18 N.Y.2d 603 | NY | 1966
Dissenting Opinion
(dissenting). There was no probable cause to make an arrest prior to the discovery of this package of heroin when the officer put his hand into the suspect’s pocket allegedly frisking him for a dangerous weapon, nor do the People contend on this appeal that there was probable cause to make an arrest. The testimony of the officer on the pretrial hearing of the motion to suppress suggests that he was looking for violation of the narcotics law, inasmuch as he testified that he saw appellant talking with known drug addicts, and stated
Denial of the motion to suppress the heroin which the officer took from his pocket depends, in order to be sustained, upon the theory that the officer had the right to frisk him under the first sentence of subdivision 2 of section 180-a, and that having found him in possession of the heroin instead of a knife or revolver the narcotic was properly seized and constituted a predicate for his ensuing arrest. This would be authorized by the last sentence of subdivision 2 of section 180-a, if it is constitutional, which reads: ‘ ‘ If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person(Italics supplied.)
That sentence goes beyond anything decided in People v. Rivera (14 N Y 2d 441) or People v. Pugach (15 N Y 2d 65). The power to frisk is practically unlimited, inasmuch as whether an officer “reasonably suspects” that someone is committing, has committed or is about to commit a felony necessarily depends to a large extent upon the subjective operations of the mind of the officer. “ The police may not arrest on mere suspicion” (Mallory v. United States, 354 U. S. 449, 454), although they may frisk on suspicion. The very abuses to which this important power is subject furnish a strong rea
If a frislc reveals a weapon, which is the only purpose for which frisking is authorised, then it should be confiscated and be evidence against the accused on a charge of unlawfully possessing or concealing a weapon or in any other criminal context in which the possession of a weapon is a factor. If we go beyond that, then frisking a suspect, which can be done in practice (though not in theory) at the officer’s whim, will become a pretext for the general search of the person, without probable cause, which the Fourteenth Amendment was designed to prevent. The power to frisk is an exception to the probable cause rule in search and seizure, and is not a search at all except for the discovery of a dangerous weapon concealed upon the person. There it should end, for all purposes. The protection thereby afforded to a policeman, and to bystanders if a shooting duel ensues, is so manifestly called for as a matter of common sense that the benefits to be derived should not be foregone by bending this wholesome device to a different and unintended purpose and by so doing subtly to subvert an important part of the Fourth Amendment.
This language referring to describing particularly the things to be seized under a warrant, which is taken directly from the Fourth Amendment, lends strength by analogy to a rule that the products of a frisk should be limited to the purpose-of the frisk which is to discover and seize dangerous weapons from the person of a suspect, and no more.
If the heroin seized from appellant can be used against him in this manner, what may happen in other instances can readily be perceived from People v. Pugach (15 N Y 2d 65, supra). There the defendant sat between two police officers in the rear seat of an automobile with a brief case upon-his lap. They frisked him without discovering a weapon and'then opened the brief case which contained a revolver. We held' that the brief case was an extension of his person so that it was included within the frisk rule of Rivera. It is apparent that, if the police can go where they will opening brief cases and inspecting them for whatever they may contain, which, if contraband, may then be used against the possessor although the safety of the officer or public from violence is not remotely involved, we shall have progressed a considerable distance toward the police state.
Within limits it is true that a search may be made of the person as incident to an arrest without a warrant based on probable cause (Harris v. United States, 331 U. S. 145), and where a warrant has been issued the officers conducting the search are not' limited precisely to the articles of property enumerated therein, particularly if they are instrumentalities of crime (Johnson v. United States, 293 F. 2d 539, cert. den. 375 U. S. 888), although these rules are subject to limitation (Preston v. United States, 376 U. S. 364). But here there was neither search warrant nor arrest, nor probable cause for either. The frisk, whether authorized by statute or judicial decision, is an exception to the search and seizure rules which are all based on probable cause. In the interest of public
Here, without probable cause, the frisk discovered the heroin, then the heroin served as a basis for arrest which, in turn, was claimed to justify the search which disclosed it. This violates the rule that a search cannot be supported by what it discloses. Neither can it be said, with any sense of reality, that since the officer could frisk almost at will, anything which he discovers can be utilized, however remote it may be from dangerous weapons, with the same effect as though the search had been incidental to a valid arrest or upon a warrant based on probable cause.
The judgment appealed from should be reversed and appellant’s motion to suppress granted under section 813-c of the Code of Criminal Procedure.
Judgment affirmed.
Lead Opinion
Judgment affirmed.