Defendant moves for an Order of this Court 1.) suppressing physical evidence seized from the Defendant’s person on July 14, 2017, and; 2.) For an Order dismissing the charges against the Defendant based upon the suppression of such evidence and the lack of probable cause. After a Dunaway/Mapp hearing held on May 31, 2018, this Court makes the following Findings of Facts and Conclusions of Law:Findings of Fact:On July 14, 2017, police were dispatched to a Stewart’s location in Gloversville after receiving a report of a possible overdose. Upon arrival, Officer Chad Buddles observed a male, later identified as Kevin Mullins, laying face down, near a cooler, inside the store. Mullins was transported to, and treated at a local hospital, where, once alert, reported to police that earlier that day, he had purchased heroin from two individuals at the Elk Street Park. Mullins described one of individuals as a black male, with facial hair, wearing a gray, flat-rimmed Yankee’s baseball cap and red and white Air Jordan sneakers. Shortly after this interview, Officer Buddles began a canvass of the city in search of the individuals described by Mullins.Within a few minutes of beginning his patrol, Buddles observed the Defendant, a black male, with facial hair, walking in the vicinity of Elk Street Park, and wearing both a gray baseball cap, and red and white Air Jordan sneakers. Determined to speak with the suspect, Officer Buddles exited his patrol car, approached the Defendant, and explained that he was investigating suspected drug activity in the park.The Defendant, clearly not inclined to cooperate with police, refused the Officer’s request for identification, asserting that it was improper for police to stop him, and continued on his forward path. Officer Buddles advised the Defendant that he was not free to leave, and attempted to restrain him. A brief physical struggle ensued, during which time the Defendant pulled away from the officer, while reaching for the waistband of his pants. Once free from the officer’s grasp, the Defendant turned and fled the scene. Officer Buddles gave chase, eventually overtaking the Defendant, restraining him on the ground, and placing him in handcuffs.Additional officers arrived on the scene, including Officer Hulsander, who, along with Sgt. Reppenhagen, escorted the Defendant to a patrol car. Prior to placing him inside the vehicle, both officers conducted a search of the Defendant’s person, and discovered, inside his right front pocket, a small quantity of marijuana, along with a closed yellow pouch. The pouch was later searched, revealing several plastic bags containing a substance later identified as cocaine. The Defendant was thereafter arrested and charged with three (3) counts of PL §220.16-1, Criminal Possession of a Controlled Substance, a class D felony.Conclusions of LawThe Four Levels of DeBourIn 1976, the New York State Court of Appeals, in People.v. DeBour, 40 NY2d 210, adopted a four-tiered method for evaluating the propriety of police initiated street encounters with private citizens.Level I permits police to request basic information from an individual if that request is supported by an “objective, credible reason, not necessarily indicative of criminal activity.” Level II, commonly referred to as the common law right of inquiry permits a somewhat greater intrusion, and requires a founded suspicion of criminal activity. A level III inquiry, known as a Terry stop is activated when police possess a reasonable suspicion that a person was involved in a felony or a misdemeanor. Finally, Level IV authorizes an arrest when police have probable cause to believe that a person has committed a crime. See People v. DeBour 40 NY2d 210 at 223 [1974]; People v. Cantor, 36 NY2d 106, at 111 [1975]; People v. Hollman, 79NY2d 181 [1992].In the case at bar, the hearing record reveals that Officer Buddles possessed a first-hand account of illegal drug activity, collected from an identified eye-witness, who’s credibility Buddles had an opportunity to assess. The witness provided a detailed description of the perpetrator, which included the individual’s gender, race, skin color, and an identifiable facial feature. The witness also described two separate articles of clothing, worn by the suspect, including a gray baseball cap, and prominent red and white Air Jordan sneakers. The Defendant, meeting this description, was located by police, in close proximity to the Elk Street Park, and at a time of day not remote from the time of the alleged occurrence.These facts, while short of establishing probable cause to make an arrest, authorized police in approaching the Defendant in a manner consistent with a Level III investigatory detention.Level III-The Investigatory DetentionDefendant’s refusal to identify himselfCPL §140.50 states that “…a police officer may stop a person in a public place….when he reasonably suspects that such person has committed…a felony or a misdemeanor…and may demand of him his name, address, and an explanation of his conduct.” While the CPL specifically authorizes police to stop and question a suspect, the law does not impose a reciprocal duty upon that individual to answer. The right to remain silent, under questioning, is one of the most fundamental rights bestowed upon our citizens, and it is well-settled that while police have the right to ask questions, they may not compel an individual to answer. To that extent, the mere refusal to identify oneself to police, or respond to questioning, is not a criminal act, nor does it establish probable cause to make an arrest. See Davis v. Mississippi 394 US 721; Terry v. Ohio, 392 US 1, 88 S. Ct. 1868; People v. Ferreria, 10 Misc. 441 [2005].Obstructing Governmental Administration 2ndDefendant’s Flight From Police DetentionWhile the Defendant maintained the right to remain silent, his refusal to supply his identity imposed a duty upon police to ascertain it. That duty necessitated his non-arrest detention, and subsequent transport to police headquarters.The prosecution advances the argument that the Defendant’s flight from police detention established probable cause for an arrest under PL §195.05, Obstructing Governmental Administration Second.Penal Law §195.05 states, in relevant part, that a person is guilty of obstructing governmental administration when he “intentionally prevents or attempts to prevent a public servant…from performing an official function…by means of physical force or interference.”In People v. Greco, 15 Misc 2d 859 [1992] an Obstructing conviction was upheld against a Defendant who prematurely left the scene of a motor vehicle stop, preventing an officer from issuing a traffic citation for speeding. In US v. Marques, 979 F.Supp2d 326 [US Dist. Court, E.D. New York 2013] the Court found that the Defendant’s presence in a public park after closing hours authorized his removal, but not his arrest, and his flight from a park officer was sufficient to find that he interfered with a governmental employee engaged in the performance of an official duty. In Matter of Davan, 91 NY2d 88, the Court found sufficient support for a charge of Obstructing after the Defendant, warned not to interfere, drove his bicycle towards an undercover ‘buy operation’ and verbally warned the suspects. In People v. Romeo, 9 AD3d 744 [3rd Dept. 2004] and In Re Joshua C., 289 AD2d 1095 [4th Dept. 2001] both Courts held that inappropriate or disruptive conduct at the scene of the performance of an official function falls within the ambit of Obstructing Governmental Administration. In People v. Dumay, 23 NY3d 518, the Court found that an allegation that Defendant prevented a police officer from patrolling a neighborhood by standing behind his patrol vehicle was sufficient to support a charge of Obstruction. In People v. Lepard, 83 AD3d 1214 [3rd Dept. 2011] the Court upheld a conviction for Resisting Arrest after finding probable cause for Obstruction based upon evidence that the Defendant caused an unnecessary delay in the issuance of a traffic citation to another motorist by approaching the scene, while shouting and screaming at the officer. In People v. Baltes, 75 AD3d 656 [3rd Dept. 2010] the Court upheld a conviction for Obstruction after finding evidence that the Defendant remained uncooperative, belligerent, and refused a direct request by police that he remain quiet or leave the scene of motor vehicle stop of another individual.While the defense may argue that various courts have refused to extend criminal liability to an individual who refuses to cooperate with police, this case presents a clear factual distinction because unlike those holdings, the Defendant was a suspect in a crime, and police detention was not only authorized, it was essential.1 Defendant’s refusal to supply his identity prompted his non-arrest detention, and after being advised that he was not free to leave, the Defendant persisted in his uncooperative behavior by physically pulling away from the officer, and then fleeing the scene. Defendant’s flight from police detention prompted a pursuit and physical restraint, without which, the Defendant would have likely escaped. These actions by Defendant were intended to prevent police from ascertaining his identity and impeding their officer’s criminal investigation.If the law authorizes police to act, a physical resistance intended to thwart that authority must have consequences. To say otherwise would defeat the purpose of the law which permits the authority in the first place.Based upon these facts, this Court finds reasonable cause to believe that the Defendant intentionally prevented, or attempted to prevent, a public servant from performing an official function, by means of physical force or interference, which established probable cause to arrest the Defendant for the crime of Obstructing Governmental Administration 2nd.The SearchA finding of probable cause does not conclude the inquiry. This Court must still determine the lawfulness of the search.Under both the Federal and New York State constitutions, all persons are protected from “unreasonable searches and seizures.” U.S. Const. Amend. IV; NY Const. Art. I §12. CPL arts 120, 140, 700. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well delineated exceptions. See Katz v. United States, 389 US 347 [1967].The Frisk-for-Weapons-SearchIn the case at bar, the following testimony is relevant:Q: Did there come a point in time when you transported Mr. Darby to the station?A: Yes there was.Q: And did you also participate in the search of Mr. Darby?A: Yes.Q: How did that occur?A: Prior to placing him in a patrol car, myself and [another officer] did a pat down search for any weapons. At that time, [that officer] found a green leafy substance in his right front pocket and he also handed me a yellow pouch.Q: And did you search that yellow pouch?A: I searched it upon return to the station.Q: Officer, would agree that none of these items found on Mr. Darby, resembled a weapon?A: No, they did not.Q: And were they close to resembling a weapon?A: No, they were not.Q: And he was not placed under arrest for anything other than items that he possessed at the time of the search, is that correct?A: I believe that the officer was trying to identify who he was and that was the reason for transporting him back to the station.Q: He was being transported back to the station just for identification purposes?A: Mmmm-hm. (affirmative response)Q: So, he wasn’t under arrest for anything at that time?A: Not at that point, no, I don’t believe he was.A: And he was not charged with anything except the drugs, correct?A: Correct.This testimony is incongruous. A “pat search” is a frisk-for-weapons-search, and is authorized only when police reasonably suspect that a person may be armed and dangerous. This type of protective frisk is strictly limited to a running of the hands over the outside of an individual’s clothing in search of weapons or dangerous instruments, and does not include reaching into an individual’s pockets to search for evidence, contraband, or seize the proceeds or instrumentalities of a crime.While there is credible testimony that during his struggle with police, Defendant reached for the waistband of his pants, there is no evidence that what police felt concealed in Defendant’s front pocket was indicative of a weapon. While a pat search of the Defendant was authorized, the extent of that search exceeded its permissible scope, and the intrusion into the Defendant’s pockets, without a reasonable belief that a weapon was being concealed, was impermissible.Search Incident to ArrestUndisputably, once police make a lawful arrest, they may search a defendant incident to that arrest. See People v. Valentine, 220 AD2d 708, 632 N.Y.S.2d 663 (2d Dep’t 1995); People v. Mena-Coss, 210 AD2d 745, 620 N.Y.S.2d 547 (3d Dep’t 1994). Such a search, however, does not automatically authorize the warrantless search of closed pouches, or containers, without exigent circumstances.Under New York Law, a warrantless search on exigent circumstances must be based upon a reasonable belief that a dangerous instrument is being concealed, or there is a legitimate concern for preserving evidence. See People v. Diaz, 107 AD3d 401[1st Dept. 2013.] Even in cases where a container is suspected of concealing a weapon, New York Courts hold that if the container is so securely fastened that the person arrested cannot quickly reach its contents, or if the container has been reduced to the exclusive custody and control of police, exigent circumstances do not exist, and a search of the container can not be made without a warrant. See People v. De Santis, 46 NY2d, at p. 89, 412 N.Y.S.2d 838, 385 N.E.2d 577), See also People v. Marsh, 20 NY2d, at p. 102, 281 N.Y.S.2d 789, 228 N.E.2d 783; see People v. Caldwell, 53 NY2d 933, 440 N.Y.S.2d 927, 423 N.E.2d 404. See Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998); People v. Gokey, 60 NY2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 (1983); People v. Belton, 55 NY2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982); People v. Wylie, 244 AD2d 247, 666 N.Y.S.2d 1 (1st Dep’t 1997).In the case at bar, police had already dispossessed the Defendant of the contents of his pockets, including the closed yellow pouch. While this item was sequestered away, the Defendant was transported to the station, and upon arrival, the yellow pouch police was searched. The hearing testimony reveals that police denied suspecting that the yellow pouch contained a weapon, and throughout Defendant’s detention, the pouch remained outside the Defendant’s reach or grasp, and under the exclusive custody and control of the police. See People v. Diaz, 81 NY2d 106, [1983] and Matter of Marrhonda G., 81 Y2d 942 [1993]; See People v. Gokey, 60 NY2d 309 [1983]; See also People v. Hernandez, 40 AD3d 777, [2d Dept, 2007].While it could be argued that the contents of the yellow pouch contained incriminating evidence that could be lost or destroyed, there is no evidence to support a reasonable belief that the yellow pouch contained incriminating evidence of the crime under which police had probable cause to make an arrest-namely Obstructing Governmental Administration.The issue in this case is that, if not for the search, there would have been no arrest. Even though police had probable cause to make an arrest for Obstruction, the Defendant was never charged with that crime. The only arrest of Defendant came after police discovered the contents of the yellow pouch.This Court is not persuaded by the prosecution’s argument, for which they offer no authority, that the neglect to formally charge the Defendant with Obstruction does not invalidate the legitimacy of the search. A search made incident to a lawful arrest, must be incident to an actual arrest-not just probable cause. See People v. Evans, 43 NY2d 160, 165, 400 N.Y.S.2d 810, 371 N.E.2d 528 [1977]; People v. Erwin, 42 NY2d 1064, 1065, 399 N.Y.S.2d 637, 369 N.E.2d 1170 [1977] ). See People v. Reid, 24 NY3d 615, [2014]; See also People v. DeSantis, 46 NY2d 82.; People v. Driscoll, 101 AD3d 1466 [3rd Dept. 2012]. See also People v. Kalikow, 90 AD3d 1558 [4th Dept 2011].The United States Constitution imposes both spatial and temporal limitations on warrantless searches, and the search of a person incident to a lawful arrest requires the search to be conducted in a manner “not significantly divorced in time or place” from the actual arrest. Arguing that a warrantless search, made without an actual arrest, can establish probable cause for a separate arrest, is nothing but a bootstrap, and will not be condoned by this Court.Based upon the foregoing, this Court finds that the search of the Defendant was unlawful, and the fruits of that unlawful search must be suppressed. The illegally seized items having provided probable cause for Defendant’s arrest under CPL §220-16.1, this Court is constrained to rule that the charges against the Defendant must be dismissed.The Defendant’s motion to suppress physical evidence seized from the Defendant’s person is hereby GRANTED, and the Defendant’s motion to dismiss the charges based upon a lack of probable cause is hereby GRANTED.The foregoing constitutes the Decision and Order of this Court.Dated: August 6, 2018Gloversville, New York
