Lead Opinion
OPINION OF THE COURT
On the afternoon of March 22, 1979, uniformed officers Smith, Leonard and two others were on radio motor patrol. The officers were members of the 28th Precinct task force, whose purpose is to patrol narcotics-prone areas within the precinct, known as “special condition areas”, to disburse crowds that formed to buy and sell drugs. At approximately 3:45 p.m., while patrolling such an area, the police
When Officer Smith made the same request of defendant, the latter started to reach into the left pocket of his jacket. As he moved his hand to do so, Smith observed a bulge in that pocket. Fearing what was in the pocket, the police officer placed both his hands on the outside of defendant’s jacket, over the pocket and through the jacket’s outer lining grasped the defendant’s hand and the object contained therein. The feel of the object alerted the officer to the fact that the object was a gun. Smith shouted to his fellow officers that the defendant had a gun and directed defendant to remove his hand from the pocket slowly. The defendant complied, and the officer reached into the pocket and withdrew a loaded .22 semiautomatic pistol. The defendant was then placed under arrest and frisked for other weapons. A subsequent search at the police precinct disclosed that defendant possessed 17 glassine envelopes containing heroin.
The police conduct in this street encounter was reasonable and not overly intrusive. The sequence of events must be “viewed in its entirety as a dynamic encounter where compelling considerations are cast in competing roles
Confronted by the reality of the pervasiveness of drug dealing and the use of handguns, Officer Smith, a streetwise policeman, took a minimally intrusive course in light of the surrounding circumstances consonant with the protection of life and respect for human dignity (see People v Samuels, 68 AD2d 663, affd 50 NY2d 1035). Patently, Officer Smith’s action, in that split second when he saw the bulge and defendant’s reaching into the pocket containing such bulge, was reasonable. The limited pat-down was undertaken, not to discover evidence of a crime, but to enable the officer to pursue his investigation without fear of violence (see People v Stroller, 42 NY2d 1052, 1053; Adams v Williams, 407 US 143, 145-146). As aptly noted by the Court of Appeals in People v Castro (53 NY2d 1046, 1048): “The police had reasonable suspicion to warrant the stop which was reasonably related in scope and intensity to the circumstances surrounding the encounter. Based on
Accordingly, the judgment, Supreme Court, New York County (Haft, J.), rendered August 5, 1980, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree and attempted criminal possession of a weapon in the third degree, should be affirmed.
Dissenting Opinion
I would reverse the conviction. In my opinion, the physical evidence should have been suppressed.
This is an appeal from a judgment, entered August 5, 1980, in the Supreme Court, New York County (Fitzer, J., at the pretrial hearing; Haft, J., at plea and sentencing), convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree and attempted criminal possession of a weapon in
Defendant’s conviction arose out of an incident which occurred on the afternoon of March 22, 1979. Four New York City police officers, two of whom testified at the suppression hearing, were in uniform and on radio motor patrol with the 28th Precinct drug task force in an area designated as narcotics prone. At approximately 3:45 p.m., the officers approached the corner of 116th Street and St. Nicholas Avenue. A crowd of approximately 15 persons, including defendant, had gathered there. Defendant was purportedly in the company of another male who, according to the testimony of Officer Smith, one of the policemen, was someone who regularly frequented that location. In addition, the officers had previously dispersed similar crowds which had assembled on this particular corner.
Although there was no sign of any suspicious activity, such as the transfer of items between individuals, nor was any distinguishable conversation overheard, the people congregating on the street were commanded to move on. Officer Smith stated that this direction was specifically conveyed to the defendant and the person with him. The police then continued their patrol, returning some 20 minutes later. The defendant, his friend, and a number of others had remained on the scene. Officer Smith again told the crowd to leave and informed them that if they were still there when he got back, they should be able to produce some identification showing that they lived in the vicinity. However, when the officers made a third visit to the spot less than an hour later, the defendant and his companion were on the same corner. There were then about 10 or 11 persons on the sidewalk. Officer Smith admitted on cross-examination that while pedestrians had to walk around the group, no one was being pushed into the street.
The four officers exited their car and called defendant and the other man over to a fence, demanding identification. Defendant’s friend reached into his back pants pocket and handed over a wallet containing identification with his
After the defendant was placed under arrest, he was taken to the station house where a search ensued. Seventeen glassine envelopes containing a white powder, subsequently determined to be heroin, were discovered in a brown bag in his right-hand jacket pocket. At the conclusion of the pretrial hearing, the court denied the motion to suppress both the weapon and the drugs. On appeal, the defendant contends that the police officers lacked authority to stop him, and in the absence of reasonable suspicion that the bulge was a gun, to seize him.
In People v Cantor (36 NY2d 106, 111) the Court of Appeals held that whenever “an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment”. Moreover, a person may not be stopped in a public place unless a police officer has reasonable suspicion to believe that such person is committing, has committed or is about to commit a crime. While the court recognized the common-law right of the police to make investigative inquiries, it noted (p 113) that “this authority does not give the police a license to violate the Constitution”.
According to the court, a police officer should, after a valid stop, demand an explanation of the suspect’s conduct. A search is warranted only if the officer reasonably suspects that he is in danger of physical harm. (People v Sanchez, 38 NY2d 72.) In that case, the court declared that suppression should have been granted, since the officer did
Distinguishable from this line of cases are those in which the officer involved saw a bulge which had “the configuration of a handgun” (People v Goings, 41 NY2d 759, 762), or the complete outline of a revolver (People v Prochilo, 41 NY2d 759), or a bulge at the waistband (a waistband bulge being deemed by the court to be a tell-tale sign of a weapon), coupled with the defendant’s having conspicuously crossed to the opposite side of the street at the approach of the police, and it was after midnight in an area known for its high incidence of drug dealing (People v De Bour, 40 NY2d 210). Thus suppression is not appropriate where there is reasonable suspicion to conclude that the person being stopped is armed or, as in People v Samuels (50 NY2d 1035, cert den 449 US 984) and People v Rivera (78 AD2d 327) the totality of the circumstances are such as to provide support for the police intrusion.
None of the factors justifying the “seizure” of defendant are present in the instant case. “[Ijnnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand.” (People v De Bour, supra, at p 216.) The defendant was not engaged in any suspicious conduct. He was merely standing on a street corner, along with a group of other people. While the area may have been
In fact, Officer Smith acknowledged that the real motivation behind his action was “because I’m not used to a man going into a jacket pocket for a wallet. They always go to a hip pocket for a wallet.” Thus, the police conduct at issue here rests on the highly dubious proposition that wallets are normally kept in rear pockets, rather than in jacket pockets, and, therefore, the officers could reasonably suspect that they were in physical danger. In view of the complete lack of any legal authority to support such a premise, it would be contrary to all statutory and constitutional requirements for this court to uphold a stop and frisk predicated on the notion that police officers may, in effect, reasonably conclude that they are in physical danger whenever they subjectively feel themselves to be in such peril.
Consequently, the police conduct in seizing and frisking the defendant was not proper, and the motion to suppress the physical evidence should have been granted.
Judgment, Supreme Court, New York County, rendered on August 5, 1980, affirmed.
