OPINION OF THE COURT
In this case we are once again called upon to determine the appropriateness of particular police conduct in light of the constitutional right which every individual has to be secure against unreasonable searches and seizures on our public streets and elsewhere.
The facts are relatively simple and not in dispute. At approximately 10:00 p.m. on the evening of November 4, 1985, Police Officers Joseph Thomas and Jerome Canzaneri were on duty, seated in a marked patrol car in the vicinity of 116th Street and Lenox Avenue, on the lookout for traffic violators. From a distance of about three quarters of a block away, the officers observed the defendant Howard who was standing on the northeast corner of 116th Street and Lenox Avenue, near the subway entrance located there. During the next 2 or 3 minutes, the police officers watched Howard as he looked up and down Lenox Avenue and 116th Street, up and down the subway stairs watching people come out of the station, and thereafter returning to a position near the wall at the corner. Two or three times during this period, he placed his right hand inside the left side of his jacket “as though he were adjusting something”.
Based on nothing beyond these observations, and the fact that this was a location of frequent robberies, the police officers decided to approach the defendant. As the patrol car drove towards him, the defendant walked away, whereupon the police officers shouted “Halt. Police” and told him they wanted to ask him a few questions. Defendant stopped, turned to face them, raised his arms, and stated words to the effect that he hadn’t done anything. The officers then walked toward him. Both officers testified that the defendant was holding his left arm in a rigid position against his left side, and that as they approached they noticed a bulge of approximately 3 to 5 inches in his left front jacket pocket. While the officers’ testimony indicated that the bulge had no distinct shape or
As the dissent properly notes, the common-law right to inquire is activated by a founded suspicion that criminal activity is afoot and permits a police officer to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (People v De Bour, 40 NY2d 210). The dissent concludes that here "the police observed the defendant for several minutes and reasonably found that his conduct was suspicious” and therefore had a right to approach him and inquire.
At the outset, we cannot agree that the circumstances observed by the officers rose to the level of reasonable suspicion. "Reasonable suspicion” has been defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. (People v Sobotker, 43 NY2d 559; People v Cantor, 36 NY2d 106.) "The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere 'hunch’ or 'gut reaction’ will not do”. (People v Sobotker, supra, at 564.) Nor will innocuous behavior alone generate a founded or reasonable suspicion that a crime is at hand. (People v De Bour, supra, at 216.)
Here, defendant’s behavior during the short time he was being observed was innocuous or, at best, equivocal. He was standing near a subway entrance, at 10:00 p.m., looking down the subway stairs and up and down the streets, and then moving to stand near the wall at the corner. He was neither causing any disturbance, nor making any furtive or threatening gestures which might indicate that criminal activity was afoot. On the contrary, his conduct was consistent with the actions of a man waiting for his wife or a friend to exit the subway, as counsel argued before the hearing court, and who was seeking to secure his own safety at that time of night. The only other fact observed by the police was defendant twice reaching inside his jacket pocket as though he were adjusting something. This innocuous movement was readily susceptible of an innocent interpretation. It was an action reflective of adjusting one’s clothing or suspenders or the nervous touching of one’s pocket wallet. We find that this conduct, either alone or in conjunction with defendant’s
While these officers undoubtedly had, as the trial court found, "some objective credible reasons for requesting information even absent evidence of criminality”, this merely provided them with a basis for the first level "minimal intrusion of approaching to request information” (People v De Bour, supra, at 223). The fact that defendant walked away when he saw the patrol car approach, did not provide a basis for any greater level of intrusion. (People v Howard, 50 NY2d 583.)
The conduct of the police officers in this situation can, by no reasonable standard, be held to have been justified in its inception or reasonably related in scope to the circumstances which rendered its initiation permissible. (People v De Bour, supra, at 215.) Having observed defendant for a brief period engage in innocuous, or at most equivocal, behavior which provided them with an objective credible reason to approach and request information, these officers made no such attempt but, instead, immediately and peremptorily stopped and detained defendant by virtue of the authority of "the badge”. "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment * * *. This is true whether a person submits to the authority of the badge or whether he succumbs to force”. (People v Cantor, 36 NY2d 106, 111.)
The actions of the police officers in issuing an authoritative directive to defendant to "Halt”, with which he immediately complied, followed by the officers approaching, and without any preliminary inquiry, taking defendant’s arm and subjecting him to a frisk, constituted nothing less than a forcible seizure. (See, People v Silvestre, 119 AD2d 601.) This police conduct would have been inappropriately intrusive even if defendant’s actions prior to their encounter could be said to have provided a founded suspicion that criminal activity was afoot thereby activating the second level of permissible police intrusion, the common-law right of inquiry. (See, People v Cornelius, 113 AD2d 666; People v Marine, 142 AD2d 368; People v Roberts, 94 AD2d 237; People v Silvestre, supra.)
This court has frequently held that the mere observation of an undefinable bulge in a person’s pocket is insufficient as a basis for a frisk or search for a revolver. (See, People v Wiley, 110 AD2d 590; People v Cornelius, supra; People v Williams, 79 AD2d 147.) Unlike a waistband bulge which is a telltale of a weapon, a pocket bulge could be caused by any number of innocuous objects. (People v De Bour, supra, at 221.) In People v Cornelius (supra) where the court also found the forcible detention of defendant to be improper, it was aptly noted that ”[w]hatever 'fear for their safety’ the police may have felt as an immediate predicate for their subsequent search for a gun (see, CPL 140.50 [3]) was solely a result of an unwarranted intrusion in the first place” (at 669).
Moreover, in order to justify a frisk under the statute, the alleged apprehension or fear felt by an officer must be reasonable under the circumstances. (See, People v Santiago, 64 AD2d 355, 361.) In this situation there were no objective factors that could reasonably be said to warrant such apprehension when the officers detained and approached the defendant. There was no describable outline of a gun or any other reason to believe that defendant was armed or dangerous. On the contrary, defendant did not engage in any furtive movements, he immediately stopped when ordered, raised his arms and, complying with the officers, request, walked towards them without reaching inside his jacket. Significantly, the officers acknowledged that they did not have their guns drawn when they approached defendant. The unsupported conclusory statements by the officers at the hearing that they were afraid
Finally, we address the officers’ assertion that their suspicions of defendant were aroused and that their hunch was justified by the "robbery prone” nature of the location. While the nature and location of the area where a suspect is located may be one of the factors to be considered in determining whether the police acted reasonably (see, People v Bronston, 68 NY2d 880, 881), that factor alone cannot serve as the justification for untoward or excessive police behavior against those of our citizens who happen to live, work or travel in what are characterized as "high crime areas”. That factor must " 'exist in combination with objective factors specific to the incident which together support a founded suspicion that some particular criminal activity may be afoot’ ”. (See, People v Marine, supra, at 372, citing People v Boulware, 130 AD2d 370, and People v Cornelius, supra.) Here, there was absolutely no objective indication that criminal activity was afoot or that defendant was engaged in criminal activity. A citizen is certainly entitled to stand and look about for 2 or 3 minutes on a street corner, in any neighborhood, and be free from arbitrary police encounters.
While we are sensitive to the need for, and recognize the difficulties attendant upon, vigilant law enforcement efforts in a society whose citizens are all too often the victims of crime and are understandably beset with fears regarding criminal activity, we also recognize our obligation to be ever vigilant to insure that such considerations do not overwhelm the constitutional bulwarks which have historically insured one’s right to be secure against unreasonable and unjustifiable governmental intrusions upon one’s privacy and security. The police response to defendant’s activities in this case constituted precisely such an unwarranted and unjustifiable intrusion.
Accordingly, the motion to suppress the gun should be granted and the indictment dismissed.
The judgment of the Supreme Court, New York County (Rose Rubin, J., at hearing, plea, and sentence) rendered February 13, 1986, which convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree and sentenced him to a prison term of 2 to 4 years, should be reversed on the law, the defendant’s motion to suppress the evidence granted, and the indictment dismissed.