Peoplev. McFadden

There are at least two problems with that conclusion. First, the People did not advance that theory before the hearing court and should not now be heard to make such argument for the first time on appeal (see, People v Johnson, 64 NY2d 617, 619, n 2). Second, the reasons asserted for the stop are not objective, and, more importantly, the purpose for the stop was not simply to request information. Rather, the purpose for the 1004 stop was to make specific inquiries about defendant and to demand that he explain his behavior. Thus, under De Bour, the police were acting at least at the second level of inquiry, which required them to have a "founded suspicion that criminal activity is afoot” (People v De Bour, supra, at 223). Here, there was no such suspicion (see generally, Sack, Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v De Bour, 66 NYU L Rev 512, 529-550 [1991]). In this technological age, when computers are almost as commonplace as TV sets or stereo systems, a man walking in his own neighborhood in the middle of the day, carrying a box containing a computer keyboard, should not serve as the basis of a police intrusion of any kind. Because the initial stop of defendant was illegal, any evidence seized must be suppressed (see, Wong Sun v United States, 371 US 471). The court’s conclusion that defendant consented to the police intrusion is not supported by the record, or by the reality of the encounter. The prosecution had a heavy burden to establish defendant’s consent (People v Kuhn, 33 NY2d 203, 208-209). "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” (People v Gonzalez, 39 NY2d 122, 128). Here, the police exited a police car, approached defendant on the porch of his residence and asked him if they could talk to him. The police did not advise defendant that he could refuse to talk. Most reasonable people, not experienced in the area of criminal law, when approached by a police officer who wants to ask questions, probably believe that, if they refuse to consent, the police will ask anyway so they may as well cooperate. That is not voluntary consent, but submission to authority (see, Bumper v North Carolina, 391 US 543, 550). Accordingly, the judgment is reversed, defendant’s motion to suppress granted and the indictment dismissed. All concur, except Callahan, J. P., and Balio, J., who dissent and vote to affirm in the following Memorandum.