# People v. Perez > Appellate Division of the Supreme Court of the State of New York · August 4, 2016 · 142 A.D.3d 410 URL: https://www.frixlaw.com/law-library/cases/9835273 ## Case - **Full name:** The People of the State of New York, Respondent, v. Rafael Perez, Appellant - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** August 4, 2016 - **Citations:** 142 A.D.3d 410; 37 N.Y.S.3d 243 - **Precedential status:** Published - **Opinion:** Dissent by Gische - **Judges:** Manzanet-Daniels, Gische, Mazzarelli, Sweeny, Kahn - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9835273 ## Opinion text Manzanet-Daniels and Gische, JJ., dissent in a memorandum by Gische, J., as follows: I respectfully dissent, because I believe that from the inception of his encounter with the police, defendant’s conduct was consistent with his constitutional right to avoid contact with the police. In addition, the subsequent observation by the police of an otherwise undefined bulge under defendant’s sleeve did not furnish the officers with the requisite reasonable suspicion or a basis for believing that the person subjected to the intrusion was armed and potentially danger *418 ous. Under these circumstances, the police detention and frisk of defendant by grabbing his wrists, pulling up his sleeves, and removing a weapon from his body was not justified. In evaluating the propriety of police conduct, the analysis is confined only to the information known to the officers at the time of the encounter (People v Cruz, 129 AD3d 119, 121 [1st Dept 2015]; People v Coles, 48 AD2d 345, 347 [1st Dept 1975]). Facts that come to light through the subsequent unraveling of events, or that are later established at trial, do not bear upon whether the initial stop was conducted in a constitutionally permissible manner. The testimony at the suppression hearing revealed that on the evening of October 12, 2005, three police officers were performing vertical patrols inside a NYCHA building in the Castle Hill Housing Development. The officers were dressed in plain clothes, but displayed their shields around their necks. Castle Hill Housing was known to be a high-crime area. While on the seventh floor, the officers saw the elevator door open and several people exit, followed by defendant, who was wearing a black T-shirt over a mustard-yellow hoodie with the hood covering his head. Defendant took one step out of the elevator, but upon seeing the officers he “went back into the elevator.” Officer Rodriguez thereupon asked him, “Can you hold the door, police, hold the door?” According to Officer Rodriguez, defendant “kept pressing the elevator button to close the door.” The elevator doors closed, and the cab ascended. Officer Rodriguez testified that because there had been a lot of narcotics traffic in the building, the officers wanted to ascertain whether defendant lived in the building. The officers climbed the stairs and encountered defendant standing in the ninth-floor hallway. When Officer Rodriguez approached defendant, he identified himself as a police officer and asked defendant if he lived in the building. Defendant did not respond, and turned to face the wall with his head down looking towards the ground. Officer Rodriguez again asked defendant if he lived in the building, and again defendant did not answer. Officer Rodriguez then noticed a bulge underneath the sleeve of defendant’s right arm. Defendant’s hands were hidden inside the sleeves of his sweatshirt, and he was holding them stiffly and in a “straight down” position. When Officer Rodriguez asked defendant if he had any weapons, defendant did not respond. Officer Rodriguez instructed defendant to show him his hands, and repeated the request several times. With defendant continuing to ignore his requests, Officer Rodriguez testified that he became concerned for his safety, causing him to grab defendant’s wrist, at which *419 point he felt a metal blade. Officer Rodriguez then rolled up defendant’s sleeve and observed the silver tip of a machete, and ordered defendant to drop it. When defendant did not do as directed, Officer Rodriguez physically removed a machete from inside defendant’s sleeve. Defendant was then placed under arrest. Only after defendant was apprehended did Officer Rodriguez learn, through a phone call to Sergeant Charles Hyland, that a robbery had been reported as having occurred earlier in the day, within close proximity to the Castle Hill Houses. The report indicated that the complainant had been robbed by two males, one wearing a red jacket and the other wearing a black shirt over a mustard-yellow hoodie sweatshirt and wielding a machete. Sergeant Hyland, upon learning from Officer Rodriguez that defendant matched the description of the assailant, directed that defendant be held at the scene. The complainant was then brought to the scene, and defendant was identified as one of his assailants. “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] [internal quotation marks omitted]). Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue “was justified in its inception and whether ... it was reasonably related in scope to the circumstances which created the encounter” (People v Powell, 246 AD2d 366, 368 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998]). The lawfulness of police-initiated encounters with private citizens is governed by the graduated four-level test first outlined in People v De Bour ( 40 NY2d 210, 223 [1976]; see also People v Hollman, 79 NY2d 181 [1992]). The degree of restraint on an individual’s freedom of movement must correlate with the necessary level of suspicion to warrant the intrusion. Under level one, a police officer may request information from a person provided that the request is supported by an objectively credible reason that need not be necessarily indicative of criminality. A level two encounter, also known as the common-law right of inquiry, permits a more invasive line of questioning of a person when the officer has a founded suspicion that criminal activity is afoot. A level three encounter allows the police to forcibly stop and detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Finally, under a level four encounter, an arrest is authorized when the police *420 have probable cause to believe a person has committed a crime (De Bour, 40 NY2d at 223 ). Applying these oft-cited and well recognized principles, I believe that even if the police were justified at the inception of their contact with defendant in making a reasonable inquiry, the nature of the interaction thereafter did not raise the level of allowable intrusion to a level three. At level three, the facts supporting reasonable suspicion would have been required before the police could have detained defendant. Moreover, since the police physically grabbed defendant’s wrists, patted down his arm, rolled up his sleeves and removed the machete, a particularized reasonable belief that defendant was armed and dangerous would have been required (see People v Russ, 61 NY2d 693, 695 [1984]; People v Gonzalez, 295 AD2d 183, 184 [1st Dept 2002]). “ [Reasonable suspicion [to justify a seizure] has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand” (Matter of Jaquan M., 97 AD3d 403 , 406 [1st Dept 2012], appeal dismissed 19 NY3d 1041 [2012], quoting People v Sobotker, 43 NY2d 559, 564 [1978]). It is well settled that a private citizen has the constitutional right not to respond to police inquiries (Illinois v Wardlow, 528 US 119, 125 [2000]; People v Major, 115 AD3d 1, 5 [1st Dept 2014]). “[Wjhile the police [have] the right to make the inquiry, defendant ha[s] a constitutional right not to respond” (People v Howard, 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980]). The Court of Appeals has described the right to be left alone as the “distinguishing factor” between the lower levels of limited permissible police intrusion that authorize investigatory questioning and the right to forcibly detain, which requires a reasonable and articulable basis to suspect involvement in criminal activity (see People v Major, 115 AD3d at 5 ; People v Moore, 6 NY3d 496, 500 [2006]). At bar, defendant’s conduct in retreating into the elevator to go to another floor, his physically turning away from the police when they found him, and his refusal to respond to police commands or questions during this process all constitute permissible avoidance behavior. We do not agree with the majority that these facts justify a conclusion of “flight” or “active escape.” In People v Johnson ( 109 AD3d 449 [1st Dept 2013], appeal dismissed 23 NY3d 1001 [2014]), this Court held that a person’s desire to avoid contact with the police is not an objectively credible reason for making a level one inquiry. We also held that the fact that the avoidance behavior occurs in a high- *421 crime neighborhood, including where trespassing and drug activity occur, does not elevate police avoidance conduct into a level one inquiry (id. at 450; Matter of Michael F, 84 AD3d 468 [1st Dept 2011]). A fortiori, conduct that does not support a level one encounter cannot support the level three encounter that occurred in this case. Even if the recent Court of Appeals decision in People v Barksdale ( 26 NY3d 139 [2015]) in any way limited our holding in Johnson, the result would still be the same in this case. In Barksdale , the Court of Appeals held that in a private building voluntarily participating in a police protection program, and otherwise restricted by signage and a lock, a level one encounter was supported by the “coupling of defendant’s presence in the subject building with the private and protected nature of that location” (id. at 143-144). In Barksdale , it was the defendant’s answers to police inquiry that provided the probable cause necessary for arrest, and the weapon recovered was only incident to and after that arrest. At bar, even assuming that under Barksdale , defendant’s conduct may have been sufficient to support a level one inquiry, the nonresponsive conduct by defendant did not raise the level of permitted police intrusion to level three. In fact, given that defendant actually lived in the building, if he had truthfully answered the police, questioning would have presumably stopped. If a defendant’s resistance to answering the police could in itself be relied upon to justify the frisk, then the right to inquire “would be tantamount to the right to seize, and there would, in fact, be no right ‘to be let alone.’ That is not, nor should it be, the law” (People v Holmes, 81 NY2d 1056, 1058 [1993], affg 181 AD2d 27 [1st Dept 1992]). This is so because the De Bour/Hollman framework requires escalating measures of suspicion as necessary to justify each graduated level of intrusion (People v Garcia, 20 NY3d 317, 322 [2012]). We agree with the majority that encounters between private citizens and police are dynamic, but the dynamics of every encounter do not necessarily escalate every encounter to the point of an authorized stop and frisk. The further observation of an otherwise unidentifiable bulge on defendant’s arm did not give the officers reason to believe that defendant had committed a crime or that he was in possession of a weapon justifying a frisk (People v Crawford, 89 AD3d 422 [1st Dept 2011]). Even at close range, the shape of the bulge was not readily discernable to the officers and “bore no obvious hallmarks of a weapon” (Matter of Jaquan M., 97 AD3d at 408; see People v Fernandez, 87 AD3d 474 [1st Dept *422 2011]). Without any further indication that defendant was armed and posed a threat to the safety of others, such as seeing “the outline of a gun,” the seizure was not authorized (People v Blackman, 61 AD2d 916 , 916 [1st Dept 1978]). The officer’s stated concern that defendant had a weapon was not supported by any corroborative observations, such as sudden movements or threatening gestures (see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Smith, 267 AD2d 98 [1st Dept 1999], lv denied 95 NY2d 804 [2000]). The record is devoid of testimony that defendant moved or adjusted his arm where the bulge was observed, or that he even moved at all. Officer Rodriguez’s expressed fear for his own safety, without the supporting objective information, does not justify a required finding of a particularized reasonable suspicion (see People v Oquendo, 221 AD2d 223, 224 [1st Dept 1995], appeal dismissed 88 NY2d 1004 [1996]). There were no other additional objective indicia of criminality present to justify the officer’s actions in this case. From the moment the officers first saw defendant in the elevator up until the time of his arrest, the officers simply had no knowledge that there had been a robbery in the area or that defendant matched the complainant’s description of one of his assailants. It was only after defendant had been arrested that Officer Rodriguez learned for the first time, through a telephone conversation with Sergeant Hyland, about defendant’s potential involvement in the robbery (compare People v Joyce, 58 AD3d 476 [1st Dept 2009], lv denied 12 NY3d 818 [2009]; People v Santiago, 253 AD2d 673 [1st Dept 1998], lv denied 92 NY2d 985 [1998]). Clearly, a different circumstance regarding police intrusion would have been present had this information been known before defendant was actually arrested. Accordingly, I would reverse the November 29, 2006 conviction of robbery in the first degree and grant defendant’s motion to suppress physical evidence, the showup identification and statements he made to the police, and remand this matter for a new trial, preceded by an independent source hearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9835273. Public record. Not legal advice.