Criminal Defense: Cocaine Suppressed

The defendant appeals from a conviction of criminal possession of a controlled substance in the third degree. The Court suppresses the physical evidence – case is sent back down to the County Court pursuant to CPL 470.45. The Court notes “that defendant correctly concedes that the vehicle was lawfully stopped for having excessively tinted windows in violation of the Vehicle and Traffic Law [and] concedes that, following the stop of the vehicle, the officer was entitled to make level one inquiries concerning defendant’s identity and destination…and to direct him to exit the vehicle when the driver admitted that he had no driver’s license and defendant was unable to produce identification.” (citations omitted). At issue here is the second level of inquiry – the officer should have stopped instead of pursuing the defendant.

Defendant responded to the officer’s level two inquiry by saying, “you’re harassing me,” and then walking away. The encounter escalated further to a level three seizure when the officer commanded him to stop, defendant continued to walk away, and the officer pursued defendant [*2]with a taser (see People v Moore, 93 AD3d 519, 520-521, lv denied 19 NY3d 865). We reject the People’s contention that defendant’s conduct provided the officer with the requisite reasonable suspicion of criminality (see generally De Bour, 40 NY2d at 223). “Flight alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” (People v Riddick, 70 AD3d 1421, 1422 [internal quotation marks omitted], lv denied 14 NY3d 844; see People v Howard, 50 NY2d 583, 590-591, cert denied 449 US 1023). Finally, we conclude that defendant’s disposal of the bags containing cocaine during the officer’s pursuit was precipitated by the illegality of that pursuit (see People v Clermont, 133 AD3d 612, 614). Thus, the court erred in refusing to suppress the bags of cocaine.

Although not fully explained in this decision, the Court of Appeals determined that there are four levels of police inquiry pursuant to People v. DeBour. This case deals with that second level…”the officer’s further escalation of the encounter exceeded permissible bounds.” A suppression hearing was held and the defendant, although appearing fidgety, etc., did not present sufficient indicia of criminality or wrongdoing to merit the prolonged stop. Indeed, the officer “proceed[ed] to the next level of confrontation, the common-law inquiry,’ which involves invasive questioning’ focusing on the possible criminality’ of the subject.” (citing People v Tejeda, 217 AD2d 932, 933, quoting People v Hollman, 79 NY2d 181, 191-192). The requisite ‘founded suspicion’ of criminality was not present in this case.

New York Criminal Defendants, cases like this highlight the importance of hiring an experienced attorney – should you, a loved one or a client be facing criminal charges in New York, call an experienced criminal defense attorney – call the Law Offices of Cory H. Morris for criminal defense counsel or counsel for a criminal appeal in New York or Florida.

Conclusion: The court suppresses the physical evidence and sends the matter back down to the County Court.

People v. Hightower, 2016 NY Slip Op 01083 (4th Dep’t. Feb. 11, 2016).