
    [619 NE2d 396, 601 NYS2d 459]
    The People of the State of New York, Appellant, v David Holmes, Respondent.
    Argued April 29, 1993;
    decided June 15, 1993
    
      APPEARANCES OF COUNSEL
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (David J. Mudd and Mark Dwyer of counsel), for appellant.
    
      Beverly Van Ness, New York City, and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the early afternoon of December 23, 1989, two police officers, Frederick Nelthrope and John Moynihan, were in uniform in a marked patrol car heading north on Amsterdam Avenue between 163rd and 164th Streets in Manhattan. A group of men stood talking near a known narcotics location. Officer Moynihan noticed an unidentified bulge in defendant’s right jacket pocket. As the patrol car approached, the defendant left the group and walked away. Officer Moynihan called to the defendant to come over. As Officer Moynihan exited the police car, defendant ran and the police officers gave chase. As he ran on 163rd Street, defendant threw a plastic bag through a chain link fence and into a courtyard. The police officers caught the defendant. Thereafter, one of them proceeded to the courtyard where he recovered the plastic bag containing crack cocaine.

Defendant’s motion to suppress was denied following a hearing. Subsequently, he pleaded guilty to criminal possession of a controlled substance in the fifth degree. The Appellate Division unanimously reversed, vacated the guilty plea, granted defendant’s motion to suppress, and dismissed the indictment (181 AD2d 27). A Judge of this Court granted leave to appeal (80 NY2d 930).

Police pursuit of an individual "significantly impede[s]” the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed (People v Martinez, 80 NY2d 444, 447). Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit. The circumstance in People v Matienzo (81 NY2d 778) — which does indeed offer "valuable guidance” (see, dissenting mem, at 1060) — was that the defendant was seen exchanging a small plastic bag for money. In People v Martinez (supra), the defendant was observed removing a Hide-a-Key box, known to be used as a drug stash, from steel grate of a store window. In People v Leung (68 NY2d 734) the defendant was observed passing a manila envelope resembling "three dollar bags.” Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information (see, People v Hollman, 79 NY2d 181, 190; People v De Bour, 40 NY2d 210, 218-220), is insufficient to justify pursuit because an individual has a right "to be let alone” and refuse to respond to police inquiry (see, People v May, 81 NY2d 725, 727-728). These precedents establish principles to guide the police in what are often fast-developing encounters.

Applying these precedents, we agree with the Appellate Division that defendant’s motion to suppress should have been granted. While the police may have had an objective credible reason to approach defendant to request information — having observed him in a "known narcotics location” with an unidentified bulge in the pocket of his jacket — those circumstances, taken together with defendant’s flight, could not justify the significantly greater intrusion of police pursuit. Defendant was merely observed in the daytime, talking with a group of men on a New York City street. Given the unfortunate reality of crime in today’s society, many areas of New York City, at one time or another, have probably been described by the police as "high crime neighborhoods” or "narcotics-prone locations.” Moreover, a bulging jacket pocket is hardly indicative of criminality. As we have recognized, a pocket bulge, unlike a waistband bulge, "could be caused by any number of innocuous objects” (People v De Bour, 40 NY2d 210, 221, supra).

If these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone.” That is not, nor should it be, the law.

Finally, the Appellate Division’s determination that defendant’s relinquishment of the bag was in response to the unlawful police pursuit is a mixed question of law and fact supported by the record and thus beyond our review (see, People v Hollman, 79 NY2d, at 193-194, supra).

Bellacosa, J.

(dissenting). Respectfully dissenting, I vote to reverse and reinstate the conviction that rests on defendant’s plea of guilty to possession of drugs.

Police officers, patrolling in a car in the afternoon of December 23, 1989 near a "known narcotics location” in upper Manhattan, observed defendant with several other persons. One officer recognized several of the men as having been previously arrested for drug transactions at the same location. The officers noticed a "large bulge” in the right pocket of defendant’s leather jacket. As the patrol car approached, defendant began to back off from the group and then turned and walked away. The officers stopped the patrol car, and from inside the vehicle one officer called out to defendant, requesting him to come over. Defendant reacted by turning and moving towards the car. As the officer started to get out of the car, defendant turned again and ran in the opposite direction. The officers followed, one on foot and one in the car. The officer on foot, running about 10 feet behind defendant, never lost sight of him in the few minutes that transpired, and saw him throw a plastic bag containing 45 vials of crack cocaine through a chain link fence into a courtyard. Defendant was apprehended and charged with possession of the discarded drugs.

Supreme Court denied defendant’s suppression motion, finding that "the activities of the defendant escalated” such that "[t]he encounter * * * was proper as * * * initiated and the pursuit was justified”. Defendant’s toss of the bag during his departure from the scene was ruled an abandonment. The Appellate Division reversed, ironically concluding that the defendant’s conduct was lawful, but the police activity was unlawful.

Law has a tendency to gravitate towards levels of intellectual sophistication and subtlety, and then sometimes spins out to a realm of unreality in pursuit of a quixotic and illusory "right 'to be let alone’ ” (majority mem, at 1058). Something as elemental as running away from a police officer, after a concededly lawful approach and inquiry, should not be rendered per se legally meaningless, because the law then is propelled beyond reasonable comprehension or acceptance. The new right is then perceived and properly dubbed as a "right to run away”.

My particular frustration in this case stems in part from my total agreement with the Court that flight, together with "other specific circumstances indicating that the suspect may be engaged in criminal activity” (as occurred in this case to the experienced and seasoned eyes of the particular officers), provides a reasonable suspicion of criminality sufficient to justify pursuit (majority mem, at 1058). The other specific circumstances that should be considered with flight occur before, during and after a lawful police-civilian encounter. All the res gestae of the particular circumstance should govern. Yet, in diametric contrast, the Court allows the facts observed by the police and the immediate and continuing reactive conduct of defendant to a lawful approach and inquiry to be automatically thrown out the courthouse door, neutralizing the confluence of circumstances as "equivocal”.

That the Court has lost its analytical compass in this regard is evidenced by its apparent endorsement of the Appellate Division’s extrapolating a per se flight corollary out of the De Bour — Hollman tiers of authorized police activity. Every individual surely has a right to refuse to cooperate with the police on a street inquiry based purely on suspicion or hunch. However, to then leap to the proposition that flight can be given no legal significance whatsoever in an encounter based on an objective and credible reason is a major misdirection in these ever-proliferating cases. While it is supposed to be well established that flight can have some associated legal significance, that is plainly not the way the rules are being applied in fact-finding and reviewing courts (see, e.g., People v Madera, 189 AD2d 462, 468 [Ross, J., dissenting], lv granted 81 NY2d 1022; cf, also, People v Oeller, 191 AD2d 355, 359 [Rubin, J., dissenting], lv granted 81 NY2d 1022; People v Sierra, 190 AD2d 202; and see the cases cited in the respective majority and dissenting opinions of those recent cases at the Appellate Division).

People v Matienzo (81 NY2d 778) offers valuable guidance. Police officers approached defendant based upon an objective credible reason. This Court, in upholding the lawfulness of the police conduct, added that "[i]n the circumstances presented, defendant’s flight furnished reasonable suspicion that he had committed or was about to commit a crime such that pursuit by the officers was justified” (id., at 780). The instant case, endorsing the Appellate Division’s rejection of that sensible parallel under our extensively developed rules, belies and confuses the dynamics surrounding flight from police-civilian Street engagements by employing an analysis which is of an artificial and straitjacketed temporal sequential nature (contrast sharply, People v Martinez, 80 NY2d 444, 448). The courts are instructed to examine silent stills, while the police must act in talking, fast-moving, modern action scenes.

This case — and still others on appeal — illustrates once again many distressing questions as to what the police are supposed to do or even say in performing their jobs in these circumstances. I am unsure whether a police officer may persist in the effort to speak to someone, or may walk along, trot along, or just keep a suddenly fleeing person under "unobtrusive” surveillance in these street sequences. Presumably the rules, as applied, do not relegate the officers to the barefaced choice of meekly turning the other way. The Chaplinesque imagery of drug transactors running one way and the cops the other way dramatizes the majority’s decrying of the "unfortunate reality” that New York City suffers many " 'high crime neighborhoods’ ” and " 'narcotics-prone locations’ ” (majority mem, at 1058). What the Court fails to recognize is that rulings like this contribute to the environment and culture that spreads that "reality”. The bottom line is that this is a case about experienced police officers acting in a particular, known locale with respect to an all-too-typical narcotics transaction circumstance with known actors.

Judges at every court level are encountering obvious difficulty in deciding, with the benefit of reflection, what is lawful versus unlawful or relevant versus irrelevant or equivocal versus indicative of criminality. It is thus beyond my comprehension how anyone can reasonably expect the recent cascade of precedents from all courts, including this one, to guide the police in their instantaneous on-the-street decisions and actions relating to flight and pursuit.

Under the circumstances and pertinent rules, this Court should reverse, reinstate the guilty plea and remit this case to the Appellate Division to apply the correct dynamic criteria to decide this case. The per se flight blinder that continues to be interposed here and in countless other cases and street encounters is disconcerting.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Smith concur; Judge Bellacosa dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.  