40 N.Y.2d 210, People v. De Bour

Citation:40 N.Y.2d 210, 386 N.Y.S.2d 375
Party Name:People v. De Bour
Case Date:June 15, 1976
Court:New York Court of Appeals
 
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Page 210

40 N.Y.2d 210

386 N.Y.S.2d 375

The PEOPLE of the State of New York, Respondent,

v.

Louis DE BOUR, also known as Louis De John, Appellant. The PEOPLE of the State of New York, Respondent,

v.

Milton LA PENE, III, Appellant.

New York Court of Appeals

June 15, 1976.

[386 N.Y.S.2d 378] Susan E. Hofkin and William E. Hellerstein, New York City, for appellant Louis De Bour.

Eugene Gold, Dist. Atty. (Eugene H. Scher, Brooklyn, of counsel), for respondent in first action.

David J. Gottlieb and William E. Hellerstein, New York City, for appellant Milton La Pene.

Nicholas Ferraro, Dist. Atty. (Joseph DeFelice, Jamaica Estates, of counsel), for respondent in second action.

WACHTLER, Judge.

Both of these appeals concern the very sensitive and troublesome issues relating to the nature and extent of police conduct toward private citizens. In People v. De Bour the order of the Appellate Division should be affirmed; in People v. La Pene the order of the Appellate Division should be reversed.

People v. De Bour

This case raises the fundamental issue of whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information. We hold that he may. The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken.

At 12:15 a.m. on the morning of October 15, 1972, Kenneth Steck, a police officer assigned to the Tactical Patrol Force of the New York Police Department, was working the 6:00 p.m. to 2:00 a.m. tour of duty, assigned to patrol by foot a certain section of Brooklyn. While walking his beat on a street illuminated by ordinary street lamps and devoid of pedestrian traffic, he and his partner noticed someone walking on the same side of the street in their direction. When the solitary figure of the defendant, Louis De Bour, was within 30 or 40 feet of the uniformed officers he crossed the street. The two policemen followed suit and when De Bour reached them Officer Steck inquired as to what he was doing in the neighborhood. De Bour, clearly but nervously, answered that he had just parked his car and was going to a friend's house.

The patrolman then asked De Bour for identification. As he was answering that he had none, Officer Steck noticed a slight waist-high bulge in defendant's jacket. At this point the policeman asked De Bour to unzipper his coat. When De Bour complied with this request Officer Steck observed a revolver protruding from his waistband. The loaded weapon was remov from behind his waistband and he was arrested for possession of the gun.

At the suppression hearing Officer Steck testified to the above facts noting that the encounter lasted 'a few minutes'. On cross-examination, Officer Steck stated that at the time he believed defendant might have been involved with narcotics and crossed the street to avoid apprehension. On the other hand the defendant testified that he never saw the police until they crossed the street in front of him and that he continued walking straight ahead. He stated that the police asked him where he was going and also whether he had any dope in his pockets. He answered that he had been visiting at his mother's home with relatives. De Bour further testified that during this encounter, Steck's partner proceeded to pat his clothing and two or three minutes later Steck found the gun and fired it in order to see whether it was operable. [386 N.Y.S.2d 379] At the conclusion of this hearing the court found Officer Steck's testimony to be credible and denied the motion to suppress. Subsequently De Bour pleaded guilty to felonious attempted possession of a weapon and was sentenced to a conditional discharge. The Appellate Division unanimously affirmed, without opinion.

Prior to reaching the merits we must consider the People's contention that defendant has failed to preserve the issue of the legality of the officers' initial encounter and questioning of defendant. We find no merit to their position and consider People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 inapposite. That case dealt solely with the failure to object to the charge and the requirement that for purposes of review such an objection must be registered at a time when the court is in a position to rectify the alleged error (CPL 470.05, subd. 2). However, when the defendant moves to suppress evidence and specifically challenges the authority of the police to accost the defendant as well as the subsequent search we believe that the issue has been preserved. Nor is review of this case barred by the holding in People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 919 where we held that an issue will not be preserved if the defendant fails to raise it at a time when the People would have an evidentiary opportunity to counter his assertion. In contrast, here the defendant's suppression papers asserted, Inter alia, that the initial restraint by the police was effected without consent, warrant, court order, or other lawful authorization. Neither can it be said that defense counsel did not pursue this point in view of the effort on cross-examination of the prosecution's only witnes Officer Steck, to ascertain the precise reason he and his partner decided to approach the defendant. The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve (see, e.g., People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539; Dewey v. Des Moines, 173 U.S. 193, 198, 19 S.Ct. 379, 43 L.Ed. 665).

Turning to the merits, we must consider first the legality of the initial encounter and then the subsequent intrusion into De Bour's jacket. The appellant contends that when the two uniformed patrolmen confronted De Bour and 'caused him to stand still' he was seized within the meaning of the Fourth Amendment. Defendant reasons that he was deprived of his freedom of movement by the obvious show of authority and the equally obvious display of force by virtue of his being outnumbered by armed officers. Relying on People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 appellant urges that a police initiated street encounter with a citizen amounts to a seizure which is unconstitutional unless supported by at least a founded suspicion predicated on specific articulable facts that criminal activity is afoot. The People counterargue that the stop here was conducted in accordance with the principles enunciated in People v. Cantor (supra). They contend that De Bour's crossing the street to avoid the officers in an area where there was a high incidence of narcotics crimes triggered a duty to ascertain whether there was any criminal activity afoot. Both parties misconstrue the holding in Cantor.

As noted in Cantor whether or not a particular search or seizure is to be considered reasonable requires a weighing of the government's interest against the encroachment involved with respect to an individual's right to privacy and personal security (at p. 111, 365 N.Y.S.2d at p. 514, 324 N.E.2d at p. 876). Thus, we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible.

Considering the justification at its inception, we first address the People's interpretation of the Cantor opinion. Their argument that the patrolmen were authorized to ascertain whether there was any [386 N.Y.S.2d 380] criminal activity is a sheer bootstrap. Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present (People v. Cantor, supra; People v. Rosemond, 26 N.Y.2d 101, 308 N.Y.S.2d 836, 257 N.E.2d 23). The police may not justify a stop by a subsequently acquired suspicion resulting from the stop. This reasoning is the same which refuses to validate a search by what it produces (e.g., People v. Scott D., 34 N.Y.2d 483, 490, 358 N.Y.S.2d 403, 409, 315 N.E.2d 466, 470). To validate this stop under the common-law power to inquire, we must examine the knowledge possessed at that moment and any reasonable inferences. Although this analysis involves a less stringent degree of belief than probable cause, it should be approached in the same manner so as to permit the use of familiar signposts as points of reference.

We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause (People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818; People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188; People v. Russell, 34 N.Y.2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732; People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526). It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand. (Compare People v. Martinez, 37 N.Y.2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162, and People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891, with People v. Singleteary, 35 N.Y.2d 528, 364 N.Y.S.2d 435, 324 N.E.2d 103, and People v. Green, 35 N.Y.2d 193, 360 N.Y.S.2d 243, 318 N.E.2d 464.) Here, we agree with the appellant that this encounter was supported by less than reasonable suspicion and consequently would not justify a stop involving actual or constructive restraint.

We turn now to the appellant's interpretation of Cantor (supra). Contrary to the appellant's assertions, Cantor should not be read as a blanket prohibition of...

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