The defendant is charged with two counts of criminal possession of a weapon in the second [*2]degree ^[FN1] and disorderly conduct.^[FN2], ^[FN3] On July 26, 2007, a Mapp-Huntley was held before this court. At this hearing Sergeant Kevin Komorsky and the defendant, Jaiquane Edmond, testified. Their testimony differed a great deal and the court finds neither wholly credible. At the end of the hearing, both parties requested additional time to submit post-hearing memoranda of law, which they both did.

FINDINGS OF FACT

On December 21, 2006, at around 8:00 to 8:20pm, a group of five or six individuals, including the defendant, were congregating in front of 85-02 Rockaway Beach Boulevard, which is part of a public housing complex referred to as the Hamel Houses. They were "blocking the pedestrian walkway going into the building" (Transcript at 5-6).^[FN4] The Sergeant, in an unmarked car with two other officers, pulled over, turned on the red bubble lights, and the Sergeant, with his shield out, told them to leave the area. They nodded and started to walk away in apparent compliance with the Sergeant's directive. Upon seeing this group walk away, the police left the scene.^[FN5]

The Sergeant, in the same car, came back to the same building two or three minutes later. Although the defendant was there again, it is unclear whether the others were with him were a part of the same group the Sergeant asked to leave earlier (Transcript at 12). Again, he asked them to leave. Once again, they appeared to leave in compliance with the directive and the Sergeant left.

About two minutes later the Sergeant once again returned and the same group was there (Transcript at 7). This time, however, the three police officers, for the first time, exited the unmarked police vehicle. The Sergeant believed the group was impeding the pedestrian walkway [*3]and having been given two prior opportunities to leave,^[FN6] now the officers "were going to stop, question and frisk, possible [sic] summons all the individuals in front of the building" (Transcript at 18).

The officers told all of them to put their hands on the wall. The defendant, along with the others, complied and put their hands up (Transcript at 20, 21). "He reached, he checked me. He reached in my pants pocket and he found a gun" (Transcript at 21-22).^[FN7] The defendant told the Sergeant: "You know what's going on here. I need it for protection" (Transcript at 9).^[FN8]

ARGUMENT AND CONCLUSIONS OF LAW

The People argue that the seizure of the weapon was justified as the product of a search incident to a lawful arrest in that the police had probable cause to arrest the defendant for disorderly conduct (Penal Law § 240.20, either as an obstruction of pedestrian traffic [subdivision 5] or as a refusal to comply with a lawful order of the police to disperse where the defendant was congregating with others in a public place [subdivision 6]) or resisting arrest (Penal Law § 205.30).^[FN9] In the alternative, the People argue that the seizure of the weapon was justified as the product of a level three intrusion under People v De Bour, 40 NY2d 240 (1980) (either as the police having reasonable suspicion and thereby allowing the search or as level two intrusion elevated to a level three intrusion due to the flight of the defendant, under People v Sierra, 83 NY2d 928, 929 [1994] and People v Martinez, 80 NY2d 444 [1992]^[FN10]).^[FN11] [*4]

In De Bour ^[FN12], the Court of Appeals set forth a graduated four-level test for evaluating street [*5]encounters initiated by the police. As each level increases, the amount of permitted police intrusion increases, from the simple request of information to the loss of liberty and a full-blown search.

—Level one permits a police officer to approach a person and request information and requires that the request be supported by merely an objective, credible reason, not necessarily indicative of criminality;

—Level two, the common-law right of inquiry, a somewhat greater intrusion, requires a founded suspicion that criminal activity is afoot;

—Level three allows an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual committed or is about to commit a crime and once a person is lawfully stopped, under level three, the officer is authorized to frisk the person if the officer reasonably believes that he or she is in danger of physical injury (see CPL 140.50 [1], [3]; People v Carney, 58 NY2d 51,54-55 [1982]; People v Cantor, 36 NY2d 106, 112 [1975]);

—Level four, arrest, requires reasonable cause to believe that the person to be arrested has committed a crime

(People v De Bour, 40 NY2d at 223; People v Hollman, 79 NY2d 181, 184-185 [1992]; People v Moore, 6 NY3d 496, 498-499 [2006]).

The problem with the People's argument is that level three of DeBour does not apply in this case. First, level three does not apply to petty offenses. Second, level three only allows for a frisk in limited circumstances and does not allow a full-blown search which, if this court were to follow the People's version of the facts, the officer conducted by reaching into the defendant's pocket. Third, it is highly questionable that what the defendant did allowed the officer to conduct a frisk. And, fourth, there is no evidence that there was reasonable suspicion that the defendant had or was about to commit a crime.

Level Three of De Bour Does Not Apply to Petty Offenses

In 1976, the Court of Appeals established the four levels of DeBour. As the court wrote the third level is:

"Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd. 1; see Terry v Ohio, 392 US 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v Cantor, supra). A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of [*6]physical injury by virtue of the detainee being armed (CPL 140.50, subd. 3)." [emphasis supplied]

People v De Bour, 40 NY2d 210, 223 (1976). De Bour recognized that the authority for the level three intrusion comes from statute (i.e., "statutory right"), in particular, subdivision one of CPL 140.50. CPL 140.50 (1) states:

In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.^[FN13] [emphasis added]

In 1992, the court revisited DeBour in People v Hollman, infra, and once again defined level three and limited it to felonies and misdemeanors:

"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." [emphasis added]

People v Hollman, 79 NY2d 181, 185 (1992).

Last year, the Court of Appeals once again stated the level three standard and limited it to felonies and misdemeanors:

"level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor." [emphasis added]

People v More, 6 NY3d 496, 498-499 (2006).

And just last month the Court of Appeals held:

"Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1])." [emphasis added]

(In the Matter of Victor M, ___ NY2d ____, 2007 Slip Op 07742, *3 [Oct. 16, 2007], 2007 WL 2988758).

Therefore, petty offenses, such as disorderly conduct, are excluded from level three intrusions. [*7]

Level Three of De Bour Does Not Allow a Full-blown Search

Level three of De Bour only allows for a frisk (in limited circumstances) and does not allow a full-blown search. Even if this court were to accept the People's version of the facts by crediting the Sergeant's testimony as to the seizure of the gun, there is no evidence that the officer saw a bulge or felt a gun by frisking before he reached into the defendant's pocket for the gun. Even if this court were to credit the Sergeant's testimony that the defendant ran, tried to enter the building, reached into his pocket and then the Sergeant grabbed the defendant's hand from inside his jacket pocket, told him to put his hands up and again reached into the defendant's pocket and pulled out a gun, this would not justify his actions under level three. Reaching into a person's pocket does not constitute a frisk, but rather a full-blown search that requires probable cause (People v Hill, 171 AD2d 1017 [4th Dept 1991] citing People v Bernard, 41 NY2d 759, 763; People v Peters, 18 NY2d 238, 245; affd. 392 US 40; People v Joslin, 32 AD2d 859). Courts have consistently held that under level three, when there is a fear for the officer's or the public's safety, a "limited" pat-down or frisk is permitted (People v Benjamin , 51 NY2d 267 [1980])^[FN14]. In People v Rodriguez, 177 AD2d 521 (2d Dept 1999), the officers observed the defendant and others standing behind a car and a person, other than the defendant, with a license plate and a screwdriver. When the police approached they saw "the defendant furtively turn his back and suddenly reach towards his waistband" (id. 522). The court found that the officer was

"justified in taking the reasonable precautionary measure of restraining the defendant's arms in order to ensure his safety...and upon feeling the hard object in the defendant's waistband, the officer acted properly in conducting a frisk of the defendant's person and securing the loaded handgun which that search produced" (id.).

In the instant case, if the court were to credit the Sergeant's testimony that he feared for his safety, when he put his hand into the defendant's pocket and pulled the defendant's hand out of that pocket, there is no evidence that he felt the weapon or an object consistent with a weapon when he pulled the hand out, or that he saw a bulge, or that after he pulled the hand out he felt the pocket to see if there was a weapon. While the People are correct that the police do not have to wait until they see the "glint of steel" before they can act to preserve their safety (People v Benjamin, 51 NY2d 267, 271 [1980]), they are incorrect in how it would apply to the instant case. The act to preserve the officer's safety was a frisk (id.), not a full-blown search by reaching into the pocket without first frisking. If one were to credit the Sergeant's testimony, once he put his hand into the defendant's pocket to remove the defendant's hand, since he did not simultaneously feel a weapon, or see a bulge, Benjamin does not allow the officer to conduct a subsequent full-blown search into that pocket.

Accordingly, even if level three applied to the instant situation, it would have allowed the officer [*8]to conduct a limited frisk and not a full-blown search.

It Is Highly Questionable That What the Defendant Did Allowed the Officer to Conduct a Frisk

Even if the reaching into the pocket of the defendant constituted a frisk, it is highly questionable that the Sergeant could, under the standards of the applicable law, frisk the defendant. If this court were to accept the testimony from the Sergeant relevant to this issue, this court would find that the defendant upon seeing the Sergeant leave the police car, went to the front door of the apartment building and tried to open the door by tugging on the door and when he could not open the door, the defendant reached into his pocket.

There is not evidence that, on its face, constitutes a dangerous situation that the police encountered on December 21st. While the Sergeant testified that since that summer there were numerous gang-related shootings in the area and that a couple of months prior to December he was caught in a cross-fire in the same area, this does not, in and of itself, mean that the officers were in a dangerous situation. There is no evidence that there were reports of a person with a gun in that area.^[FN15] What the officer saw was a person who was standing in front of a building not — on the face of it — doing anything other than standing around, and upon seeing the police approach, left, tried to open a door and upon not being able to, reached into his pocket.

"Behavior which is susceptible of innocent as well as guilty interpretation cannot constitute probable cause and innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand [citations omitted].'People v De Bour, 40 NY2d 210, 216; see also, People v Farrell, 90 AD2d 396; affd 59 NY2d 686; People v Allen, 109 AD2d 24, 32)."

People v Miller, 121 AD2d 335 (1st Dept 1986). In the instant case, why wouldn't the officer think that the defendant was reaching into his pocket to get his key (see id.; People v Marine, 142 AD2d 368 [1st Dept 1989]). While the People argue that the defendant does not live in that building, there is no evidence that he knew that at the time he entered the instant situation.

Second, there was no testimony that the officer observed a bulge in the pocket, although that too would have had limited import in this case ("[U]nlike a pocket bulge which could be caused by any number of innocuous objects, a waistband bulge is telltale of a weapon" [People v DeBour, 50 NY2d at 221]).

The fact that the Sergeant's suspicion regarding the defendant turned out to be correct cannot serve to establish the necessary, probable cause (People v De Bour, 40 NY2d 210, 216; People v Scott D., 34 NY2d 483, 490 [1974]). [*9]

There Is No Evidence That There Was Reasonable Suspicion That the Defendant Had or Was about to Commit a Crime

What crime — that is felony or misdemeanor ^[FN16] — did the defendant commit or was about to commit by standing around in front of a building? The People do not argue that it was a crime, but rather the violation of disorderly conduct.^[FN17]

Reasonable suspicion is defined as "the quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106, 112-113 [1975]). There is no testimony that the defendant committed a crime or was about to commit a crime by standing in front of the apartment building.

Therefore, level three does not apply to the instant situation. Accordingly, the only rationale to allow this search would be if the search had been incident to a lawful arrest.^[FN18] Therefore, the issue is whether the police had probable cause to arrest the defendant for a criminal offense.^[FN19]

Level Four and Probable Cause

The People argue that the police had probable cause to arrest the defendant for disorderly conduct (Penal Law § 240.20, either as an obstruction of pedestrian traffic [subdivision 5] or as a refusal to comply with a lawful order of the police to disperse where the defendant was congregating with others in a public place [subdivision 6]) or resisting arrest (Penal Law § 205.30).

The arrest of an individual, and any search made incident to the arrest, are unlawful unless supported by probable cause (see People v Hicks, 68 NY2d 234). While probable cause does not require as much proof as is necessary to sustain a conviction, it does require more than mere suspicion (People v Wharton, 60 AD2d 291, 292; affd 46 NY2d 924; cert denied 444 US 880). Conduct which is equally susceptible to innocent or culpable interpretation cannot give rise to probable cause (People v Carrasquillo, 54 NY2d 248, 254; People v De Bour, 40 NY2d 210).

Probable Cause and Disorderly Conduct Through the Obstruction of Pedestrian Traffic [*10]

The People argue the Sergeant saw the defendant and others "blocking the pedestrian walkway going into the building" (Transcript at 5-6). Obstructing pedestrian traffic, is only an element of disorderly conduct. As disorderly conduct is not a strict liability offense, the act of obstruction is simply not enough, it must be done "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law § 240.20).

The disorderly conduct statute was "designed to proscribe only that type of conduct which has a real tendency to provoke public disorder" (Commission Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int. 3918, Assembly 5376] § 250.05, at 388, as quoted in People v Benjamin, 185 Misc 2d 466, 468 [Crim Ct NY County 2000]). This conduct must be "of public rather than individual dimension" (People v Munafo, 50 NY2d 326, 331 [1980]). This conduct is evaluated by considering "the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny" (id.; see also People v MR, 12 Misc 3d 671 [Crim Ct, NY County 2006]; People v Millhollen, 5 Misc 3d 810 [City Ct, City of Ithaca 2004]; People v Griswold, 170 Misc 2d 38 [County Ct, Yates County 1996]). Accordingly, a defendant cannot be guilty of breach of the peace if he "annoyed no one, disturbed no one, interfered with no one" (People v Perry, 265 NY 362, 365 [1934]).

Further, disorderly conduct exists only where the offending conduct is "reinforced by a culpable mental state to create a public disturbance"(People v Tichenor, 89 NY2d 769, 775 [1997]; see also People v Munafo, 50 NY2d at 331; People v MR, 12 Misc 3d 671).

As stated before, there is no testimony whatsoever as to whether anyone tried to pass the group and were unable to do so or even whether anyone else was around. Again, the only evidence is that the defendant and the others were just congregating in front of a building and no evidence other than a conclusory statement that they were blocking the pedestrian walkway, but no evidence as to whether anyone tried to pass or whether anyone else was around.

Accordingly, there was no probable cause to arrest the defendant for disorderly conduct under this subdivision.

Probable Cause and Disorderly Conduct: Refusing to Comply with a Lawful Order of the Police to Disperse

This type of disorderly conduct requires the defendant, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" to congregate with other persons in a public place and refuse to comply with a lawful order of the police to disperse (Penal Law § 240.20 [6]). However, just refusing to comply with an order is insufficient proof of a violation of this statute:

At times even a mere refusal to comply with the directions of a policeman, who may act in an arbitrary and unjustifiable way, does not constitute disorderly conduct.' Mere disobedience of an [*11]officer is not always an offense punishable by law, any more than his command is not always the law.

(People v Arko, 199 NYS 402 [App Term, 2d Dept 1922]). In the instant case, the defendant and others were congregating in front of the subject building. When the police came by and told them to disperse, the Sergeant saw them complying with the order by walking away. The defendant and others appeared to go and when, a few minutes later, the defendant and either the same group or possibly others went back to the subject building were told again to leave and the Sergeant once again saw them comply by walking away. The Sergeant a few minutes later came back to the building, saw the same group and this time exited the car. What is totally absent from the testimony is the explanation as to what the legal foundation for the order to disperse.

The People argue in their memoranda of law — for the first time and without ever questioning the Sergeant about what order he was thinking about when he told them to disperse — that the lawful order to disperse comes from subdivision five of section 402 of the Public Housing Law. In this section, the police assigned to patrol public housing

"shall have the power and it shall be their duty, in and about housing facilities, to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct free passage; protect the rights of persons and property; guard the public health; remove all nuisances; enforce and prevent violation of all laws and ordinances; and for these purposes to arrest all persons guilty of violating any law or ordinance and shall provide for the performance, without unnecessary delay, of all recording, fingerprinting, photographing and other preliminary police duties." [emphasis added]

The People argue that this was an assemblage which obstructed free passage. But again, there is not testimony that if someone tried to pass that they would not be able to do so or that anyone tried to pass and that it was blocked. Without such testimony, there is no evidence that the assemblage was unlawful, dangerous or obstructing free passage.

Accordingly, there is a lack of probable cause based on this coupled with the arguments in the previous section as to the element of intent.

Probable Cause and Resisting Arrest

The People argue that the defendant by running away from the Sergeant created probable cause to arrest for resisting arrest. It should be noted that this court did not credit the testimony of the Sergeant that the defendant, upon seeing the police officers exit the car said "oh, shit," turned around and ran 30 feet to the building door and tried to get in without using a key which lead to [*12]the defendant putting he hand in his pocket.^[FN20] However, even if this court were to credit such testimony, the running away would not rise to the level of probable cause. A key element of resisting arrest is the requirement that the arrest be authorized — in other words that the arrest was premised on probable cause.^[FN21] Additionally, the officer never testified to telling the defendant to halt, or that he was being arrested when the defendant allegedly ran. As stated above, there was no probable cause for arresting the defendant for disorderly conduct, so there can be no resisting arrest.

Probable Cause

Once the police encountered the defendant for a third time, they exited the vehicle for the first time. The purpose, as stated by the Sergeant, was to stop, question, frisk, and possibly summons all the individuals in front of the building. However, the police never testified as to whether he or any other officer inquired as to whether the defendant, or anyone with the defendant, lived in the subject building or was visiting someone in the building (see e.g. People v Hendricks, 43 AD3d 361 [1st Dept 2007]). Nor was there any testimony that the defendant was congregating in front of this building for any reason other than to exercise his right of freedom of assembly, as recognized in the first amendment of the United States Constitution (made applicable to the states through the 14th amendment) and Section 9 of Article I of the New York State Constitution. Nor was there any testimony as to whether anyone tried to walk by or enter the building and they were unable to do so because of the group's blocking of the entrance. Since there is no probable cause, the Sergeants act of reaching into the defendant's pocket was improper under Article 1, Section 12 of the New York State Constitution. There is no reasonable analysis that would allow this court to find this search proper.

Accordingly, the handgun is suppressed. The statement is also suppressed as a fruit of a poisonous tree since it flowed from the unlawful stop, search and seizure of the defendant (Wong Sun v United States, 371 US 471).^[FN22] [*13]

This opinion constitutes the decision and order of the court. IT IS SO ORDERED.

DATE:November 7, 2007___________________________________

Kew Gardens, NYJOEL L. BLUMENFELD,

Acting Justice of the Supreme Court