Opinion
2006NY010937.
Decided on January 25, 2007.
A.D.A. Annie Siegel, N.Y. County District Att'y's Office, New York, NY 10013.
Ilissa Brownstein, Esq., The Legal Aid Society. New York, NY 10013.
New York's constraints on the authority of the police to pursue fleeing suspects have been lamented — in dissents, naturally — as contrary to "effective law enforcement" and "border[ing] on the absurd", People v. Howard, 50 NY2d 583, 594-95 (1980) (Jasen, J., joined by Gabrielli Wachtler, JJ., dissenting); "beyond reasonable comprehension or acceptance" and "Chaplinesque", People v. Holmes, 81 NY2d 1056, 1059-61 (1993) (Bellacosa, J., dissenting); and "ignor[ant of] the reality of . . . rapidly escalating street encounters", People v. Madera, 189 AD2d 462, 483 (1st Dep't) (Ross, J., joined by Kassal, J., dissenting), aff'd, 82 NY2d 775 (1993). The Supreme Court's treatment of a related issue in Illinois v. Wardlow, 528 U.S. 119 (2000), affords what I suggest is a welcome opportunity to re-think these constraints. Appellate courts which bind me, however, have persevered post- Wardlow in the pre- Wardlow course so harshly criticized in the dissents from which I have quoted. On constraint of those authorities, I grant suppression here.
Luis Quinones is charged in the above-captioned case with criminal possession of a controlled substance in the seventh degree. The People contend that on February 14, 2006, as the police approached Quinones in a Harlem apartment building lobby, Quinones fled, throwing cocaine to the ground as the police pursued. By motion papers filed April 28, 2006, Quinones moved to suppress the drugs and statements he made in the wake of his arrest. The People opposed the motion in papers dated May 26, 2006. By an oral order and worksheet endorsement of June 1, 2006, Judge Patricia M. Nunez ordered that a hearing be held to resolve the parties' conflicting positions. That hearing took place before me on November 13 and 15, 2006.
Following the hearing, the parties submitted legal memoranda which clarified their positions. In a letter-brief of December 1, 2006, Quinones contends that the police lacked adequate justification both to approach to question him, and to pursue when he ran. He contends that police testimony to his throwing the drugs, and the drugs themselves, should be suppressed as the fruits of these asserted improprieties. (While his brief does not explicitly address the statements, his position seemingly implies that they should likewise be suppressed as fruits of the intrusions which precipitated his arrest.) The People oppose these contentions in memoranda of November 14 and December 8, 2006, and January 16, 2007. According to the People, the police were justified in approaching Quinones to request information and in pursuing him when he fled.
I express appreciation for the thorough and zealous presentations by both attorneys.
This decision and order sets forth my findings of fact, conclusions of law, and the reasons for my determinations. As set forth below, I have concluded that the police were justified in approaching Quinones to request information. On constraint of appellate precedent, however, I have further concluded that New York law forbade the police from pursuing Quinones when he fled. Quinones's motion to suppress the fruits of that pursuit — the observations of his throwing the drugs, the drugs themselves, and his statements following his arrest — must therefore be suppressed.
FINDINGS OF FACT
Police Officer Christopher Zapata, who testified for the People as the only witness at the suppression hearing, did so in a credible manner, and Quinones has not challenged Zapata's version of the facts in his post-hearing submission. I find, therefore, that the facts were as Zapata described them. They may be summarized as follows:
Quinones did object at the hearing to my eliciting from Zapata certain facts germane to the suppression determination, an objection he renews respectfully in his post-hearing submission (Brownstein Dec. 1, 2006 letter at 3 n. 4). This objection lacks merit. As the Appellate Division held in People v. Casado, 83 AD2d 385, 386 (1st Dep't 1981), a suppression judge is not "merely an observer or referee required to play a passive role", and may question witnesses "where necessary to develop significant facts" or "elicit information relevant to the suppression issue to be decided by the court, when counsel has not brought it out". See also People v. Medina, 284 AD2d 122, 122 (1st Dep't 2001) (suppression judge properly advised prosecutor to elicit additional evidence); United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989) (suppression judge permissibly suggested that prosecutor call additional witness; judge must "establish the facts as clearly and completely as possible"). Indeed, suppression is not a defendant's personal remedy, but simply a societal device to deter future police misconduct. United States v. Calandra, 414 U.S. 338, 347-48 (1974); People v. Castillo, 80 NY2d 578, 583 (1992). Plainly, then, a defendant has no cause for complaint if the court's questioning makes clear that no misconduct occurred, and suppression would be counterproductive. Any suggestion that by doing so a judge is improperly "helping to make the People's case'" is "entirely unwarranted". Casado, 83 AD2d at 386.
In the fall of 2005, residents of the six-story Housing Authority apartment building at 115 East 122nd Street complained to the Police Department's Housing Bureau about trespassing in the building and drug sales occurring in the building's lobby. Zapata's superiors in the Bureau passed on the complaint to him, and Zapata thereafter performed daily "vertical" patrols of the building. During the fall and winter, he participated in ten to fifteen trespass or narcotics arrests in the building, most in the lobby. The prevalent illegal activity was not curtailed until early March.
At about 11:30 p.m. on the night of February 14, 2006, Zapata and his partner Schmall entered the building in plainclothes, their guns holstered but their shields displayed, to conduct a vertical patrol on their own initiative. As the officers entered the well-lit lobby, Quinones, whom Zapata did not recognize, was standing by the lobby elevator, about ten feet from the officers and face-to-face with them, conversing with a man later identified as Cedric Simms. Zapata could not hear what was being said.
Zapata announced that they were the police. Simms said something to Quinones, and Quinones fled towards a stairwell leading from the lobby to the upper stories of the building. The officers ran after him, Zapata leading, calling out "Police, stop!" As Quinones ran up the stairs, between the ground and second stories, Zapata, trailing shortly behind, saw Quinones throw or drop several small green ziploc baggies. Zapata recognized them from his police training and past arrests to be characteristic crack-cocaine packaging, and believed they contained crack-cocaine. Zapata called out words to the effect, "Police, don't move, I'm gonna catch you". Quinones kept running, and Zapata kept chasing.
Zapata finally caught up with Quinones on the fifth floor, where he found Quinones knocking on an apartment door. Zapata drew his gun, and ordered Quinones to remove his hands from his pockets. When Quinones failed to do so, Zapata pushed Quinones against the wall and Zapata and Schmall rear-cuffed him. Zapata asked Quinones his name and where he lived. Quinones stated, in substance, "I ran, but you didn't catch me with anything." At some point on the fifth floor, persons in the apartment Quinones had been trying to enter told the police they knew him. Quinones at some point told the police that he did not live in the building.
After apprehending Quinones, Zapata went back to where Quinones had thrown the baggies, and recovered four small green baggies of cocaine just a few steps above the door leading from the lobby to the stairwell. Simms, still downstairs, was arrested on a charge of loitering for the purpose of using narcotics.
The police brought Quinones to the station house. Zapata searched him and recovered $142 from his pockets. At about 1:22 a.m. that night, Zapata helped Quinones make a telephone call to his mother, and stood by while Quinones spoke to her. Zapata heard Quinones tell his mother, in substance, "I ran, but they didn't find me with anything".
CONCLUSIONS OF LAW
As noted, Quinones seeks suppression on the grounds that the police lacked adequate justification to approach him to request information, and to pursue him when he fled. These arguments state no claim under the Fourth Amendment, as Quinones seemingly does not dispute.
In this regard, a police officer's mere approaching of an individual in a public place, and the officer's putting of questions to him, does not constitute a Fourth Amendment "seizure" absent circumstances which would lead a reasonable person to conclude that he was not free to leave. Florida v. Bostick, 501 U.S. 429, 433-35 (1991); see also Illinois v. Lidster, 540 U.S. 419, 425 (2004); People v. Hollman, 79 NY2d 181, 194-95 (1992). The Fourth Amendment accordingly does not interdict such inquiries, even if carried out without any basis for suspecting the person questioned. Bostick, 501 U.S. at 433-35; see also Muehler v. Mena, 544 U.S. 93, 100-01 (2005). Quinones's complaint that the police lacked adequate justification to question him in the lobby therefore finds no support in the Fourth Amendment.
Nor is a person "seized" within the meaning of the Fourth Amendment when the police pursue or otherwise attempt to detain him, but have not yet laid hands on him, and he has not submitted to their authority. California v. Hodari D., 499 U.S. 621 (1991); Matter of Steven McC., 304 AD2d 68, 71 (1st Dep't 2003); United States v. Muhammad, 463 F.3d 115, 123 (2d Cir. 2006). Accordingly, the Fourth Amendment affords no basis either for suppressing the direct fruits of such a pursuit, such as property jettisoned by the fleeing suspect, Hodari D., 499 U.S. at 629; Steven McC., 304 AD2d at 71, or for suppressing the fruits of an ensuing seizure of the fugitive on the ground that the seizure was justified only by observations during the putatively-improper pursuit, Muhammad, 463 F.3d at 123; United States v. Swindle, 407 F.3d 562 (2d Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 279 (2005). Accordingly, Quinones's complaint that the police pursuit was improper affords no federal basis for suppression
New York, however, regulates police conduct more thoroughly. Here, as a matter of "State common law", Hollman, 79 NY2d at 194-96, even police-citizen encounters which do not rise to the "seizure" level are governed by court-crafted rules intended to balance the needs of law enforcement against citizens' interests in avoiding unjustified harassment. People v. De Bour, 40 NY2d 210 (1976); see also Hollman, 79 NY2d at 194-96 (rejecting Bostick-based argument for abandoning this jurisprudence). As pertinent here, the New York courts have forbidden police officers, on pain of suppression, from initiating questioning for law-enforcement purposes absent "an objective, credible reason, not necessarily indicative of criminality". Hollman, 79 NY2d at 184; see also id. at 188-90; De Bour, 40 NY2d at 222-23; People v. Grunwald, 29 AD3d 33, 37 (1st Dep't), appeal denied, 6 NY3d 848 (2006).
Further, the Court of Appeals, construing the State Constitution, has rejected the Hodari D. conclusion that a "seizure" of the person requires physical apprehension or submission to authority. People v. Bora, 83 NY2d 531, 534-35 (1994). Rather, "[u]nder New York law, one may be seized if the police action results in a significant interruption [of the] individual's liberty of movement'". Id. at 534 (alteration in original) (quoting De Bour, 40 NY2d at 216). In particular, police pursuit of a fleeing suspect has been determined to constitute a "limited detention", People v. Howard, 50 NY2d 583, 590-91 (1980); Steven McC., 304 AD2d at 71, or "infringement on freedom of movement", People v. Martinez, 80 NY2d 444, 447 (1992), rising to seizure level. See Howard, 50 NY2d at 590-92; see also Martinez, 80 NY2d at 447; Steven McC., 304 AD2d at 71 (State Constitution's construction unaffected by Hodari D.); People v. Holmes, 181 AD2d 27, 30 (1st Dep't 1992) (same), aff'd, 81 NY2d 1056 (1993).
Indeed, as a matter of State constitutional law, the police are forbidden from pursuing a fleeing suspect absent "reasonable suspicion that [the suspect] has committed or is about to commit a crime". Martinez, 80 NY2d at 446; see also People v. Pines, 99 NY2d 525, 527 (2002); People v. Sierra, 83 NY2d 928 (1994); People v. Holmes, 81 NY2d 1056, 1057-58 (1993); People v. Leung, 68 NY2d 734, 735-36 (1986); Steven McC., 304 AD2d at 71-72. "Reasonable suspicion represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'." Martinez, 80 NY2d at 448 (alteration in original) (quoting People v. Cantor, 36 NY2d 106, 112-13 (1975)); see also People v. Woods, 98 NY2d 627, 628 (2002); Steven McC., 304 AD2d at 71-72. Even flight which frustrates a proper police inquiry does not, absent reasonable suspicion, permit pursuit. Howard, 50 NY2d at 589-90; People v. Madera, 189 AD2d 462, 465-68 (1st Dep't), aff'd, 82 NY2d 775 (1993).
For a time, probable cause was thought to be required. Howard, 50 NY2d at 590-92. The more lenient reasonable suspicion standard was applied in Leung, 68 NY2d at 736, and definitively adopted in Martinez, 80 NY2d at 447-48.
Quinones stakes his claim on these State-law principles. More particularly, he asserts that Zapata and his partner possessed no objective, credible reason to question him in the lobby, and that their approach for that purpose was therefore unauthorized (Brownstein Dec. 1, 2006 letter at 4-6). Further, he asserts that they lacked reasonable suspicion justifying their pursuit when he fled ( id. at 6-7). I address these points in turn.
The first claim lacks merit. As noted, the police may approach and request information based simply on "an objective, credible reason, not necessarily indicative of criminality". Hollman, 79 NY2d at 184, 189-90, 194-96. Here, Zapata knew that the building in which he encountered Quinones was afflicted with trespassing and drug activity, much of it in the lobby, and it was there that he found Quinones, whom he did not recognize, in the middle of the night. As a City police officer, Zapata was a "custodian of the New York City Housing Authority buildings, [whose] duties include[d] keeping the buildings free of trespassers". People v. Williams, 16 AD3d 151 (1st Dep't), appeal denied, 5 NY3d 771 (2005). Against the backdrop of Zapata's recent experiences, his observations plainly gave him "an objective, credible reason" for speaking to Quinones in order to assure himself that no trespass or drug activity was occurring, notwithstanding that he saw nothing "necessarily indicative of criminality", Hollman, 79 NY2d at 184, 189-90, 194-96.
People v. Tinort, 272 AD2d 206 (1st Dep't 2000), bears this out. In Tinort, a police officer encountered the defendant in a "drug-prone" building the owner of which had lodged a "trespass affidavit" with the police, and where the officer had made recent arrests. This, the Court held, provided an "objective credible reason" warranting the officer's asking the defendant where he lived. Id. at 206. The facts here are virtually on all fours. As in Tinort, Zapata knew of a recent complaint to the police about trespassing in the building. Further, like the Tinort officer, he knew from his own recent arrests that trespassing and drug activity were in fact rife there. Tinort therefore disposes of Quinones's first argument. I note in passing that other recent decisions likewise approve police inquiries under circumstances scarcely, if at all, distinguishable from those here. See, e.g., People v. Anderson, 306 AD2d 54 (1st Dep't 2003) (defendant among group of nine or ten descending to lobby of drug-prone trespass-affidavit building); People v. Thompson, 260 AD2d 242 (1st Dep't 1999) (officer conducting vertical patrol in Housing Authority building, familiar with many residents, did not recognize defendant); People v. Babarcich, 166 AD2d 655 (2nd Dep't 1990) (defendant in courtyard of drug-prone building posted with "no trespassing" sign); People v. Dozier, 12 Misc 3d 128 [A], 2006 NY Slip Op 50926[U] (App. Term 1st Dep't) (defendant in common area of drug-prone City-owned trespass-affidavit building), appeal denied, 7 NY3d 812 (2006).
Quinones does not address Tinort in his letter-brief, and the authorities he cites do not undermine it. As for People v. Holland, N.Y.L.J., May 2, 1997, at 31, col. 4 (Sup.Ct. NY County), it preceded Tinort, which is of superior precedential authority. Likewise, People v. Banks, N.Y.L.J., June 27, 1997, at 27, col. 3 (Sup.Ct. NY County), if contrary to Tinort, must bow to that subsequent holding. In any event, Banks is sharply distinguishable from the facts in Tinort (and here), for the Banks court noted a lack of evidence that the building there was known to be a "high crime" area or "the subject of any particular series of complaints of criminal activity". Nor do Williams and Dozier serve Quinones's purpose. He argues that the officers in those cases had more reason to question than Zapata, citing Williams's reference to the defendant's unspecified "behavior" in the lobby, 16 AD3d at 151, and gleaning from the Dozier briefs that the officers there had been tipped to a recent marihuana sale, and that when they found the defendant in the lobby, he was apparently drinking alcohol. But these efforts rest on the "dubious logic . . . that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it", United States v. Knights, 534 U.S. 112, 117 (2001); cf. United States v. Onumonu, 967 F.2d 782, 789 (2d Cir. 1992) ("[t]he issue . . . is not . . . whether there was less cause for reasonable suspicion than in some of our other . . . cases; the issue is whether reasonable suspicion existed in this case") (citations omitted). Simply put, if the Williams and Dozier officers had still more reason to question than Zapata, that would not imply that Zapata's reasons were inadequate. Further, Quinones's efforts to distinguish Dozier are unsatisfactory even on their terms. In that regard, the Dozier marihuana-tip evidence was elicited at trial, not the suppression hearing, Brief for Defendant-Appellant at 4-7, 15-19; Brief for Respondent at 4-5, 7-9, Dozier, 2006 NY Slip Op. 50926[U] (No. 05-016), and thus could not have supported affirmance of the denial of suppression, see People v. Riley, 70 NY2d 523, 532 (1987); People v. Millan, 69 NY2d 514, 518 n. 4 (1987). Further, the Dozier suppression court eschewed reliance on the public-drinking evidence, Brief for Defendant-Appellant at 10, Dozier, and the defendant therefore argued vigorously on appeal that this testimony was unavailable to support the suppression ruling, Reply Brief for Defendant-Appellant at 1-4, Dozier. Since the Appellate Term made no mention of it, it likely played little, if any, role in the Court's analysis.
Quinones's second claim, that the police lacked justification to pursue him, is more substantial; indeed, for the following reasons I believe myself constrained by precedent to agree with it.
As noted above, police pursuit is regarded under the New York Constitution as a form of seizure which must be justified by "[r]easonable suspicion", i.e., "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'", Martinez, 80 NY2d at 448 (alteration in original) (quoting People v. Cantor, 36 NY2d 106, 112-13 (1975)). While pursuits are not Fourth Amendment "seizures", the reasonable suspicion concept is, of course, a familiar one in Fourth Amendment jurisprudence, where it serves as the prescribed predicate for a valid investigatory stop, Terry v. Ohio, 392 U.S. 1, 30 (1968); see also United States v. Arvizu, 534 U.S. 266, 273 (2002). Indeed, reasonable suspicion was adopted as New York's pursuit predicate precisely due to the perceived parallel between the degree of detention effected by a stop and that effected by a pursuit. Martinez, 80 NY2d at 447; Madera, 189 AD2d at 464.
It is therefore noteworthy that the Supreme Court, in Illinois v. Wardlow, 528 U.S. 119 (2000), considered the significance of flight in generating the reasonable suspicion required for a Terry stop. In Wardlow, the Court wrote that "[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such". Id. at 124. Accordingly, the Court found that reasonable suspicion was created when the defendant, standing with a bag in an area known for drug-trafficking, saw police officers and fled. Id. at 121-26.
Thus, under Wardlow, "[w]hen the noticed presence of officers provokes a suspect's headlong flight in a high crime area, the officers are justified in suspecting criminal activity on the part of the suspect and a Terry stop is warranted". Muhammad, 463 F.3d at 121. Like the Wardlow defendant, Quinones was seen by the police in a crime-afflicted location, and, like the Wardlow defendant, he fled immediately upon realizing that the police had arrived. Thus, if Wardlow's reasonable suspicion analysis were controlling, Quinones's suppression claim would fail.
New York courts have not expressly rejected Wardlow. See People v. McCullough, 31 AD3d 812, 813 (3rd Dep't), appeal denied, 7 NY3d 850 (2006); Steven McC., 304 AD2d at 71. Nonetheless, State precedent compels the conclusion that New York requires police pursuit to be justified by a higher degree of reasonable suspicion.
In this regard, the Court of Appeals, like Wardlow, has recognized that in assessing reasonable suspicion a "defendant's flight may be considered in conjunction with other attendant circumstances". Martinez, 80 NY2d at 448; see also Steven McC., 304 AD2d at 72. Indeed, "[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit". Holmes, 81 NY2d at 1058; accord Woods, 98 NY2d at 628; Matter of Manuel D., 19 AD3d 128, 129-30 (1st Dep't), appeal denied, 5 NY3d 714 (2005); Steven McC., 304 AD2d at 71. But the Court of Appeals has also written that "[f]light alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit". Holmes, 81 NY2d at 1058; see also Manuel D., 19 AD3d at 130; Steven McC., 304 AD2d at 71. And New York authorities, both before and after Wardlow, support the conclusion that Quinones's flight, even in conjunction with the "equivocal" circumstance of his late-night presence in the lobby, did not meet New York's distinctively demanding reasonable suspicion standard.
Among pre- Wardlow cases, Holmes is representative. There, a uniformed officer saw the defendant loitering with a bulge in his pocket and talking with other men "near a known narcotics location". The defendant walked away from the group as the officer's patrol car approached, and fled when the officer asked him to come over. 81 NY2d at 1057. The Court noted that the officer may have been justified in approaching to request information. However, the Court noted that the officer had seen nothing "indicative of criminality", and that many areas of New York City may "unfortunate[ly]" be described "as high crime neighborhoods' or narcotics-prone locations'". Accordingly, the Court determined that the officer's pursuit was unjustified, mandating suppression of the narcotics the defendant threw while being chased. Id. at 1058.
Plainly, Holmes is in tension with Wardlow, and the Court of Appeals, post- Wardlow, has not explicitly resolved the tension, see Pines, 99 NY2d at 526-27; Woods, 98 NY2d at 628-29. However, post- Wardlow decisions in the various departments of the Appellate Division make clear that they adhere to New York's more demanding pre- Wardlow construction of the reasonable suspicion pursuit standard.
In People v. Brogdon, 8 AD3d 290 (2nd Dep't 2004), for example, the defendant was seen loitering at night in the vestibule of a drug-prone residential building. He was also seen speaking to, and then walking with, one known to have been arrested for drug possession and banned from the premises. Nonetheless, the Second Department, relying on Holmes, held that when the defendant fled the police, they were forbidden to pursue, mandating suppression of a gun he threw as they caught him. Id. at 291-92. McCullough, a Third Department case, is in the same vein. There, a detective saw the defendant emerging from the back yard of a drug-plagued building, the landlord of which had asked the police to rid the building of criminals. 31 AD3d at 812. Although the detective knew the defendant had relatives there, the detective had also arrested the defendant at least twice at the building for trespass and drug possession, and had repeatedly warned him off the premises. Id. In determining whether the detective properly pursued when the defendant saw him and burst into flight, the McCullough Court, with a " cf." signal, took note of Wardlow. However, citing Holmes as controlling, the Court held that the detective was forbidden to pursue, mandating suppression of drugs thrown during the pursuit and contraband found on the defendant after his apprehension. Id. at 812-13.
Still another case along similar lines is People v. Lobley, 31 AD3d 1161 (4th Dep't 2006). The officers there, knowing that a building had been the subject of drug, trespass, and loitering complaints, saw the defendant, who they knew lived elsewhere, standing by a group of men sitting on the stoop. On seeing the officers, the defendant fled into the building. The Fourth Department, citing Holmes, held that the officers were not permitted to pursue, and that the gun the defendant threw during the chase must therefore be suppressed. Id. at 1162-63. Finally, Matter of Emmanuel O., 32 AD3d 948 (2nd Dep't), appeal dismissed, 7 NY3d 920 (2006), is particularly instructive. There, New York City police officers arrived at 1:40 a.m to investigate a reported "party" at a residential building in a "high crime area". Id. at 949. Indeed, the building was in a public housing development which had been "designated a target zone' within the precinct because of numerous shootings and narcotics sales that had taken place there". Id. at 950 (dissenting mem.). On arriving, they encountered several youths, including the respondent, in the building's vestibule. Id. at 949. As the officers tried to ascertain whether the youths lived there, the respondent suddenly fled into the building. The Second Department, citing Holmes, ruled by a three-to-two vote that the officers' pursuit was unjustified, mandating suppression of a gun the respondent dropped while fleeing and crack cocaine seized from him after his apprehension. Id. at 949-50. Notably, it would seem that the Court of Appeals perceived no legal error in this ruling, for it dismissed the presentment agency's appeal "upon the ground that the two-justice dissent at the Appellate Division [was] not on a question of law". 7 NY3d at 920.
It would belabor the obvious to argue at length that these holdings weigh against the People's argument. To be sure, Officer Zapata saw Quinones standing at night in a building lobby known to have been used for illegal purposes in recent weeks. But presumably the lobby was also used innocently by many. Simply put, Zapata cannot be said to have had stronger pre-flight grounds for suspecting Quinones than the police had in Brogdon, McCullough, Lobley, and Emmanuel O., not to mention Holmes, which these later cases treated as of unimpaired authority. Quite arguably, he had less. I am therefore constrained by these authorities to grant Quinones's claim that the New York Constitution forbade Zapata from pursuing him and entitles him now to suppression of the fruits of that pursuit.
The People's efforts to distinguish these cases (Siegel Jan. 16, 2007 letter) are resourceful, but in my view strained and unpersuasive. Without attempting an encyclopedic response, I note several examples: First, the People ascribe significance to the supposition that the building at issue in Emmanuel O. may not have been a public housing building, as was the one here ( id. at 2). But the Emmanuel O. majority described it as a "residential building", 32 AD3d at 949, and the dissenters made clear that it was in a "public housing development", id. at 950. Second, the People suggest that the Lobley holding may have turned peculiarly on the Lobley Court's view that the defendant, initially seen outside the building, had at most committed non-criminal trespass not justifying a forcible stop (Siegel Jan. 16, 2007 letter at 4). I think it clear from the Lobley memorandum that this was at most an alternative rationale supporting the Court's principal conclusion that no reasonable suspicion of illegal behavior justified pursuit. Notably, the Lobley Court, in explaining its result, repeatedly cited those passages in Holmes emphasizing that pursuit must be justified by reasonable suspicion. 31 AD3d at 1163 (citing Holmes, 81 NY2d at 1056, 1058). And third, the People suggest that Quinones's case may be distinguishable from the others because Officer Zapata, never having seen Quinones before, had reason to believe that Quinones was not a tenant ( id. at 5). But that would not avail Quinones vis-a-vis McCullough and Lobley, in each of which the officer actually knew the defendant was a non-resident. In any case, while Zapata testified at the hearing to having patrolled the building for some time, the People laid no foundation for drawing the inference that he could reliably have surmised from his failure to recognize Quinones that Quinones was not a resident or guest in the building. Simply put, Zapata was not asked at the hearing how thoroughly he knew the building's tenants — much less their guests.
Several counter-arguments by the People merit further treatment:
First and foremost, the People rely greatly on the Appellate Term's decision in Dozier (e.g. Siegel Dec. 8, 2006 mem. at 4-5), handed down in May of last year. Both attorneys have reviewed the Dozier briefs, as have I, and I have also reviewed the Dozier appellate record. Notwithstanding Dozier's reference to the officers' having "follow[ed]" the defendant in that case, 2006 NY Slip Op. 50926[U], the record demonstrates that they in fact pursued him as he fled into a stairwell, just as occurred here. Indeed, the People argue, and I agree, that Dozier — in which the denial of suppression was affirmed — is materially indistinguishable from Quinones's case.
As noted supra n. 4, Quinones has strived to distinguish Dozier in his post-hearing letter-brief. For reasons set out there, I find his efforts unpersuasive.
Thus, if I were I deciding this case the day Dozier was handed down, I would rule another way. But the very Court which decided Dozier, and to which any appeal from my order would be taken, regards itself as bound, absent contrary precedent of the Court of Appeals or Appellate Division, First Department, to follow decisions of other departments of the Appellate Division. People v. Brisotti, 169 Misc 2d 672 (App. Term 1st Dep't 1996). Contra People v. Graham, 177 Misc 2d 542 (App. Term 9th 10th Dists. 1998), aff'd on other grounds, 93 NY2d 934 (1999). A fortiori, I am likewise bound. And since my reading of the post- Dozier McCullough, Lobley, and Emmanuel O. holdings conflicts with Dozier, I have chosen to follow what I take to be the logic of those cases.
The People also rely (Siegel Nov. 14, 2006 mem. at 2; Siegel Dec. 8, 2006 mem. at 5-6) on People v. Jones, 196 AD2d 788 (1st Dep't 1993). Insofar as the People suggest that Jones is factually congruent with Quinones's case, I disagree. Notably, the officers in Jones not only observed the defendant late at night near a drug-prone building, but saw him "with a bag in one hand and counting money in the other". Id. at 788. Thus, Jones implicates the principle that "[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit", Holmes, 81 NY2d at 1058 (emphasis added). Here, there were no such circumstances, save Quinones's presence in a lobby often used for illegal purposes. Under the precedents I have discussed, and notwithstanding Wardlow, I am constrained to find this inadequate as a matter of New York law.
The People also infer from Jones that where a suspect flees, like Quinones, prior to any police inquiry, pursuit is particularly justifiable — perhaps even where post-inquiry flight would be forbidden (Siegel Nov. 14, 2006 mem. at 2). And to be sure, pre-inquiry flight has at times been distinguished from the "exercise of the right not to respond", and on that basis deemed particularly suitable to serve as a contributing factor justifying pursuit. People v. Johnson, 186 AD2d 420 (1st Dep't 1992); see also People v. Allen, 141 AD2d 405, 407 (1st Dep't 1988), aff'd, 73 NY2d 378 (1989); People v. Hill, 127 AD2d 144, 147-49 (1st Dep't), appeal dismissed, 70 NY2d 795 (1987). But even pre-inquiry flight, absent "specific circumstances indicating that the suspect may be engaged in criminal activity", Holmes, 81 NY2d 1058, does not meet New York's demanding reasonable suspicion standard. See, e.g., id. at 1057 (police merely asked defendant to come over); Lobley, 31 AD3d 1162 (police made eye contact and "asked him to stop'"); McCullough, 31 AD3d at 812-13 (detective and defendant saw each other); Manuel D., 19 AD3d at 129 (officer said "what's going on, guys"); Madera, 189 AD2d at 463 (police merely approached). And precedent forces the conclusion that there were no such "specific circumstances" here.
Next, the People stress, throughout all their post-hearing submissions, that Officer Zapata's inquiry, which Quinones's flight frustrated, was legitimate. As I have said, I agree. But it is a well-settled feature of New York law that pursuit may not be defended simply on the premise that the suspect's flight cut off legitimate investigative questioning. See Howard, 50 NY2d at 589-90; Madera, 189 AD2d at 465-68.
And finally, the People stress that Quinones's flight occurred inside an apartment building, indeed a City-owned apartment building (e.g., Siegel Dec. 8, 2006 mem. at 6). The tenor of this argument is that this circumstance gave the police greater latitude not only to request information from Quinones, but to pursue him, than would otherwise have been the case. But while the Court of Appeals has said to consider all "attendant circumstances", including the "location", in determining whether reasonable suspicion exists, Martinez, 80 NY2d at 448, I have searched in vain for a Court of Appeals or Appellate Division holding suggesting that the reasonable-suspicion standard itself is diminished where a suspect's flight occurs in an apartment building, or that police officers' proprietary custodianship of public housing premises gives them detention authority there that they would lack elsewhere. If anything, Emmanuel O., in which the suspect fled into a Housing Authority apartment building, see supra n. 5, implies the contrary. Cf. Lobley, 31 AD3d at 1162-63 (pursuit improper despite flight into residential building); People v. Mejia, 198 AD2d 178 (1st Dep't 1993) (flight into building); People v. Mitchell, 185 AD2d 163 (1st Dep't 1992) (same), appeal dismissed, 81 NY2d 819 (1993); People v. Lawrence, 145 AD2d 375 (1st Dep't 1988) (flight into residential apartment building), appeal dismissed, 74 NY2d 732 (1989); Matter of Mariono V., 107 AD2d 638 (1st Dep't 1985) ("running up a flight of stairs").
Before ending, I note that my conclusion here, reached in an effort at faithfulness to our State's appellate precedents, causes me dismay. "The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness.'" People v. Batista, 88 NY2d 650, 653 (1996) (quoting People v. Chestnut, 51 NY2d 14, 22 n. 7 (1980)). Were I writing on a clean slate I would say without hesitation that Officer Zapata acted reasonably when he pursued Quinones into the upper stories of the building whose residents the officer was sworn to protect, and, indeed, that it would have been unreasonable of him to act otherwise.
To be sure, I subscribe to the principle at the wellspring of New York's pursuit jurisprudence, i.e, that our citizens' "right to be let alone" must be respected. Howard, 50 NY2d at 590 (internal quotation marks omitted); see also Holmes, 81 NY2d at 1058. But there are less onerous ways to exercise that right than headlong flight from an officer who has not even had a chance to explain the subject of his inquiries. Such flight will accordingly suggest to a reasonable officer, as it suggested to Zapata, not merely an exercise of the entitlement to be "let alone", but the manifestation by the fugitive of a fear that even minimal interaction with the officer will reveal criminal conduct. Thus, "[a]llowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning". Wardlow, 528 U.S. at 125. I would welcome reexamination of New York's jurisprudence in light of Wardlow.
My task, however, is to apply controlling precedent as I find it. That precedent, I have concluded, forces the conclusion that Zapata's pursuit of Quinones was unjustified. The People have not argued that any of the observations, tangible property, or statements at issue in this litigation were acquired by means sufficiently attenuated from the pursuit to be admissible if the pursuit itself was improper. Accordingly, I will not consider any such argument, which in any case would apparently be unavailing.
For the foregoing reasons, Quinones's motion for suppression is granted.
It is so ordered.