Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law Section 220.03), stemming from his possession of one piece of cocaine that he allegedly spat to the ground while present in a parking lot. This Court has conducted a Mapp/Dunaway hearing and for the reasons that follow, grants defendant's motion to suppress the cocaine.

The People's sole witness was Police Officer Frank Papa, a 10-year veteran of the New York City Police Department, assigned to the Street Narcotic Enforcement Unit of the 28th Precinct. The Court finds Officer Papa to be credible.

On August 22, 2003, he was in the front passenger seat of an unmarked car being driven by uniformed Officer Edward Seminety; Officer Paul Jelsisen sat in the back seat. At about 12:30 p.m., the officers were traveling westbound on 115th Street towards Eighth Avenue when, from about fifteen to thirty feet away, Officer Papa observed defendant standing inside a parking lot. The lot is "double depth" such that one may go from 115th Street through to 116th Street. According to Officer Papa, there had been "a lot of complaints from the community about people going in that lot and using drugs." Specifically, the complaints involved allegations "[t]hat there were people trespassing and smoking narcotics in the lot." He had personally assisted in some drug related arrests or issued some summonses in that lot on prior occasions.

Upon observing defendant for about one second, Officer Papa determined that he would approach him and directed Officer Seminety to stop the car. He acknowledged, however, that [*2]defendant had not been doing anything "illegal" or "suspicious" at that point. He specifically recalled that defendant was standing alone because "[i]f anybody else was standing there, they would have been stopped by [him] or Officer Jelsisen."

Within ten to thirty seconds, Officer Papa, accompanied by Officer Jelsisen, approached defendant. Papa was at the entrance to the gate at the edge of the lot on 115th Street when he saw defendant, from about forty feet away, "ma[ke] a motion to his mouth and put his hand down." He had not seen anything in defendant's hand prior to that time and did not know what defendant had placed in his mouth; indeed, it "[c]ould have been anything." Defendant was in the midpoint of the lot and "didn't run, resist, nothing" when Officer Papa approached him and told him to "spit it out". He then spat out a rock of crack cocaine "a little bit smaller than a pea", which Officer Papa recovered from the garbage-strewn ground.

The People, on the other hand, counter that "the directive given by Police Officer Papa was a level two intrusion" under De Bour. According to the prosecution, "defendant's actions when occurring in a drug-prone location created not only a founded suspicion of criminal activity, but created an exigency. The defendant's own actions created a risk that the officer was not only witnessing a misdemeanor being committed in his presence, but that the sole evidence would be destroyed but for the inquiry by the Officer" (People's Affirmation at ¶¶ 8 & 10). This Court disagrees.

The four-prong test set forth in De Bour to evaluate the propriety of police-initiated encounters is well-established:

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" (People v. De Bour, supra, at 226). 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"

The Hollman court further clarified the distinction between a level one request for information and a level two common-law right of inquiry as follows:

To that end, we emphasize that a request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object.[*3]

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Once the police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot

Contrary to the People's contention, the observations made by Officer Papa gave rise to, at most, the right to request information and not the level-two common-law right of inquiry (see, People v. Mitchell, 185 AD2d 163 [1st Dept. 1992], appeal dismissed 81 NY2d 819 [1993]).

Here, Officer Papa acknowledged that he had observed defendant for a mere second when he decided to approach him and that defendant had not acted in any suspicious manner prior to the officer's approach. Thus, notwithstanding any prior generalized complaints about that lot, Officer Papa did not see defendant smoking or otherwise using or possessing any drugs. Indeed, he admitted that had there been any other individuals standing in the lot, they would have been stopped as well. This, of course, merely confirms that his basis for any approach here was solely predicated on defendant's presence in the lot at midday during the summer.

And when Officer Papa finally approached defendant, he never sought to question him. He did not see anything in defendant's hand and merely observed him "ma[ke] a motion to his mouth and put his hand down." In fact, the officer had no idea what the defendant had placed in his mouth prior to ordering him to spit it out and candidly acknowledged that it "[c]ould have been anything."

Thus contrary to the People's assertion, there was no exigency here since the officer did not know that any crime, including a misdemeanor drug possession, was being committed by defendant. Accordingly, there was no attendant risk that the "sole evidence would be destroyed" but for his directive to "spit it out". Under the circumstances, there were no additional factors in the unfolding events subsequent to the officer's approach to elevate the encounter to a level-two inquiry, which requires a founded suspicion that criminal activity was afoot to permit the greater intrusion here.

Indeed, the encounter in this case was not a level-two inquiry, but rather a level three forcible seizure (compare, People v. Simkins, 256 AD2d 132 [1st Dept. 1998], lv denied 93 NY2d 979 [1999]). In Simkins, the defendant avoided uniformed officer six times during a 2½ hour period as she stood in high drug-prone location. She then walked across the street as the officer and his partner approached her. When asked about her identity and reason for being in the area, the defendant "mumbled unintelligibly in a manner suggesting the presence of something in her mouth." The First Department held that "[u]nder the circumstances, there was reasonable suspicion to believe that defendant was involved in a crime given the officer's prior observations of suspects secreting drug vials in their mouths during arrest encounters in this very area, and this justified ordering defendant to spit out the vials contained in her mouth" (id. at 132). [*4]

As the Court of Appeals has made clear, "the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed" (People v. Martinez, 80 NY2d 444, 447 [1992]; People v. Pines, 99 NY2d 525, 529 [2002]). For the reasons set forth above, it cannot be said that under any view of the facts known to Officer Papa, there was any basis for establishing the existence of reasonable suspicion in this case.

CONCLUSION

Based upon the foregoing, defendant's motion to suppress the cocaine recovered from the ground is granted.

This constitutes the Decision and Order of the Court.

Dated: New York, New York

March 31, 2004

Ruth E. Smith

Judge of the Criminal Court

Decision Date: March 31, 2004