Restriction Of Court of Appeals' Jurisdiction In Pedestrian Stop Cases

This article originally appeared in The New York Law Journal and is republished here with permission from law.com.

In People v. Holland,1 a divided Court of Appeals (5-2) declined the opportunity to articulate the law governing hundreds of thousands of pedestrian stops performed annually by the New York City Police Department, "only a very small percentage of which actually result in the discovery of evidence of crime."2 Instead, the Court dismissed a defendant's appeal from an Appellate Division order reversing a Supreme Court order that had granted a motion to suppress drugs found on defendant's person. The Supreme Court found defendant had been unlawfully detained and that the police illegality was not attenuated by defendant's scuffle with the police as he tried "to go," which led to his arrest for assault and disorderly conduct and search.

The Court of Appeals dismissed the defendant's appeal, finding that the Appellate Division's order, "while termed 'on the law,' was actually predicated upon a differing view concerning the issue of attenuation, which is a mixed question of law and fact" and, therefore, does not meet the requisites of CPL 450.90(2)(a)3 that the reversal be "upon the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal."4

A Stop and a Scuffle

The evidence adduced at the hearing upon the suppression motion, as summarized by Chief Judge Jonathan Lippman in his dissent,5 showed that upon observing defendant walking in the early morning in an area near a public housing project known for its high incidence of crime, Police Officer David Porras asked defendant to stop. Officer Porras asked whether defendant lived in the project, and defendant said he did not. The officer then asked for photo identification, which defendant provided. Officer Porras examined the identification and found it satisfactory; he acknowledged that his inquiry had at that point run its course. Nonetheless, he did not return defendant's photo identification and allow him to go on his way. Rather, he retained the identification and stood by without interceding as one of his partners approached and repeated the inquiries he, Porras, had just completed.

Defendant reportedly became agitated and, at the approach of yet a third police officer who, with his two partners, blocked his egress, either pushed (as recorded in the entries in the officers' memo books6) or punched Officer Porras in what the officers understood as an attempt "to go." A scuffle ensued in the aftermath of which defendant was arrested for assault and disorderly conduct, and then searched. Drugs were found on his person.

The Supreme Court found defendant had been illegally detained and that the illegality had not been attenuated by his attempt to get past the police officers "blocking [his] egress." The court observed, "[e]ven if there was a basis for initially requesting information from defendant . . . any such justification was exhausted after he answered Porr[a]s who was obligated to return the identification and allow him to leave. The continued detention was unlawful and the reaction of defendant proportionate to the circumstances. It does not attenuate...