NY1: When there’s no justification for a stop, one may walk away from the police telling you to stop

A black Lexus was stopped in at 115th and Lenox in Harlem. While the driver was outside the car talking to the police, defendant came up, and the driver reached in the car and handed him a black bag, and defendant walked away. Defendant’s stop was without reasonable suspicion of any wrongdoing, and the motion to suppress should have been granted. He had the right to walk away from the police because there was no justification for the stop, and defendant’s conduct was neither suspicious nor was it flight because the police had no suspicion about the bag. People v. Major, 2014 NY Slip Op 00197, 2014 N.Y. App. Div. LEXIS 191 (1st Dept. January 14, 2014):

Thus, this case stands in contrast to those cases where flight was found because the defendant engaged in furtive or evasive conduct (see e.g. People v Emiliano, 81 AD3d 436, 916 N.Y.S.2d 61 [1st Dept 2011], lv denied 17 NY3d 794, 952 N.E.2d 1097, 929 N.Y.S.2d 102] [running away from the police]; People v Austin, 100 AD3d 1010, 954 N.Y.S.2d 480 [2d Dept 2012], lv denied 21 NY3d 1002, 993 N.E.2d 1275, 971 N.Y.S.2d 253 [2013] [ducking behind a building]; People v Flores, 88 AD3d 902, 931 N.Y.S.2d 342 [2d Dept 2011], lv denied 18 NY3d 858, 962 N.E.2d 291, 938 N.Y.S.2d 866 [2011] [changing direction and increasing pace]). In light of the Court of Appeals jurisprudence on this issue, we cannot hold that defendant’s walking at a hurried pace along the sidewalk, without more, was sufficient to constitute flight because that would impermissibly conflate a level two common-law inquiry with a level three forcible stop (see Moore at 500-501). Thus, the seizure that occurred here was not supported by reasonable suspicion, and the evidence should have been suppressed.

Contrary to the dissent’s view, People v Martinez (80 NY2d 444, 606 N.E.2d 951, 591 N.Y.S.2d 823 [1992], supra) does not support a finding of reasonable suspicion here. In Martinez, the defendant was seen removing an item known to be used in concealing drugs. Moreover, the defendant in Martinez ran with the police in pursuit. Here, although we find that Detective Mongelli had a founded suspicion of criminality, he did not see an item that he explicitly associated with a drug transaction. Moreover, defendant here did not run from the police, but actually walked toward their direction. Thus, the police did not have reasonable suspicion or even come close to it. As the Court of Appeals noted in Moore, conduct that triggers level two of the DeBour test only allows the police “to follow defendant while attempting to engage him — but not to seize him in order to do so” (6 NY3d at 500).