People v. Peters

Citation219 N.E.2d 595,273 N.Y.S.2d 217,18 N.Y.2d 238
Parties, 219 N.E.2d 595 The PEOPLE of the State of New York, Respondent, v. John Francis PETERS, Appellant.
Decision Date07 July 1966
CourtNew York Court of Appeals

Robert S. Friedman, White Plains, for appellant.

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.

KEATING, Judge.

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 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.

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 situation to 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 crime to justice.

The second question in Rivera was whether the police could properly frisk defendant and seize something, the possession of which constituted a crime. Since the limited detention for the purposes of inquiry was found to be a necessary adjunct to the prevention and discovery of crime, we further recognized that the answer to such an inquiry might be a bullet--in any event the exposure to danger could be very great. The frisk is a reasonable and constitutionally permissible precaution to minimize that danger. Since the frisk was held to be legal, the seizure of the evidence of a crime which was thereby discovered was also legal and the motion to suppress should have been denied.

It is well-recognized that the basis for a frisk is the concern for the well-being of the officer. Officer Lasky was in at least as dangerous a situation as was the officer who arrested Rivera, and probably more so. In Rivera, though it was nighttime, there were three policemen present and only two suspects and the frisking took place on a wide street. In this case a single officer collared a single defendant in the narrow confines of a stairway. Moreover, there was a second suspect still on the loose, perhaps still in the stairway. In such a situation the tables are easily turned, especially if the suspect possesses a dangerous weapon. Not only was Lasky's frisk legal, it was necessary--it would have been extremely poor police work Not to have frisked the defendant in such a situation.

The fact that the frisk produced an envelope containing burglar's tools rather than a knife is not determinative. As we said in Rivera, 'The fact that the police detective actually found a gun in defendant's possession is neither decisive nor material to the constitutional point in issue. The question is not what was ultimately found, but whether there was a right to find anything' (p. 447, 252 N.Y.S.2d p. 463, 201 N.E.2d p. 35).

Lasky was in a potentially dangerous situation wherein a frisk was warranted. Touching an object which may have been a knife he was just as warranted in removing it as was the officer who removed Rivera's gun. Holding the unsealed envelope, Lasky was warranted in examining it for a knife just as he would be warranted in opening a holster to see if it had a gun. Once he saw the tools, he had probable cause for arrest and was obviously entitled to seize them, as did the officer who seized Rivera's gun. Thus this case is wholly within the limits of Rivera and is a reasonable exercise of police power.

Turning next to section 180--a, it is apparent that there is not a great deal of difference between the statute and the standards used in Rivera. It is also apparent that the statute is applicable to the present facts. The hallways and stairways of large multiple dwellings, where delivery men, service men, visitors and other strangers are continually moving, must be considered public places within the statute. This is as it should be, considering the alarming number of elevator muggings, courtyard attacks and 'second story' burglaries.

The statute makes it clear that the Legislature did not intend the stopping and frisking to be an arrest. Nor, as we pointed out in Rivera, does the intrinsic nature of the activity make it an arrest. Detention for a short and reasonable period in order to question is not an arrest, and such a right of inquiry was rooted in early English practice and approved by the common-law courts and commentators. (United States v. Vita, 2 Cir., 294 F.2d 524, 530.) As Lumbard, C.J., noted in Vita, the line between detention and arrest is a thin one but a necessary one if there is to be any effective enforcement of the criminal law. For it not only aids the police but also protects those who are readily able to exculpate themselves from being arrested and having charges preferred against them before their explanations are considered.

Of course there must be an adequately defined standard for the authorization of the detention and the Legislature has provided one. The phrase 'reasonable suspicion' provides a defined standard and is, in fact, no less endowed with an objective meaning than is the phrase 'probable cause.' Courts will have no difficulty in applying this standard and have frequently in the past referred to 'suspicion' or 'reasonable suspicion' as terms with a definite meaning, somewhat below probable cause on the scale of absolute knowledge of criminal activity.

Not only are we satisfied that 'reasonable suspicion' is an adequate standard, we are also satisfied that the actions which it authorizes are constitutionally reasonable. For in...

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