3 No. 81
The People &c.,
Respondent, v. Rawle McIntosh,
Appellant.
2001 NY Int. 88
June 28, 2001
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Shannon K. Geraty, for appellant. Kimberly A. Mariani, for respondent.
GRAFFEO, J.:
This appeal requires us to consider the admissibility
of evidence seized as the result of an encounter between defendant
and the police on a commercial passenger bus during a stopover in
Albany, New York. Based on the particular facts and circumstances
of this case, we reverse the order of the Appellate Division which
upheld defendant's conviction. According to findings of fact made by County Court, and
undisturbed by the Appellate Division, at approximately 3:30 A.M.
on January 23, 1997, an investigator from the Albany County
Sheriff's Department boarded a bus which had arrived from New York
City. The investigator, wearing civilian clothing with his police
badge prominently displayed on his coat, was accompanied by two
other officers. The investigator announced that they were
conducting a drug interdiction and "asked everyone on board
(approximately fifteen passengers) to produce bus tickets and
identification. He then proceeded to the back of the bus to begin
examining those items from each passenger."
Walking to the rear of the bus, the investigator observed
defendant and a female companion, sitting in the last row of seats,
push a black object between them. He approached the two
individuals and asked for their identification and bus tickets.
The investigator then obtained consent to search defendant's bag,
which led to the discovery of a digital scale, and asked defendant
and his companion to stand, at which time he saw a black jacket on
defendant's seat. The officer found more than two ounces of
cocaine in the jacket pocket. Defendant was indicted on one count of criminal
possession of a controlled substance in the second degree and one
count of criminal possession of a controlled substance in the third
degree. County Court denied defendant's motion to suppress the
physical evidence seized by the police. Subsequently, defendant
pleaded guilty to both charges and was sentenced as a second felony
offender to concurrent prison sentences of 8 ½ years to life and
8 ½ to 17 years. The Appellate Division affirmed (274 2 740),
and a Judge of this Court granted defendant's application for leave
to appeal (, 95 NY2d 891). Defendant asserts that police conduct in this case
violated the rules regulating police-initiated encounters with
civilians as set forth in People v De Bour (40 2 210) and People
v Hollman (, 79 NY2d 181). At the outset, we note that whether
police conduct in any particular case conforms to De Bour is a
mixed question of law and fact (see, e.g., People v Battaglia, , 86 NY2d 755, 756; People v Alvaranga, , 84 NY2d 985, 986). Therefore,
our review is limited to whether there is evidence in the record
supporting the lower courts' determinations. Here we conclude
there is not. Where police acting in their criminal law enforcement
capacity initiate an encounter with private citizens, the propriety
of the encounter must be assessed under the four-tiered analytical
framework articulated in De Bour and reaffirmed in Hollman:
"If a police officer seeks simply to request information
from an individual, that request must be supported by an
objective, credible reason, not necessarily indicative of
criminality. The common-law right of inquiry, a wholly
separate level of contact, is 'activated by a founded
suspicion that criminal activity is afoot and permits a
somewhat greater intrusion.' Where a police officer has
reasonable suspicion that a particular person was
involved in a felony or misdemeanor, the officer is
authorized to forcibly stop and detain that person.
Finally, where the officer has probable cause to believe
that a person has committed a crime, an arrest is
authorized"
(People v Hollman, 79 NY2d, at 184-185 [internal citation omitted],
quoting People v De Bour, 40 NY2d, at 223). It is well settled
that when an officer asks an individual to provide identification
or destination information during a police-initiated encounter, the
request for information implicates the initial tier of De Bour
analysis (see, e.g., People v Hollman, 79 NY2d, at 190-191).
Although police officers have "fairly broad authority" to approach
and pose questions, they may not do so on mere "whim or caprice";
the request must be based on "an articulable reason not necessarily
related to criminality" (id., at 190). The resolution of this case depends on when De Bour
scrutiny was triggered and if, at that time, the police had an
objective, credible reason to justify the request that all
passengers produce tickets and identification. The People contend
that the police did not approach any particular passenger until the
investigator observed defendant and his companion secret a black
object, which provided the investigator with an articulable reason
to request information from defendant and his companion. But
starting De Bour analysis at this juncture overlooks the fact, as
found by County Court and the Appellate Division, that the
investigator initially asked every one of the passengers to present
documentation prior to any observations of passenger conduct. De
Bour was triggered at that point. The Appellate Division held that
this inceptive request was "satisfied by the articulable reason
that the officers were conducting drug interdiction on a commercial
passenger bus traveling from New York City, a known source city for
narcotic drugs" (People v McIntosh, 274 AD2d, at 741-742).
Defendant argues that law enforcement knowledge regarding the
origination of the bus was inadequate to establish a legal basis to
ask everyone traveling on the bus to produce identification and a
bus ticket. We agree with defendant. We have never held that a police encounter was justified
by anything so general as knowledge that an entire city is a known
source of drugs. Even a discrete area of a city identified as a
high crime area has not, by itself, been sufficient justification
for informational requests of the type involved here. For example,
in People v Hollman (79 NY2d, at 192-193), an undercover narcotics
officer at the Port Authority Bus Terminal in New York City
observed an individual and his companion standing 10 feet apart for
several minutes with a bag between them. The officer watched as
this person boarded a bus and placed the bag several seats away,
and then saw him push his companion's bag closer to his. These
actions were deemed to provide the police with an objective
credible reason for approaching the two men (see, id., at 193). In
People v Reyes (, 83 NY2d 945, 946, cert denied513 US 991), this
Court held that a police officer's request to stop was permissible
where a person "was observed in a 'drug-prone' area walking away
from a group of men and clutching the inside of his jacket beneath
his armpit as a marked police van approached." Similarly, the act
of a person carrying "an apparently heavy, though not full, travel
bag" while "walking in unison, as if marching in formation" with
others in "an area known for its narcotics and weapons activities
and the subject of a precinct alert that day" also warranted a
police approach in Matter of James R. (76 2 825, 826). And in
People v De Bour, we held that police officers legitimately
approached and inquired about a person's identity where "[t]he
encounter [] occurred after midnight in an area known for its high
incidence of drug activity and only after [the individual] had
conspicuously crossed the street to avoid walking past the
uniformed officers" (40 2 at 220 [internal citation omitted]). The events in all of these cases occurred in vicinities
classified by police as "drug-prone" or with a high incidence of
crime. Notably, we did not base our holdings on this factor alone.
In determining the legality of an encounter under De Bour and
Hollman, it has been crucial whether a nexus to conduct existed,
that is, whether the police were aware of or observed conduct which
provided a particularized reason to request information. The fact
that an encounter occurred in a high crime vicinity, without more,
has not passed De Bour and Hollman scrutiny (cf., People v Holmes,
, 81 NY2d 1056, 1058). A request for information might be justified, for
instance, if the officers had a "tip" or information that drugs
were being transported from New York City by bus that evening (see,
People v Alvaranga, 84 NY2d, at 986), or if the police had observed
defendant engaged in certain activity prior to boarding the bus and
then questioned him on the bus (see, People v Hollman, 79 NY2d, at
192-193). Similarly, if the police had information that a fugitive
was in the terminal, that could warrant the questioning of
passengers. De Bour, in short, does not prevent police officers
from following up on leads or from requesting information in
countless situations where there is an objective, credible reason
to question a person. Here, the record does not reflect any reason for the
request of all passengers to produce their tickets and
identification, other than the fact the bus had departed from a
place described by the investigator as “known as a source city for
narcotics." In the absence of any conduct by a passenger or other
basis giving rise to a particularized reason for the encounter, the
request of 15 passengers to produce documentation did not meet the
De Bour standard.
Nor does the investigator's observation of defendant
pushing a black object legitimize his earlier request of all
passengers. Since a police encounter cannot be validated by a
later-acquired suspicion (see, People v De Bour, 40 NY2d, at 215-
216), the investigator's subsequent observations of defendant do
not cleanse the initial request of its shortcomings under De Bour
and Hollman. We conclude that the procedure employed by three police
officers in boarding the bus and requesting that all of the
passengers produce tickets and identification was conducted without
an objective, credible reason. It follows that the ensuing search
of defendant's bag and jacket was unlawful. In light of our
determination, we need not consider defendant's remaining
constitutional challenges.
Accordingly, the order of the Appellate Division should
be reversed, defendant's guilty plea vacated, his motion to
suppress granted and the indictment dismissed.
People v Rawle McIntosh
No. 81
SMITH, J. (concurring):
On January 23, 1997, about 3:30 A.M. three police
officers boarded a bus in Albany, New York and announced that
they were conducting a drug investigation. Without reasonable
suspicion, they demanded the identification and bus tickets of
all of the passengers. No one was told that he or she had a
constitutional right to refuse the request. The sole reason for
this conduct was that the bus had arrived from New York City
which, according to the officers, was a major source of drugs.
I agree with the Majority that the police had no right to demand
that everyone produce identification and a bus ticket. I also
conclude that the defendant's Federal and State constitutional
rights were violated.
The facts indicate that the police boarded the bus,
announced a drug interdiction investigation and told everyone to
produce identification and a ticket. Specifically, a police
officer at the suppression hearing testified, “I announced we
were from the Sheriff's department, we were conducting
interdiction, we were looking for contraband, I would like to see
everyone's identification and bus ticket.” One officer
approached the defendant and his companion who were seated in the
back of the bus. Another officer stood midway of the bus and the
third officer stood at the door. One officer stated that he saw
the defendant and his companion push down on a black object
located between them. When the officer approached the two people
in the back of the bus, they told him that they had tickets but
no identification. When both looked away from the officer, he
asked them a second and then a third time to produce
identification and tickets. The third time, the two produced
tickets. The testimony of the officer was that both persons
volunteered that the officer could look in their bag. When the
officer removed the bag from the compartment near the seat, the
officer asked if they would consent to his looking in the bag.
When they both replied affirmatively, the officer looked in the
bag and found a scale. He then asked both persons to stand up
and requested to search defendant's jacket. Defendant consented
and a ball of cocaine was found. The two were arrested and
defendant, after the denial of his motion to suppress, pleaded
guilty to criminal possession of a controlled substance in the
second and third degrees.
In his omnibus motion, defendant asserted that the
police conduct violated his common law rights, as well as both
the Federal and State Constitutions.[1]
Specifically, defendant
argued that he was seized in violation of the Fourth Amendment,
that defendant did not feel free to disregard the police commands
(citing People v Hollman, , 79 NY2d 181, 194 which cited Florida v
Bostick501 US 429, 434) and that his consent was involuntary and
invalid.
The initial encounter was contrary to the police
conduct permitted by People v DeBour (, 40 NY2d 210). DeBour
describes four categories to evaluate police conduct when
approaching a citizen - a request for information, a common law
right to inquire, a stop based on reasonable suspicion in
accordance with Criminal Procedure Law 140.50(1) and an arrest
based on reasonable cause (40 2 at 227). The minimal
intrusion of approaching to request information is permissible
when the police have some objective, credible reason for the
interference. In People v Hollman (, 79 NY2d 181, 189), this Court
further explicated the first prong of the DeBour analysis,
stating “that even in their law enforcement capacity, police
officers have fairly broad authority to approach individuals and
ask questions relating to identity or destination, provided that
the officers do not act on whim or caprice and have an
articulable reason not necessarily related to criminality for
making the approach.” Here, the sole reason for boarding the
bus, confronting passengers and conducting this random
suspicionless search was that the bus was coming from New York
City, a locale where drugs exist and eight million people live.
The result of approving the conduct here would be that
any person leaving New York City on a bus or train would be
subject to being stopped by the police and requested to produce
identification and a ticket indicating his or her destination.
Consequently, people riding public transportation departing or
arriving from New York City would be subject to indiscriminate
police inquiry so long as the stated purpose for the intrusion
was to investigate for drugs.
Furthermore, the fact that the officer approached the
defendant and saw the defendant push something down, does not
provide a basis for the officer to demand to search or to conduct
a search of a bag. In People v Saunders (, 79 NY2d 181), this
Court refused to permit a search of a bag on consent when a
police officer observed conduct that he thought was suspicious,
namely that the defendant appeared nervous, looked around the
area and gave his place in line to another passenger. Similarly,
the defendant's behavior did not warrant a search of his bags and
defendant's alleged consent was both involuntary and the result
of unconstitutional police conduct see, (People v Gonzalez, , 39 NY2d 122).
This case is akin to a checkpoint stop of vehicles for
the investigation of drug activity, a procedure found violative
of the Fourth Amendment in City of Indianapolis v Edmond
(____US____, 121 S Ct 447), decided after the hearing in this
case. In Edmund, the Supreme Court reiterated that such stops
had to be based on reasonable suspicion:
“We decline to suspend the usual
requirement of individualized
suspicion where the police seek to
employ a checkpoint primarily for
the ordinary enterprise of
investigating crimes. We cannot
sanction stops justified only by
the generalized and ever-present
possibility that interrogation and
inspection may reveal that any
given motorist has committed some
crime” (121 S Ct, at 455).
In Florida v Bostick (501 US 429), the Supreme Court
indicated that pursuant to a program adopted by a Florida County,
police had a right to board a bus and ask a particular
individual, not the entire assembly of passengers, for
identification and a ticket. In that case, the police officers,
who were engaged in a drug interdiction program, told Bostick
before they searched his luggage that he had the right to refuse
consent. The Supreme Court addressed the limited issue of
whether “a police encounter on a bus of the type described above
necessarily constitutes a 'seizure' within the meaning of the
Fourth Amendment” (id., at 434). In remanding the case for
further proceedings, the Supreme Court stated that the
appropriate inquiry on whether Bostick had been seized was not
whether he felt free to leave but whether, considering all of the
circumstances of the encounter, “the police conduct would have
communicated to a reasonable person that the person was not free
to decline the officers' requests or otherwise terminate the
encounter” (id., at 439).
Here when the officers boarded the bus and demanded
that all of the travelers produce identification and tickets
without telling them that they had a right to refuse, positioned
themselves in three places in the aisle and persisted in
questioning the defendant after he tried to ignore them, their
conduct was arbitrary and constituted a seizure of the defendant
in violation of the Fourth Amendment and Article I, § 12 of the
New York State Constitution. That seizure had to be supported by
reasonable suspicion.
In sum, the police conduct violated defendant's common
law rights and his constitutional rights under the Fourth
Amendment and Article I, Section 12 of the State Constitution.
Footnotes
1 Article I, Section 12 of the New York State Constitution
reads, in part, the same as the Fourth Amendment and states
“[T]he right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.”