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Where a person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot.
The case consolidated two criminal cases, People v. Hollman and People v. Saunders. As the former is irrelevant to the pertinent rule and issue, its fact pattern has been omitted. In sum, Hollman’s conviction was upheld as the line of questioning and subsequent search were proper.]
On February 1, 1989, Officer Canale, this time accompanied by two other officers, was stationed near Platform 68 at the Port Authority Bus Terminal. Buses departing from this platform head for Baltimore, Washington and Virginia. Canale observed the people standing in line for the 5:00 P.M. bus. The bus began boarding at approximately quarter to five. Saunders joined the line at about five minutes to five, carrying a zippered gym bag. According to Canale, in contrast to the other passengers, who were casual in demeanor, Saunders appeared nervous, scanning the interior of the boarding area and at one time giving his place in line to another passenger. Canale observed the defendant for approximately five minutes. When Saunders approached the bus, he caught Canale's eye, hesitated slightly, and entered the boarding area. Canale approached Saunders, with the other two officers standing two to three feet behind him. He identified himself as a narcotics officer, and asked Saunders if he could speak to him. After a few questions, Canale asked Saunders if he could search his bag. Saunders said yes. The officer repeated the question and Saunders again said yes. According to Canale, Saunders looked around rapidly during this conversation, speaking rapidly and in a broken voice. The officer opened the bag and inside a sneaker found a brown paper bag that contained a plastic bag of cocaine powder and another plastic bag containing 38 vials of cocaine.
Saunders was charged with criminal possession of a controlled substance in the second degree and criminally using drug paraphernalia in the second degree. Saunders moved to suppress the drugs on the ground that the search and seizure had been unlawful. A suppression hearing was held on June 12, 1989, and his motion was denied. The court found that Canale's approach and questioning constituted a request for information and was permissible. The court further found that Saunders had consented to the search of his gym bag. After his suppression motion was denied, Saunders pleaded guilty to criminal possession of a controlled substance in the third degree. He appealed to the Appellate Division, which affirmed his conviction, with one Justice dissenting.
Did the police act properly in their encounter with Saunders?
In Saunders’ case, the defendant caught Officer Canale's attention because, according to Canale, he appeared nervous and repeatedly scanned the terminal. Canale testified at the suppression hearing that as Saunders’ attention was drawn into the boarding area, and when he and Canale made eye contact, he noticed Saunders hesitate. To approach an individual for information, a police officer need only have an objective, articulable reason, as we have noted above. Here, Saunders' behavior provided Canale with an objective reason for the approach. Similarly, the officer acted properly when he asked Saunders his destination. Again, this is the sort of question the court have held in the past constitutes a request for information. Canale crossed the line, however, when he asked to search the defendant's bag. Saunders’ behavior, while it may have provided the officer with adequate basis for an approach and for a few general, non-accusatory questions, was certainly not so suspicious as to warrant the further intrusion of a request to rummage through his luggage. Because Saunders’ consent was a product of the improper police inquiry, the Appellate Division was in error when it found that Saunders had in fact consented to the search of his bag