People v. Bordeaux

Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: Even if the police had an " 'objective credible reason’ ” to approach the defendant, "the pointed questioning regarding the ownership of the bag * * * was improper because it was not based on a founded suspicion of criminal activity” (Matter of Antoine W., 79 NY2d 888, 889-890; see also, People v Saunders, 79 NY2d 181; People v De Bour, 40 NY2d 210, 215, 223).

The police officers’ interest in defendant and her companion was initially sparked by information from an unidentified informant regarding the conduct of two Black women at Syracuse Airport. Initially, the women were seen standing in *1096separate parts of the baggage claim area. One woman then went outside to engage a taxi while the other remained in the terminal. After the second woman retrieved a black suitcase, she met her companion outside and the two took a cab to a motel. The motel desk clerk and manager reported to the police that the women, later identified as defendant and Diane Sweeney, were dressed in "flashy” miniskirts and had checked in at an unusually early hour. After defendant and Sweeney checked out of the motel, the police followed them to the bus station.

The police officers approached defendant and Sweeney at the bus station and requested information concerning their identity and destination. Both women promptly produced valid New York State driver’s licenses which corresponded to the names in the motel registration. Based on information provided by the motel clerk, the police had already run a records check which revealed that defendant had no criminal record and no outstanding warrants. Defendant and Sweeney also gave the officers an account of their travel itinerary, and defendant produced an airline ticket bearing the name "Smith”. After defendant explained that someone else had purchased her ticket, the officer sought no further explanation regarding the name on the ticket.

At this point there was no predicate for a common-law inquiry of defendant concerning the ownership of the black bag (see, People v Saunders, supra; People v Irizarry, 168 AD2d 377, affd 79 NY2d 890; Matter of Antoine W., supra). Unlike the suspects in People v Hollman (79 NY2d 181), defendant and Sweeney did nothing unusual with the suitcase. Rather, like the typical traveler at any bus station, the women checked the suitcase with a baggage handler. Their actions at the bus station, like their conduct at the airport, were entirely innocent and consistent with situations confronted by anyone familiar with bus stations and airports (see, People v Irizarry, supra, at 379; Matter of Antoine W., 162 AD2d 121, 122, affd 79 NY2d 888, supra). Nothing in defendant’s conduct created a "founded suspicion that criminal activity is afoot” (People v De Bour, supra, at 223; People v Hollman, supra), which would activate the officers’ common-law right to inquire about the ownership of the bag. All evidence seized as the result of this improper police inquiry must be suppressed (see, People v Saunders, supra).

Further, the improper police intrusion did not end with the unjustified common-law inquiry of defendant. After defendant and Sweeney denied knowledge or ownership of the black bag,

*1097the police seized the bag from the luggage compartment and told the bus driver to leave without the two women, which amounted to a forcible seizure and detention of defendant and Sweeney. The forcible seizure and detention of defendant was authorized only if the police had a reasonable suspicion that she was involved in a crime (People v Hollman, supra; People v De Bour, supra, at 223), but the police officer conceded that there was no reason to detain defendant and Sweeney prior to the removal of the suitcase from the bus. At that point, the arresting officers testified only that they suspected "that there was something wrong” and that the suspects were lying about the suitcase. By their own testimony, neither officer had an articulable reason to seize defendant and Sweeney forcibly at the time they told the bus driver to leave without the two women (see, People v Be Bour, supra, at 217). The fact that cocaine was ultimately found cannot validate the seizure of defendant and the search of the suitcase. "The police may not justify a stop by a subsequently acquired suspicion resulting from the stop” (People v De Bour, supra, at 215-216; see also, People v Scott B., 34 NY2d 483, 490).

Because the evidence was obtained as the result of improper police conduct, we need not consider whether defendant abandoned the black bag. All of defendant’s statements that would support a finding of abandonment were in response to questions the police were not entitled to ask. If we were to reach the question of abandonment, therefore, we would find that defendant’s conduct was a "provoked and spontaneous response” to illegal police actions (People v Torres, 115 AD2d 93, 99; see, People v Howard, 50 NY2d 583; People v Boodle, 47 NY2d 398).

We have reviewed the other issues raised by defendant on appeal and find them to be without merit.

All concur, except Denman, P. J., and Balio, J., who dissent and vote to affirm in the following Memorandum.