
    The People of the State of New York, Respondent, v John May, Appellant.
    Argued October 16, 1992;
    decided December 16, 1992
    
      APPEARANCES OF COUNSEL
    
      De Nice Powell, New York City, and Philip L. Weinstein for appellant.
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Hector Gonzalez and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the indictment dismissed.

On March 8, 1989, at about 2:30 a.m., defendant and a female companion were seated in a parked Oldsmobile on a deserted street known for criminal activity. Two police officers, patrolling in a marked car, drove up behind them to investigate. As the officers approached, with the patrol car’s red turret lights and spotlight on, defendant started the engine of the Oldsmobile and slowly pulled away. At this point, one of the officers, using the police car’s loudspeaker, ordered the car to pull over. Defendant did so.

The officers approached the Oldsmobile and asked defendant to produce his license, registration or insurance card and as the officers waited for him to do so, they noticed that a towel was draped over the steering wheel column. They called in the car’s license plate number and were advised that the car was stolen. The officers then placed defendant under arrest. A body search revealed three vials of crack cocaine in his pocket, and when the towel was removed from the steering column the officers discovered that the column had been broken and rewired.

Defendant moved the trial court to suppress the crack and the police pictures subsequently taken of the stolen car as the fruits of an illegal stop and seizure. The motion was denied.

We preliminarily note that, despite the fact that defendant was seated in a stolen car, the police stopped him personally and he consequently has standing to challenge the legality of that stop (see, People v Millan, 69 NY2d 514, 520-521). Turning to the merits, we hold that when the police, using red turret lights, a spotlight and a loudspeaker, ordered defendant to pull the car over, defendant was effectively "seized” (see, People v Sobotker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 418; see also, People v Cantor, 36 NY2d 106, 111). Consequently, the stop was proper only if the officers had a reasonable suspicion of criminal activity (see, People v Sobotker, 43 NY2d, at 563, supra; People v De Bour, 40 NY2d 210, 223).

Under the circumstances existing, the police officers here could not have entertained a reasonable suspicion that a crime had been or was about to be committed. They knew only that defendant and another person were sitting in a car parked on a desolate street, a fact which provided them with no information regarding criminal activity. Moreover, defendant’s action in moving the car slowly away as the police approached could not serve to create a reasonable suspicion of criminality given defendant’s right "to be let alone” and to refuse to respond to police inquiry (see, People v Howard, 50 NY2d 583, 590-591, cert denied 449 US 1023 [quoting Olmstead v United States, 277 US 438, 478]). The police could have followed the car, to keep it under observation while they checked on its plates to determine if it was stolen (see, People v Sobotker, 43 NY2d, at 564, supra), but they had no legal basis to stop the car when they did.

Nothing said here should be construed as holding that the police may not make a common-law inquiry of those in a vehicle based upon a founded suspicion and, as suggested by the dissent, the officers here had grounds to do so. The police may not forcibly detain civilians in order to question them, however, without a reasonable suspicion of criminal activity and once defendant indicated, by pulling away from the curb, that he did not wish to speak with the officers, they should not have forced him to stop without legal grounds to do so (see, People v Martinez, 80 NY2d 444 [decided today]). Any other rule would permit police seizures solely if circumstances existed presenting a potential for danger.

Accordingly, the evidence should have been suppressed (see, Wong Sun v United States, 371 US 471, 485; People v Ingle, 36 NY2d, at 418-419, supra).

Bellacosa, J.

(dissenting). I respectfully dissent and vote to affirm the order of the Appellate Division.

People v Martinez (80 NY2d 444), in which I fully concur, applies New York’s common-law governing framework for police-civilian street encounters in a People v Howard (50 NY2d 583, cert denied 449 US 1023) context. Martinez focuses on the third level of People v De Bour (40 NY2d 210), the forcible stop and detention, and makes an important clarification of Howard. The instant case deals with the second level, the common-law right of inquiry in an analogous police-civilian street encounter involving a vehicle.

Here, the police officers pulled up in a police radio car behind a parked car sometime after 2:30 a.m. on a deserted street in Manhattan known for criminal drug activity. They had turned on their turret lights and spotlight. The parked car then started to pull away from the curb, with the officers following for 10 to 20 feet. By loudspeaker, the officers directed defendant to "[p]ull the vehicle over”. The officers approached the car and simply asked defendant for his license, registration and insurance card. The police kept their weapons bolstered. The vehicle was soon determined to have been stolen in Queens a few weeks before.

As the Court stated in De Bour, the common-law right of inquiry is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a police [officer] is entitled 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, at 223 supra). I agree that at the point in time when the police used the loudspeaker to order defendant to pull the car over, they had only a founded suspicion that criminal activity might be afoot and, therefore, only the common-law right of inquiry was activated. I believe, however, that the order "to pull over” and the brief, ordinary inquiry addressed to the motorist was "short of a forcible seizure” under our pertinent precedents for the purposes of the issue to be decided in this case. The conduct of the officers, among the range of options available in the given circumstances, did not violate the "overriding requirement of reasonableness” (see, id., at 218). Moreover, reversal in this case may engender new confusion and squeeze the commonsense meaning out of the common-law right to inquire where the individual to be inquired of happens to be in a vehicle. I would, therefore, affirm the order of the Appellate Division.

To be sure, People v Ingle (36 NY2d 413) and People v Sobotker (43 NY2d 559) establish the rule that where the police stop a car moving freely in traffic on a highway, that stop will constitute a "limited seizure within the meaning of constitutional limitations” (People v Ingle, supra, at 418 [emphasis added]). However, those cases are distinguishable from this situation and do not purport to govern or resolve the precise question presented by this case. In significant contrast to those cases, the officers here lawfully and appropriately approached defendant’s car while it was standing still. When it started to move away, the officers followed for only a few feet. One is left to wonder what the result in this case would be if, instead of the standard "pull over” direction, the officers had politely announced, "Please don’t pull away. We wish only to conduct a common-law inquiry and not effect even a partial seizure” (compare, People v Hollman, 79 NY2d 181, 191).

Given the significant distinguishing features between this case and Sobotker (43 NY2d 559, supra), the Court appears to be embellishing the "limited” Sobotker/Ingle principle. An unlimited, bright line test emerges as the key feature of this case that whenever and in whatever circumstances the police attempt to circumscribe the movement of a vehicle, the police action constitutes a "seizure” for all purposes. The lesser common-law right to inquire consequently decomposes into fossilized lifelessness.

At the very least, this latest twist of the operating principle in this environment thrusts the common-law right to inquire into confusion with respect to police-civilian street encounters involving vehicles. Indeed, the practical implementation compelled by this case is likely to produce results which conflict paradoxically with parallel situations involving foot chases, as in People v Howard (50 NY2d 583, supra), which the Court seeks to regularize today in Martinez (see, 80 NY2d 444, 447-448, supra).

In sum, I agree with the majority at the Appellate Division that the police owed a duty to the public to initiate a common-law inquiry in this case. The officers did nothing unlawful, unreasonable, uncalled for or unconstitutional. The police should have the right to reasonably, peacefully and safely secure a potentially very dangerous situation like this while they do their jobs (see, e.g., People v Torres, 74 NY2d 224, 232, 235-236 [dissenting opn]). The circumstances here were certainly suspicious and the police were attempting to conduct a concededly permissible standard motorist inquiry. An artificial, unrealistic ritual that frustrates their authorized work and forces them instead to allow a vehicle to accelerate and proceed into a potentially more dangerous and volatile high-speed chase or other encounter by possibly joining other vehicular and pedestrian traffic is not within the rule of reason or this Court’s precedents.

Acting Chief Judge Simons and Judges Kaye, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion; Judge Smith taking no part.

Order reversed, etc.  