New York City Police Department's use of "stop, question and frisk" tactics has been the subject of controversy in our courts for more than a decade (see generally, Floyd v. City of New York, 813 F. Supp. 2d 417[SD NY 2011]; Daniels v. City of New York, 99 Civ. 1695[SAS][SD NY 1999]). While it is clear that police can briefly stop any individual upon reasonable suspicion that a crime is being committed (see generally, Floyd v. City of New York, 2012 US Dist. Lexis 68676 [SD NY 2012]), the issue here is whether the stop, question and frisk search violates the Fourth and Fourteenth Amendments to the United States constitution and Article 1, §12 of the State Constitution when the activity initiating the frisk is a violation.^[FN1] Relying upon CPL §710.20(1) and CPL § 60.45,^[FN2] Defendant Steven Aponte [*2]initially sought evidentiary suppression of a box cutter that was found on his person by Police Officer Nelson Garcia while searching him during a frisk. Subsequently, Defendant limited his omnibus motion to the suppression question in his post-hearing submission (see, Post-Suppression Hearing Memorandum, p. 19).

In response to the omnibus motion, the Court held a Mapp-Huntley-Dunaway ^[FN3]hearing on April 4, 2012, where the parties were given leave to submit evidence concerning whether a "pat down" search that produced the box cutter ^[FN4] and included Defendant's statements concerning disorderly conduct ^[FN5] violated the Fourth Amendment's constitutional protections against unreasonable searches (see generally, In re M. A., 188 Misc 2d 714 [Fam. Ct. Bronx 2004]).

Findings of Fact

Our Legislature requires a court determining suppression motions to set forth upon the record its

findings of fact, conclusions of law, and reasons for determination (see, CPL § 710.60[6]). As required, the Court does so here (see, People v. Dover, 294 AD2d 594 [2nd Dept. 2002]):

This incident occurred on November 28, 2010, at 4:18 a.m. in Bronx County (Tr. page 5). Officer Garcia, assigned to the 46th Precinct, was working with a "conditions team" when he observed Defendant and other individuals congregating at Featherbed Lane and Nelson Avenue (Tr. pages 5 to 8). The group was blocking the sidewalk, acting boisterously and interfering with pedestrian traffic from a nearby social club (Tr. page 10).

When Officer Garcia arrived at the scene, he ordered the group to disperse and clear the sidewalk. However, Defendant remained fast and instead questioned the officer's authority while making certain statements that he now seeks to suppress. In reaction, the officer ordered Defendant against a wall and frisked him. Officer Garcia's justified the frisk primarily upon safety concerns.

During the frisk, the officer discovered a box cutter in Defendant's waist band, arrested him and transported him to the local station house. At the precinct, Officer Garcia questioned Defendant about his pedigree and determined that Defendant was subject to Administrative Code §10-134.1 (e) based, in part, upon age, which Defendant admitted to being less than 21 years old.^[FN6] In regard to his hearing testimony, [*3]the Court finds Officer Garcia to be plausible and credible in all respects.

Defendant's Position

Defendant argues for suppression of the box cutter because the prosecutor fails his burden to establish a reasonable cause to frisk (see generally, People v. Dodt, 61 NY2d 408 [1984]). Under any circumstances, a prosecutor's burden requires plausible and credible evidence which, Defendant says, has not been produced (see generally, People v. Void, 170 AD2d 239 [1st Dept. 1991]).

Defendant says the stop and frisk here is neither legally, nor factually, justified as it lacks a plausible basis. Defendant's legal argument is that the stop and frisk violates the Fourth and Fourteenth Amendments, as well as NY State Const., Art. 1, §12, because no probable cause existed for the frisk, the conduct extant amounting only to a violation (see generally, People v. De Bour, 40 NY2d 210 [1980 ]).^[FN7] While claiming law enforcement cannot frisk upon mere suspicion that a violation was committed, Defendant apparently admits a frisk is valid where, in fact, a violation occurred in the officer's presence (see, CPL §140.10[1][a]).

Concerning factual issues, Defendant did not behave in an improper manner and his conduct gave no reasonable grounds for anyone to conclude that police safety was compromised. Defendant says the Court must disregard safety concerns since a law enforcement agent's otherwise unsubstantiated subjective belief of danger cannot justify a frisk (see generally, People v. Forrest, 77 AD3d 511 [1st Dept. 2010]; People v. Gonzalez, 295 AD2d 183 [1st Dept. 2001]). Defendant says the record shows he was engaged in normal behavior when Officer Garcia approached him, and, as such, his conduct provided no basis for a frisk. Under any circumstances, Defendant says, the prosecutor fails to show Defendant annoyed the community, persisted after receiving police warnings, or created a disordered risk (see generally, People v. Maher, 137 Misc 2d 162 [Crim Ct. New York 1987]).^[FN8]

Based thereupon, Defendant says no reasonable cause exists to have justified the frisk; thus, the box cutter cannot be used in this prosecution (see generally, People v. Square, 2008 NY Slip Op 51632U [Crim Ct. New York 2008]). Further, Defendant claims Officer Garcia went beyond frisking into a full-blown search for contraband for which he lacked probable cause (see generally, People v. Robinson, 125 AD2d 259 [1st Dept. 1986]).

Prosecutor's Position

The District Attorney opposes suppression, arguing instead that the police officer had both reasonable cause to conduct the frisk and probable cause to charge disorderly conduct (see generally, People v. Todaro, 26 NY2d 325 [1970]). In addition, the officer was empowered to frisk upon a common law right to ensure his own safety (see generally, People v. King, 102 AD2d 710 [1st Dept. 1984] affirmed, 65 NY2d 702 [1985]).

Turning to the statements made to Officer Garcia during the investigation, the prosecutor says each statement was voluntarily given and no Miranda warning was required. Further, the admissions qualify as res gestae and as such should not be suppressed (see generally, People v. Garcia-Lopez, 308 [*4]AD2d 366 [1st Dept. 2004]; People v. Wells, 133 AD2d 385 [2nd Dept. 1987]). Finally, the prosecutor characterizes each statement as made during a permissible street investigation (see generally, People v. Huffman, 41 NY2d 29 [1976]).

Conclusions of Law

Initially, the Court finds Defendant retains the ultimate burden, at a suppression hearing, of proving illegal police conduct, while the People have the initial burden of going forward concerning legality of police conduct (see People v. Jackson, 30 Misc 3d 1202(A)[Sup Ct. Bronx 2010]).

Concerning the instant suppression motion, the prosecutor relies exclusively upon Officer Garcia's testimony. Defendant called no witnesses. After hearing Officer Garcia's testimony and observing his demeanor, the Court finds such testimony to be credible. Upon this record, Defendant's motion to suppress evidentiary use of the box cutter is denied. Instead, the Court finds Officer Garcia possessed reasonable cause to conduct the frisk and he acted in accordance with statutory and constitutional limitations even though the underlying offense was a violation (see, People v. Nichols, 250 AD2d 370 [1st Dept. 1998]).

In testing constitutional limits for a stop and frisk, the United States Supreme Court in Terry v. Ohio, 392 US 1 (1968) set forth factors to weigh when determining whether a stop and frisk is constitutional: (1) the police officer must observe unusual conduct; (2) such conduct leads to a reasonable suspicion that criminal activity may be afoot; and (3) the officer must have the ability to point to specific facts justifying the suspicion.^[FN9] In the instant case, the police met all factors applicable to stop and frisk.

The Criminal Procedure Law codifies Terry and authorizes police officers to make limited intrusions upon personal liberty in public places for investigative purposes.^[FN10] In 1985, the Legislature addressed frisks that arose in the context of felonies and misdemeanors (see, CPL §140.50 [3]). The statute empowers an officer, who stops a person, and who reasonably suspects danger of physical injury, to search such person for a weapon capable of inflicting such injury and such weapon is of a sort not ordinarily carried in public places by law-abiding persons (see, People v. Square, supra.).^[FN11] While the statute applies to felonies and misdemeanors, the Court finds that police retain power to frisk even in violation situations where the officer must always be accorded the right to take protective and precautionary measures as the situation might dictate (see generally, Evans v. Solomon, 2011 US Dist. Lexis 15624 [ED NY 2011]) (see also, People v. King, supra.).

In People v. De Bour, 40 NY2d 210 (1976), our Court of Appeals established a four-level [*5]analysis for evaluating police conduct in street encounters. As relevant here, when applying the analysis, De Bour finds that where police have reasonable suspicion that the person committed, is committing, or is about to commit a crime, a stop and detain to gain explanatory information is sanctioned. Police may also pat-down a suspect for weapons if it is reasonable to suspect danger of physical injury (see generally, De Bour, supra. at 223 (citing CPL §140.50[3]). Finally, police may arrest a defendant and take him into custody when probable cause exists that the defendant is committing, has committed or is about to commit a crime (but see generally, People v. Tyler, 30 Misc 3d 1218(A) [Sup Ct. New York 2011]).

Case Law

In considering the instant motion, the Court finds that the issue of whether a stop and frisk applies to criminal violations has only been sparingly addressed by our courts. Notwithstanding, the Court of Appeals provided guidance in at least one case that predates the enactment of CPL §140.50(3). The High Court teaches that a stop arising from a violation does not ordinarily justify a frisk, but does permit a limited pat down for a concealed weapon because there a defendant acted in an uncooperative and suspicious way (People v. King, supra.). The Appellate Division, in a case factually similar to that presented here, found a frisk is permitted where a violation is involved when a defendant exhibits uncooperative conduct (see, People v. Nichols, supra.).

The Nichols defendant was detained for an Administrative Code violation, but, nevertheless, exhibited nervousness and hostility toward the officer. The Appellate Division reasoned that the Nichols defendant's conduct provided a reasonable belief that he could be armed, thereby placing safety into issue. The view that a frisk for a violation can invoke safety concerns for a police office is shared by at least one additional court where unlawful possession of marijuana was involved (see, Penal Law §221.05) (see, People v. Jason F., 694 NYS2d 908 [Just. Ct. Horseheads Village 1999]) and in a case involving the Vehicle & Traffic Law (see generally, People v. Jones, 39 AD3d 1169 [4th Dept. 2007]).

In Jason F., supra., although the defendant was eventually acquitted upon other issues, the Court approved the stop and frisk where unlawful possession of marijuana was the only charge. Likewise, in a traffic violation case, police officers frisked passengers in a lawfully stopped vehicle to the extent necessary to guard their safety acting on reasonable suspicion that criminal activity was afoot and an articulable basis concerning fear for their own safety (see, People v. Jones, supra.). Further support for safety concerns in violation cases arises in People v. Hazelwood, 104 Misc 2d 1121 [Crim Ct. Queens 1980]), where the trial court found that a police officer, who issues an appearance ticket, retains the right to search a person even when he has no immediate fear for his safety or belief that the person being searched has a weapon.

While some of the noted cases arose prior to enactment of CPL §140.50(3) in 1985, the public policy remains no less valid. The Court emphatically rejects any claim that law enforcement's right to search for safety reasons suddenly disappears when a violation is involved. As the Hazelwood court found, such an interpretation would be inconsistent with the police's ability to provide safety for investigating officers (see, Id.).

Based upon the forgoing, the Court finds that safety concerns likewise justify stop and frisk here. As long as law enforcement has reasonable suspicion, the stop and frisk meets constitutional requirements. Stop, question and frisk allows police to investigate suspicious persons and pat them down for weapons within the boundaries of constitutional protections while providing for officers' safety (see, United States v. Sokolow, 490 U.S. 1 [1989]).

The officer here was confronted by a defendant who refused to dispurse when requested. Not only was Defendant defiant, but he chose to confront the police at an early morning hour while the [*6]incident remained under investigation. The Court finds Defendant's refusal to disperse when directed, the late hour, the frequency of partying club goers, and Defendant's negative attitude in the face of law enforcement provided reasonable suspicions grounds concerning safety and, thereby, justifying the instant frisk (but see, Brown v. Texas, 443 US 47 [1979]).

Safety Justification

As stated by the Supreme Court in Terry, supra., an officer must always be accorded the right to take protective and precautionary measures as a situation might dictate (see, Terry, supra.) (see generally, People v. King, supra). "Stop, question and frisk" allows law enforcement to question suspicious persons while attending constitutional guidelines for when police pat a suspicious person for weapons (see generally, United States v. Sokolow, supra). Further, the Court finds the frisk was proper here in that Officer Garcia limited himself to patting down Defendant's outer clothing when the box cutter was discovered (see, Minnesota v. Dickerson, 508US 366 [1993]).^[FN12] Contrary to Defendant's assertions, Officer Garcia testified credibly about safety concerns affecting him and his fellow officers.

Stated another way, police may briefly detain a person for investigative purposes, during a Terry (supra.) stop, where the officer has reasonable suspicion, supported by articulable facts, that criminal activity may be afoot, even if the officer otherwise lacks probable cause (see, United States v. Sokolow, supra.). Here, the police officer's testimony, reciting events surrounding the frisk, convinces that the police officer had reasonable suspicion he might be in danger even though the underlying charge was a violation.^[FN13] Finally, the Court gives great weight to the fact that the violation that formed the grounds for the frisk occurred in the officer's presence (see generally, CPL §140.10[1][a]). This was not a baseless unlawful stop.

Concerning the disputed statements that Defendant seeks to suppress, Movant fails to specifically address the issue in the post hearing papers; rather, he apparently urges the Court to rely upon factual and legal discussion about suppression of the box cutter as carrying the same weight for the statements. The Court rejects the suggestion.

Conclusion

Upon this record,^[FN14] the Court finds that the police acted with reasonable suspicion that safety concerns existed; thereby justifying Defendant's frisk during which the box cutter was discovered. The Court finds that Officer Garcia conducted the frisk within constitutional guidelines and that the evidence obtained, pursuant to that search, is admissible.

WHEREFORE, based upon the foregoing, it is

ORDERED that Defendant's motion, seeking suppression of certain physical evidence and statements obtained by police during Defendant's November 27, 2010 arrest, is DENIED. [*7]

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

August 14, 2012

Dominic R. Massaro, JSC