People v. Martinez, 80 N.Y.2d 444, 447, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992] ).

Applying these principles, we find that defendant's motion to suppress should have been granted. While the police may have had an objective credible reason to approach defendant and to request information—based on the information the officers received from the radio report and their observations of defendant and his companion—those circumstances, taken together with defendant's flight, could not justify the significantly greater intrusion of police pursuit.

Indeed, the radio report simply indicated a sole perpetrator with a vague description—black man in a black jacket. There was nothing at all about defendant that matched any aspect of the suspect in the radio report, except that he was black. Nor was defendant wearing a black jacket. He was wearing a gray jacket and was with a second individual, several minutes after the radio report of shots fired. The men did not appear to be fleeing the scene, but rather, were exiting an apartment complex. Thus, unlike the cases relied on by the People, defendant did not match any description, general or otherwise (see e.g. People v. Montilla, 268 A.D.2d 270, 701 N.Y.S.2d 55 [1st Dept. 2000], appeal dismissed 95 N.Y.2d 830, 712 N.Y.S.2d 909, 734 N.E.2d 1210 [2000] ). Further, there was insufficient evidence to support the conclusion that defendant knew Pengel and his colleagues were police officers (see People v. Riddick, 70 A.D.3d 1421, 1423, 894 N.Y.S.2d 260 [4th Dept. 2010], lv denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ).

That defendant was with someone who matched an extremely vague, generic description of the suspect, which contained no information about the suspect's height or weight, was not sufficiently indicative of criminal activity on defendant's part (see People v. Beckett , 88 A.D.3d 898, 899–900, 931 N.Y.S.2d 126 [2nd Dept. 2011] ; Matter of Rubin M. , 271 A.D.2d 291, 707 N.Y.S.2d 403 [1st Dept. 2000] [finding no reasonable suspicion where "the police approached and stopped [defendant] only because he matched the generic description of the perpetrator[,] ... a description which could just as easily have applied to countless Bronx and Manhattan residents] ). Given that this incident took place in a densely populated area of Harlem in the early evening hours, many people could have fit the vague description of a black man in a black jacket.¹

Nor was the fact that police observed defendant and his companion walking out of one of the entrances to an area (Dunbar Houses) that the police considered a possible escape route sufficiently indicative of criminal activity on defendant's part. The police had no information concerning the shooter's flight path from the reported shots-fired location. Instead, the police acted on a hunch and drove over to the apartment complex two blocks away. Since defendant was not leaving a location specified by the radio call, but was simply walking out of the apartment complex, the police had no reason to suspect that he was the gunman, particularly because the area was not described as desolate (compare Beckett, 88 A.D.3d at 899–900, 931 N.Y.S.2d 126with People v. Parker, 32 N.Y.3d 49, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] [reasonable suspicion of criminal activity to justify defendants' pursuit was supported by "specific circumstances observed by the officers during their initial encounter with defendants," namely seeing "defendants exiting private property, the scene of a suspected crime, combined with the defendants actively fleeing from the police"]; People v. Lovett, 189 A.D.2d 696, 696, 592 N.Y.S.2d 715 [1st Dept. 1993] [police, who knew "the apparent perpetrator's flight path" had reasonable suspicion to chase defendant, the only person in the vicinity of the shooting] ).

If we were to endorse a police pursuit under the grossly equivocal circumstances here—where the extremely vague, generic description of a "black [man in] a black jacket" is used to justify pursuit of the companion of someone matching that description—this Court would be ignoring an extraordinary interference with a citizen's right to be left alone. "That is not, nor should it be, the law" ( ...