People v. Febus, 11 A.D.3d 554 (N.Y. App. Div. 2004). · Go Syfert
Search
People v. Febus, 11 A.D.3d 554 (N.Y. App. Div. 2004). Cases Citing This Book View Copy Cite
23 citation events (23 in the last 25 years) across 2 distinct courts.
Strongest positive: In re Jaquan M. (nyappdiv, 2012-07-03)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) In re Jaquan M.
N.Y. App. Div. · 2012 · confidence medium
People v Febus, 11 AD3d 554, 556 [2d Dept 2004], lv dismissed 4 NY3d 743 [2004] [because the officer had reasonable suspicion to stop the defendant, the defendant’s lie that he had “nothing” in his pocket raised the level of the encounter to probable cause]; People v Scott-Heron, 11 AD3d 364 [1st Dept 2004], lv denied 4 NY3d 803 [2005] [“defendant’s patently false responses to the detective’s initial questions clearly raised the level of suspicion to probable cause”].) In any event, I disagree with the majority that the invitation to search limited the search to the main compartm…
discussed Cited as authority (rule) In re Jaquan M.
N.Y. App. Div. · 2012 · confidence medium
People v Febus, 11 AD3d 554, 556 [2d Dept 2004], lv dismissed 4 NY3d 743 [2004] [because the officer had reasonable suspicion to stop the defendant, the defendant’s lie that he had “nothing” in his pocket raised the level of the encounter to probable cause]; People v Scott-Heron, 11 AD3d 364 [1st Dept 2004], lv denied 4 NY3d 803 [2005] [“defendant’s patently false responses to the detective’s initial questions clearly raised the level of suspicion to probable cause”].) In any event, I disagree with the majority that the invitation to search limited the search to the main compartm…
discussed Cited as authority (rule) People v. McClendon
N.Y. App. Div. · 2012 · signal: cf. · confidence medium
Finally, inasmuch as the defendant sought suppression of his statements solely on the ground that they were the “fruit of the poisonous tree” (Wong Sun v United States, 371 US 471, 488 [1963] [internal quotation marks omitted]), that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials also was properly denied (see People v Day, 8 AD3d 495, 496 [2004]; cf. People v Febus, 11 AD3d 554, 556 [2004]; People v Fleury, 8 AD3d 585, 587 [2004]).
discussed Cited as authority (rule) In re Demitrus B.
N.Y. App. Div. · 2011 · confidence medium
Based on the totality of the circumstances, including the officers’ observations and their training and experience regarding the common methods of drug packaging, the officers had probable cause to search respondent, resulting in the seizure of the bags of crack cocaine and money that were in his possession (see People v Alvarez, 100 NY2d 549, 550 [2003]; People v Febus, 11 AD3d 554, 556 [2004], lv dismissed 4 NY3d 743 [2004]).
discussed Cited as authority (rule) People v. Preston
N.Y. App. Div. · 2011 · confidence medium
Notwithstanding the defendant’s contention that the officers chased him even though they lacked a “reasonable suspicion that [he] was involved in a felony or misdemeanor” (People v Moore, 6 NY3d 496, 499 [2006]), the testimony adduced at the suppression hearing reflects that the officers’ pursuit of the defendant after he dropped what appeared to be a drug packet and fled their presence immediately thereafter was justified (see People v Febus, 11 AD3d 554, 556 [2004]; Matter of Steven McC., 304 AD2d 68, 73 [2003]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2010 · confidence medium
I note that, in any event, the police knew that defendant was lying when he stated that he was en route to Binghamton but needed to return home to obtain money, and thus his “response raised the level of the encounter [from reasonable suspicion] to probable cause to believe that the defendant [had committed a burglary], justifying the search and arrest” of defendant (People v Febus, 11 AD3d 554, 556 [2004], lv dismissed 4 NY3d 743 [2004]; see People v Abad, 279 AD2d 358 [2001], lv denied 96 NY2d 796 [2001]; People v Babarcich, 166 AD2d 655 [1990], lv denied 76 NY2d 1019 [1990]).
discussed Cited as authority (rule) United States v. Bellamy
E.D.N.Y · 2009 · signal: cf. · confidence medium
Cf. People v. Febus, 11 A.D.3d 554 , 783 N.Y.S.2d 55, 55 (2004) (reasonable suspicion existed where defendant answered “nothing,” when asked what he put in his pocket after an officer observed him look into his hand at small plastic bags while standing in a drug-prone area, followed by defendant’s startled look at the sight of the officer, and defendant’s evasive placement of the bags into his pocket); People v. Fernandez, 261 A.D.2d 178 , 691 N.Y.S.2d 386, 387 (1999) (defendant’s inability to provide a reasonable response regarding his presence in the building contributed to suspici…
discussed Cited as authority (rule) People v. Francis (2×)
N.Y. App. Div. · 2007 · confidence medium
The police officer who approached the defendant in an unmarked patrol car as the defendant was walking on a public street/ sidewalk had a common-law right of inquiry to question the defendant, as he observed the defendant placing a leafy, green substance into a paper wrapper, which substance, based upon his training and experience, the officer concluded was marihuana (see People v De Bour, 40 NY2d 210 [1976]; People v Febus, 11 AD3d 554, 555-556 [2004]; People v Sanchez, 8 AD3d 504, 505 [2004]).
The People of the State of New York
v.
Thomas Febus
Appellate Division of the Supreme Court of the State of New York.
Oct 12, 2004.
11 A.D.3d 554
Cited by 12 opinions  |  Published

[*555] Appeal by the People from an order of the Supreme Court, Kings County (Brennan, J.), dated December 8, 2003, which granted those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to police after the search and seizure of controlled substances from his person.

Ordered that the order is reversed, on the law, and those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to police subsequent to the search and seizure of controlled substances from his person are denied.

On February 10, 2003, at approximately 11:15 p.m., the arresting officer was on routine motor patrol in a “high drug prone location” when he observed the defendant standing alone on a street corner looking down “into his right hand.” From five feet away, the officer observed a plastic bag containing smaller pink ziploc bags in the defendant’s right hand. The officer, who had spent over a year in the Street Narcotics Enforcement Unit and made over 50 arrests for possession of cocaine or heroin, was familiar with common methods of packaging cocaine and heroin.

The defendant looked at the officer with a “startled look on his face” and shoved the bags into the right pocket of his jacket. The arresting officer exited the vehicle, approached the defendant, and asked the defendant what he put into his pocket. The defendant replied “nothing.” The officer then put his hand into the defendant’s pocket and recovered 42 ziploc bags of cocaine and a black plastic bag containing 40 glassines of heroin.

The hearing court found that the officer’s observation of the defendant with a plastic bag containing pink ziploc bags in his right hand activated the common-law right to inquire, permitting the officer to ask pointed questions (see People v Hollman, 79 NY2d 181, 184 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]). The hearing court further found that once the defendant “lied about possessing” the ziploc bags the officer “clearly” had “reasonable suspicion to believe that the defendant” was “engaging in criminal behavior” but lacked probable cause to search his person.

[*556] On appeal, the defendant acknowledges that the officer, “under the facts as found, would have had the right to stop and detain defendant” and “would have been allowed to frisk” the defendant for weapons had the officer feared for his safety. However, the defendant contends that the search of the defendant’s jacket pocket “went far beyond the allowable confines of a frisk.”

In People v Alvarez (100 NY2d 549, 550 [2003]) the Court of Appeals held that observation of packaging commonly used to package cocaine provided “reasonable suspicion to stop the defendant.” Similarly, in this case, the officer’s observation of the defendant with packaging commonly used to package narcotics not only justified asking pointed questions but also provided reasonable suspicion to stop him.

The defendant’s furtive movement of putting the bags in his pocket as the officer approached, coupled with his lie that he had “nothing” in his pocket, then raised the level of the encounter (see People v Alvarez, supra at 550; see also People v Ortiz, 103 AD2d 303 [1984], affd 64 NY2d 997 [1985]). However, since the encounter started with reasonable suspicion to stop, that response raised the level of the encounter to probable cause to believe that the defendant possessed narcotics, justifying the search and arrest of this person (see People v Fleury, 8 AD3d 585 [2004]).

Accordingly, the physical evidence seized and the defendant’s statement subsequent to the seizure should not have been suppressed. Ritter, J.P., H. Miller, Goldstein and Skelos, JJ., concur.