18 N.Y.2d 238, People v. Peters

Citation:18 N.Y.2d 238, 273 N.Y.S.2d 217
Party Name:People v. Peters
Case Date:July 07, 1966
Court:New York Court of Appeals

Page 238

18 N.Y.2d 238

273 N.Y.S.2d 217

The PEOPLE of the State of New York, Respondent,


John Francis PETERS, Appellant.

New York Court of Appeals

July 7, 1966.

Page 239

[273 N.Y.S.2d 219] Robert S. Friedman, White Plains, for appellant.

Page 240

Leonard Rubenfeld, Dist. Atty. (James J. Duggan, Tuckahoe, of counsel), for respondent.

Lewis A. Stern, New York City, and Alan H. Levine, Buffalo, for New York Civil Liberties Union, amicus curiae.

Page 241


Samuel Lasky was for 18 years a patrolman in the New York City Police Department and for 12 years resided on the sixth and top floor of a Mount Vernon apartment house. At about one o'clock on the afternoon of July 10, 1964, Lasky stepped out of the shower and heard a noise at his front door. Before he could investigate, his phone rang and he answered it. After he completed the call, he went to the door and through the peephole he observed two men tiptoeing about the hallway. He went back to the telephone, called the Mount Vernon police, dressed (not in uniform) and returned to the door where he observed the two men tiptoeing toward the stairway. Armed with his gun, he slammed his door and followed the footsteps he heard running down the stairway.

Officer Lasky apprehended defendant--whom he did not recognize as being a tenant--between the fifth and fourth floors and asked him what he was doing in the building. Defendant claimed to be looking for a girl friend but refused to identify her because he said she was a married woman. Unimpressed with defendant's apparent chivalry, Lasky brought him to the fourth floor and frisked him for a weapon by tapping his groin pockets and under his arms. He felt something hard which 'could have been a knife' and from the right pants pocket he withdrew an unsealed opaque plastic envelope. Upon examination the envelope was found to contain six picks, two Allen wrenches with the short leg of each filed down to a screwdriver edge and a tension bar. These, from [273 N.Y.S.2d 220] his 18 years' experience, Lasky instantly recognized as burglar's tools. Lasky then went back to the sixth floor doorway from which defendant had come but was satisfied that the two men had not gotten in. He took defendant down to the manager's office and turned him and the envelope over to Mount Vernon police.

Page 242

Defendant's motions to suppress the evidence and to dismiss his indictment for unlawful possession of burglar's tools were denied. He was then convicted upon his plea of guilty.

On this appeal defendant contends that the evidence of the tools was the result of an unlawful search and seizure and was inadmissible. Specifically, he argues that (1) the rationale of People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32, is inapplicable and (2) section 180--a of the Code of Criminal Procedure, if applicable, is unconstitutional.

Though Rivera (supra) was decided after the passage of section 180--a, the statute was not in effect at the time the events took place. We hold that the rationale of Rivera is applicable to the instant case so that, even without the aid of the statute, the seizure of the burglar's tools was legal.

In Rivera we divided the problem into two stages: the legality of the detention and the legality of the frisk. With regard to the former, we noted (p. 444, 252 N.Y.S.2d p. 461, 201 N.E.2d p. 34) that it is the business of police to Prevent crime and that prompt inquiry into 'suspicious or unusual street action' is an indispensable police power 'And the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed' (p. 445, 252 N.Y.S.2d p. 461, 201 N.E.2d p. 34).

The suspicious circumstances in this case warranted Officer Lasky's stopping defendant and inquiring as to his presence in the building. Though Rivera happened 'in the streets', the power of inquiry is not limited to the streets. It is the reasonableness of the officer's suspicion which is determinative and the place where the events transpire is only one factor in weighing this suspicion.

In the instant case Lasky twice observed two men, whom, as a 12-year resident, he did not recognize as belonging in the building, tiptoeing around the top floor of an apartment house. When his door slammed, they hastily exited by the stairway, not the elevator.

Such circumstances are reasonably suspicious and the common law has long recognized the right of law officers in such a

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situation to [273 N.Y.S.2d 221] make the limited intrusion of asking one for an explanation of his actions (see citations in Rivera, supra, p. 446, 252 N.Y.S.2d p. 462, 201 N.E.2d p. 35). In detaining defendant, Lasky was performing his duty and exercising a reasonable and necessary police power for the prevention of crime and the preservation of the public order. As the trial court noted, an off-duty policeman is not relieved of his obligation to preserve the peace or protect the lives and property of citizens. The acceptance of this duty has been demonstrated on numerous occasions when such officers have risked and sacrificed their lives to frustrate the commission of crime or to bring the perpetrator of...

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