392 U.S. 40 (1968), 63, Sibron v. New York

Docket Nº:Nos. 63 and 74.
Citation:392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917
Party Name:Nelson SIBRON, Appellant, v. STATE of New York. John Francis PETERS, Appellant, v. STATE of NEW YORK.
Case Date:June 10, 1968
Court:United States Supreme Court

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392 U.S. 40 (1968)

88 S.Ct. 1889, 20 L.Ed.2d 917

Nelson SIBRON, Appellant,


STATE of New York.

John Francis PETERS, Appellant,



Nos. 63 and 74.

United States Supreme Court.

June 10, 1968

Argued Dec. 11 and 12, 1967.

Mr. Justice Black dissented in part.

For concurring opinions of the Court see 88 S.Ct. 1912.


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[88 S.Ct. 1892] Kalman Finkel and Gretchen White Oberman, New York City, for appellant, Sibron.

William I. Siegel, Brooklyn N.Y., for appellee.

Michael Juviler, New York City, for the Dist. Atty. of New York County, New York, as amicus curiae.

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Robert Stuart Friedman, for appellant, Peters.

James J. Duggan, Tuckahoe, N.Y., for appellee.

William I. Siegel, Brooklyn, N.Y. for the Dist. Atty. of Kings County, New York, as amicus curiae.


Mr. Chief Justice WARREN delivered the opinion of the Court.

These are companion cases to No. 67, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, decided today. They present related questions under the Fourth and Fourteenth Amendments, but the cases arise in the context of New York's 'stop-and-frisk' law, N.Y.Code Crim.Proc. s 180--a. This statute provides:

'1. 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 [88 S.Ct. 1893] felony or any of the offenses specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions.

'2. When a police officer has stopped a person for questioning pursuant to this section and reasonably

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suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. 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.'

The appellants, Sibron and Peters, were both convicted of crimes in New York state courts on the basis of evidence seized from their persons by police officers. The Court of Appeals of New York held that the evidence was properly admitted, on the ground that the searches which uncovered it were authorized by the statute. People v. Sibron, 18 N.Y.2d 603, 272 N.Y.S.2d 374, 219 N.E.2d 196 (1966) (memorandum); People v. Peters, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, (1966). Sibron and Peters have appealed their convictions to this Court, claiming that s 180--a is unconstitutional on its face and as construed and applied, because the searches and seizures which it was held to have authorized violated their rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). We noted probable jurisdiction, Sibron v. New York, 386 U.S. 954, 87 S.Ct. 1042, 18 L.Ed.2d 101 (1967); Peters v. New York, 386 U.S. 980, 87 S.Ct. 1291, 18 L.Ed.2d 228 (1967), and consolidated the two cases for argument with No. 67.

The facts in these cases may be stated briefly. Sibron, the appellant in No. 63, was convicted of the unlawful possession of heroin. 1 He moved before trial to suppress

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the heroin seized from his person by the arresting officer, Brooklyn Patrolman Anthony Martin. After the trial court denied his motion, Sibron pleaded guilty to the charge, preserving his right to appeal the evidentiary ruling. 2 At the hearing on the motion to suppress, Officer Martin testified that while he was patrolling his beat in uniform on March 9, 1965, he observed Sibron 'continually from the hours of 4:00 P.M. to 12:00, midnight * * * in the vicinity of 742 Broadway.' He stated that during this period of time he saw Sibron in conversation with six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts. The officer testified that he did not overhear any of these conversations, and that he did not see anything pass between Sibron and any of the others. Late in the evening Sibron entered a restaurant. Patrolman Martin saw Sibron speak with three more known addicts inside the restaurant. Once again, nothing was overheard and nothing was seen to pass between Sibron and the addicts. Sibron sat down and ordered pie and coffee, and, as he was eating [88 S.Ct. 1894] Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, 'You know what I am after.' According to the officer, Sibron 'mumbled something and reached into his pocket.' Simultaneously, Patrolman Martin thrust his hand into the same pocket, discovering several glassine envelopes, which, it turned out, contained heroin.

The State has had some difficulty in settling upon a

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theory for the admissibility of these envelopes of heroin. In his sworn complaint Patrolman Martin stated:

'As the officer approached the defendant, the latter being in the direction of the officer and seeing him, he did put his hand in his left jacket pocket and pulled out a tinfoil envelope and did attempt to throw same to the ground. The officer never losing sight of the said envelope seized it from the def(endan) t's left hand, examined it and found it to contain ten glascine (sic) envelopes with a white substance alleged to be Heroin.'

This version of the encounter, however, bears very little resemblance to Patrolman Martin's testimony at the hearing on the motion to suppress. In fact, he discarded the abandonment theory at the hearing. 3 Nor did the officer ever seriously suggest that he was in fear of bodily harm and that he searched Sibron in self-protection to find weapons. 4

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The prosecutor's theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin's part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress. As the judge stated, 'All he knows about the unknown men: They are narcotics addicts. They might have been talking about the World Series. They might have been talking about prize fights.' The prosecutor, however, reminded the judge that Sibron had admitted on the stand, in Patrolman Martin's absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest.

Section 180--a, the 'stop-and-frisk' statute, was not mentioned at any point in the trial court. The Appellate Term of the Supreme Court affirmed the conviction without opinion. In the Court of Appeals of New York, Sibron's case was consolidated with the Peters case, No. 74. The Court of Appeals held that the [88 S.Ct. 1895] search in Peters was justified under the statute, but it wrote no opinion in Sibron's case. The dissents of Judges Fuld and Van Voorhis, however, indicate that the court rested its holding on s 180--a. At any rate, in its Brief in Opposition

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to the Jurisdictional Statement in this Court, the State sought to justify the search on the basis of the statute. After we noted probable jurisdiction, the District Attorney for Kings County confessed error.

Peters, the appellant in No. 74, was convicted of possessing burglary tools under circumstances evincing an intent to employ them in the commission of a crime. 5 The tools were seized from his person at the time of his arrest, and like Sibron he made a pretrial motion to suppress them. When the trial court denied the motion, he too pleaded guilty, preserving his right to appeal. Officer Samuel Lasky of the New York City Police Department testified at the hearing on the motion that he was at home in his apartment in Mount Vernon, New York, at about 1 p.m. on July 10, 1964. He had just finished taking a shower and was drying himself when he heard a noise at his door. His attempt to investigate was interrupted by a telephone call, but when he returned and looked through the peephole into the hall, Officer Lasky saw 'two men tiptoeing out of the alcove toward the stairway.' He immediately called the police, put on some civilian clothes and armed himself with his service revolver. Returning to the peephole, he saw 'a tall man tiptoeing away from the alcove and followed by this shorter man, Mr. Peters, toward the stairway.' Officer Lasky testified that he had lived in the 120-unit building for 12 years and that he did not recognize either of the men as tenants. Believing that he had happened upon the two men in the course of an attempted burglary,6

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Officer Lasky opened his door, entered the hallway and slammed the door loudly behind him. This precipitated a flight down the stairs on the part of the two men,7 and Officer Lasky gave chase. His apartment was located on the sixth floor, and he apprehended Peters between the fourth and fifth floors. Grabbing Peters by the collar, he continued down another flight in unsuccessful pursuit of the other man. Peters explained his presence in the building to Officer Lasky by saying that he was visiting a girl friend. However, he declined to reveal the girl friend's name, on the ground that she was a married woman. Officer Lasky patted Peters down for weapons, and discovered a hard object in his pocket. He stated at the hearing that the object did not feel like a gun, but that it might have been a knife. He removed the object from Peters' pocket. It was an opaque plastic envelope, containing burglar's tools.

[88 S.Ct. 1896] The trial court explicitly refused to credit Peters' testimony that he was merely in the building to visit his girl friend. It found that Officer Lasky had the requisite 'reasonable...

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