18 N.Y.2d 603, People v. Sibron

Citation:18 N.Y.2d 603, 272 N.Y.S.2d 374
Party Name:People v. Sibron
Case Date:June 07, 1966
Court:New York Court of Appeals
 
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Page 603

18 N.Y.2d 603

272 N.Y.S.2d 374

The PEOPLE of the State of New York, Respondent,

v.

Nelson SIBRON, Appellant.

New York Court of Appeals

Argued June 7, 1966. Decided July 7, 1966.

Page 604

[272 N.Y.S.2d 375] Kalman Finkel and Anthony F. Marra, New York City, for appellant.

Aaron E. Koota, Dist. Atty. (Michael Schwartz, Brooklyn, of counsel), for respondent.

Judgment affirmed.

DESMOND, C.J., and BURKE, SCILEPPI, BERGAN and KEATING, JJ., concur.

FULD, J., dissents and votes to reverse for the reasons stated in his dissenting opinion in People v. Peters, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, decided herewith.

VAN VOORHIS, J., dissents, and votes to reverse in the following opinion.

VAN VOORHIS, Judge (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 [272 N.Y.S.2d 376] 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

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to him 'You know what I am looking for.' This may be enough to bring the appellant within subdivision 1 of section 180--a of the Code of Criminal Procedure which provides that 'A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony'. On the basis of the heroin which the officer removed from his pocket, he was at first charged with violation of section 1751 of the Penal Law, Consol.Laws, c. 40 which is a felony, but this was reduced to the misdemeanor charge of violating section 3305 of the Public Health Law, Consol.Laws, c. 45. Giving a liberal construction to the power of a police officer to stop and frisk, under said section added by chapter 86 of the Laws of 1964, it may be assumed that the police officer reasonably suspected that this man was committing or was about to commit a felony within the meaning of this statute, so that he was entitled to stop and frisk him. Until the discovery of the heroin in his pocket, the officer had, however, no probable cause on which to arrest him.

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, 252 N.Y.S.2d 458, 201 N.E.2d 32, or People v. Pugach, 15 N.Y.2d 65, 255 N.Y.S.2d 833, 204 N.E.2d 176. The power to frisk is practically unlimited, inasmuch as whether an officer 'reasonably suspects' that some one 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 upon mere suspicion' (Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479), although they may frisk on suspicion. The very abuses to which this important power is subject furnishes a strong reason

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for confining its exercise to the single purpose...

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