W.D.N.Y.: Not cooperating with an illegal detention under Terry doesn’t add to reasonable suspicion

On night patrol, a Rochester officer and a probation officer decided to stop defendant because he had a paper bag in his hand that conceivably could have had an open container in it. The stop was without reasonable suspicion because there was nothing to support the belief. In addition, the fact defendant was less than cooperative with his illegal stop doesn’t add to reasonable suspicion either. United States v. Singletary, 2014 U.S. Dist. LEXIS 111436 (W.D. N.Y. May 20, 2014):

Based on the “whole picture” as testified to by Officer Pfeffer, I find that the initial seizure of Singletary was not supported by an objective and particularized basis that would reasonably allow one to suspect that Singletary was engaging in criminal activity. Singletary was walking down a public sidewalk carrying an object that Officer Pfeffer thought might be a container holding a liquid. Tr. 12-13. The container itself was obscured by a brown paper bag. Id. The officers had received no reports of illegal behavior or suspicious activity in that area prior to the seizure of the defendant. Tr. 68. There was no evidence or suggestion of facts that might be consistent with the public consumption of an alcoholic beverage, such as a party or boisterous, loud, or unruly behavior. Contrary to the description contained in her police report, Officer Pfeffer testified she never observed Singletary carrying a can of any kind, let alone an open container filled with an alcoholic beverage. Tr. 17. Officer Pfeffer never observed Singletary stagger, stumble, or sway. Tr. 78. Officer Pfeffer never saw Singletary do anything or say anything to suggest he had been drinking. Indeed, despite watching Singletary closely both before and after turning the spotlight on him, Officer Pfeffer never saw Singletary raise the object he was carrying anywhere near his mouth. Tr. 73.

The defendant’s refusal to cooperate with Officer Pfeffer’s direction to stop is also not objective evidence that Singletary was engaging in criminal activity. “An individual approached by an officer who has no reasonable suspicion of wrongdoing may ignore the officer and go about his business, and his refusal to cooperate may not form the basis for his detention.” Muhammad, 463 F.3d at 123. See also United States v. Goines, 604 F. Supp. 2d 533, 542 (E.D.N.Y. 2009) (“The bare fact that [defendant] tried to leave the scene cannot create reasonable suspicion”). Officer Pfeffer’s testimony that it was after dark and Singletary was walking in a “high violence area” does not elevate Singletary’s behavior into a reasonable belief of criminal activity. Of course, “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Wardlow, 528 U.S. at 124. While Officer Pfeffer characterized the location as “high violence,” her decision to stop Singletary was not because of any evidence of suspected violence but was based solely on the fact that she surmised an object obscured by a brown paper bag was an open can of beer. As to the time of day, the stop here did not occur in the wee hours of the morning but at 10:45 in the evening — hardly a time when one would find walking down a public sidewalk particularly suspicious behavior.

I credit Officer Pfeffer’s testimony that she would have used the spotlight to illuminate anyone on the street that evening because the neighborhood was “a high violence area and I’m always interested to see who is down there.” Tr. 68. However, being “interested in who is down there,” no matter how well intentioned, does not permit seizures that do not conform fully to the Fourth Amendment. …