58 N.Y.2d 51 | NY | 1982
Lead Opinion
OPINION OF THE COURT
A suspect may not be frisked by a police officer who has no knowledge of facts that would provide a basis for suspecting that the individual is armed or dangerous. The absence of such circumstances leads to the conclusion that the search here was unreasonable as a matter of law and,
Shortly before midnight on January 4, 1974, two black men armed with a shotgun attempted to rob a liquor store, shooting the owner while doing so. Officer John Morris went to the scene, but found that other officers had already arrived and that the victim had been taken to the hospital. Officer Morris returned to his radio car and began driving back to the precinct house. Two blocks from the robbery scene, he was flagged down by a man who identified himself as a patron of an establishment named “Fat Man’s Bar”, located approximately one-half block from the liquor store. The man stated that he had heard about the shooting and that two black men who looked “suspicious” had just entered the Fat Man’s Bar.
Officer Morris drove back to the bar, called for additional officers, and entered the establishment. The citizen who had stopped Officer Morris also entered and pointed out defendant and his companion. Without ever asking why the man believed defendant and his companion to be suspicious and without himself making any inquiry or observation of the two men, Officer Morris frisked defendant and his friend. The police officer found and removed a loaded .32 caliber revolver from defendant’s waistband. The other man had ho weapon. The two suspects were taken to the hospital where the liquor store owner was being treated; he stated that the men were not the ones who had attempted to rob him.
Defendant pleaded guilty to attempted felonious possession of a weapon after his motion to suppress was denied.
The seminal case in the area of stop-and-frisk is, of course, Terry v Ohio (392 US 1). There, the Supreme Court upheld the validity of a stop-and-frisk when “the police officer [is] able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id., at p 21.) The court added: “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” (Id., at p 21, n 18.) Manifestly, the basis for deter
This focus on the officer’s personal observation and experience has been recognized in this court’s analysis of stop and-frisk situations. Thus, in People v Benjamin (51 NY2d 267, 270-271), it was noted that a mere anonymous tip of “men with guns” was insufficient to justify a pat down, but that the observations of the experienced officer when he arrived at the scene, in conjunction with the anonymous information, were such as would justify the frisk. In People v Klass (55 NY2d 821), two officers on foot patrol were approached by an unidentified person who described a man with a gun in the hallway of an adjacent building. The officers immediately ran into the building and found Klass, who matched the description just received. Only after Klass refused to give his name or an explanation for his presence did the officers frisk him, thereby discovering a gun. Implicit in this court’s affirmance was the recognition that, although initially acting on secondhand information, the officers had articulable knowledge of circumstances tending to support a reasonable suspicion that Klass was dangerous.
In the present case, the police officer had no knowledge of anything to suggest that defendant possessed a firearm or otherwise posed a threat to the officer’s safety. The citizen’s report that two men were suspicious, without more, does not provide adequate grounds for a frisk. Indeed, whether a person is “suspicious” is the ultimate determination that is to be reached by the officer on the basis of his or her own observations and experience. A frisk would not be justifiable if supported by only the officer’s conclusory statement that the subject looked suspicious; so, too, the infirmity rising from the absence of articulable facts is compounded when the officer relies on an inexperienced lay person’s conclusion that is not grounded on any objective factual elaboration.
In so holding, the court is cognizant of the holdings in Adams v Williams (407 US 143) and People v Moore (32 NY2d 67, cert den 414 US 1011). Critical to the decisions in
Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, and the indictment dismissed.
Concurrence Opinion
(concurring). Increasing concern over unjustified police encounters with our citizenry, epitomized only last month by the argument of Kolender v Lawson (51 USLW 3377) in the United States Supreme Court (see 32 Crim L Rptr 4089), impels me, in this classic illustration of such a case, to articulate my own approach.
To this end, I first observe that, compatible with constitutional respect for each individual’s right to be free from arbitrary intrusion by government, a person may not be subjected to a “stop and frisk” in the absence of at least “reasonable suspicion” of involvement in criminal activity and a concomitant reasonable apprehension of armed resistance (People v De Bour, 40 NY2d 210, 223; People v Carrasquillo, 54 NY2d 248, 252-253; People v Chestnut, 51 NY2d 14, 21-22, cert den 449 US 1018). Thus, the present appeal requires us to decide whether these criteria were
The frisk disclosed that Carney carried a revolver in the waistband of his trousers. Though neither he nor the revolver turned out to have any connection with the shooting, in which a shotgun rather than a revolver had been used, its discovery led to his indictment on a single count alleging unlawful possession.
But, initially, as further background for my analysis, I recite whatever little more can be added concerning the circumstances of the police encounter with which we are concerned, necessarily relying for this purpose on the suppression Judge’s special findings as to what the testimony had been. By these we are informed that, by the time Officer Morris arrived at the scene of the burglary, its perpetrators had made their escape, officers other than Morris had taken command of the scene and the victim had been removed to a hospital. Apparently convinced that he was not needed, without more ado Officer Morris was
This as background, I next point out that, while “reasonable suspicion” may justify a forcible seizure short of a full-scale arrest, it must be based on “specific” facts so that its propriety may be measured by the “detached, neutral scrutiny of a judge” (Terry v Ohio, 392 US 1, 21). Standing alone, a mere “hunch” or “gut reaction”, since it will not fit this bill, will not serve to make a suspicion reasonable (People v Sobotker, 43 NY2d 559, 564). Nor is the “good faith” of an officer who so proceeds, no matter how sincerely, enough (see Beck v Ohio, 379 US 89, 97). For, recognition that intrusions short of a full-scale search or seizure in some circumstances may be countenanced on “reasonable suspicion” is not intended to obscure the reality that “a patdown for weapons” or, for that matter, any other purpose that involves exploration of the outer surfaces of a person’s clothing all over his or her body, “is a substantial intrusion into one’s privacy” (Ybarra v Illinois, 444 US 85, 108 [Rehnquist, J., dissenting], citing Terry v Ohio, supra, at p 17, n 13; see Priar & Martin, Searching & Disarming Criminals, 45 J Crim L, Criminology & Police Science 481).
Thus, it is clear that the Terry court was not insensitive to the qualitative, even if not quantitative, nature of the intrusion wrought by a stop-and-frisk when, eschewing a “rigid all-or-nothing model of justification”, it held that, in
Needless to say, when a confrontation occurs, these concerns for the liberty and privacy of the individual are in tension with the far from inconsequential responsibilities assigned to law enforcement authorities. Stripped of rhetoric, in striking a balance, once we know, as here, the intensity of the intrusion, the focus must be on the reasonableness of the justification for undertaking it.
So examined, it is obvious that neither Officer Morris nor his fellows, when they forcibly imposed themselves on Carney, had any firsthand knowledge of any facts on which they could premise a reasonable suspicion that the defendant or his companion, any more than any other individuals, had committed, were committing or were about to commit a crime (see People v Cantor, 36 NY2d 106, 112; CPL 140.50, subds 1, 3). When, at the informant’s inspiration, their eyes lighted on Carney for the first time, there is nothing to indicate that they observed anything extraordinary or even noteworthy about him or his companion, not
But the officers had neither sought nor received an explanation. This did not occur when the informant initially accosted Morris, or when other officers were being gathered to form the police party which was to enter the bar, or while they were traversing the one and one-half blocks between the place at which the informant stopped Morris and the bar itself. Yet, notwithstanding the absence of any objective fact or factual inference by which the intrusion could be justified, and without so much as the briefest kind of common-law inquiry (see People v Carrasquilla, 54 NY2d, at p 252; People v Howard, 50 NY2d 583, 586; People v De Bour, 40 NY2d, at p 219), the police precipitously proceeded head on to command Carney’s movements and to search his person.
Of course, the action a police officer may or, at times, must take need not depend on his or her own observations. Reasonable police suspicion of criminal activity can be founded, as it perhaps most often is, on information conveyed by a third party (see, generally, 3 La Fave, Search &
True, Morris’ election not to ignore the informant’s lead, no matter its scantiness, is easy to understand. Had he acted instead with the requisite respect for constitutional rights dictated by the limited information to which he was privy, he might have deserved applause for conscientiousness. On analysis, however, on the totality of what was within his ken, there was only the remotest, if any, prospect that the individuals to whom his attention had been drawn had any more connection with the crime under investigation than would almost any other two men targeted at random in Harlem. Thus, having no reasonable basis to suspect Carney and his friend of the burglary, Morris could have had none for suspecting that Carney was armed.
Furthermore, the more one thinks of it the more apparent it becomes that the informant’s bare communication of his unsupported suspicion was inadequate to justify the frisk. He never conveyed anything to permit his surmise to rise above the level of a nebulous, baseless, inchoate opinion. Unlike such cases as People v McLaurin (43 NY2d 902) and People v Kinlock (43 NY2d 832), in each of which the informant specifically advised the police that the defendant possessed a firearm, a definitive indication of criminality, the informant in the case before us made the police aware of no fact linking Carney with any crime.
Consequently, at best, all the informer proffered to prompt the police to proceed posthaste against the liberty and privacy of the defendant was a “hunch” or, as some might put it, an undefined “sixth sense”. Had a trained, experienced, objectively stanced police officer, let us say Officer Morris himself, been in Fat Man’s Bar when James Carney entered, he could not have executed a stop-and-frisk on such a subjective reaction alone. A fortiori, he could not rely on a similar reaction by a layman not possessed of police qualifications or responsibilities to justify the shortcutting of Carney’s constitutional rights. All things considered, then, there was no sufficient showing of reasonable suspicion to counterbalance appellant’s right of privacy.
I therefore conclude that the order of the Appellate Division should be reversed, the judgment and plea vacated, the motion to suppress granted and the indictment dismissed.
.Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg concurs in a separate opinion.
Order reversed, etc.
. Carney’s companion apparently was similarly uninvolved. Moreover, his frisk uncovered no weapon.
. Indeed, the Supreme Court, re-emphasizing the great store it places on the values the Fourth Amendment was intended to protect, took the occasion to note that it had “always recognized” that, “ ‘[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ Union Pac.R. Co. v Botsford, 141 U.S. 250,251” (Terry v Ohio, supra, at p 9; see, also, Delaware v Prouse, 440 US 648, 653-654; People v Chestnut, 51 NY2d 14, at p 22, n 7).
. Section 12 of article I of the State Constitution, using language duplicative of that in the Federal Bill of Rights, affords separate and additional protection against “unreasonable searches and seizures” (see People v Elwell, 50 NY2d 231, 235).
. The official records of the National Climatic Center of the United States Department of Commerce indicate that, on the date of the frisk, official weather readings taken at Central Park in Manhattan, within a mile or two of Fat Man’s Bar, show that an inch and a half of snow had fallen and the evening temperature approximated 28 degrees Fahrenheit.