People v. Sobotker

• Decision Date: 14 February 1978
• Citation: 43 N.Y.2d 559,373 N.E.2d 1218,402 N.Y.S.2d 993
• Parties: , 373 N.E.2d 1218 The PEOPLE of the State of New York, Respondent, v. Robert K. SOBOTKER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 993

402 N.Y.S.2d 993

43 N.Y.2d 559, 373 N.E.2d 1218

The PEOPLE of the State of New York, Respondent, v. Robert K. SOBOTKER, Appellant.

Court of Appeals of New York.

Feb. 14, 1978.

Michael M. Premisler, New York City, for appellant.

Denis Dillon, Dist. Atty. (Martin I. Saperstein and William C. Donnino, Mineola, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

The controlling issue on this appeal is whether the investigative stop of an automobile operated by the defendant violated constitutional strictures against unreasonable searches and seizures (N.Y.Const. art. 1, § 12; U.S.Const. 4th Amdt.).

After a trial by jury, the defendant was found guilty of the crime of possession of a weapon, as a felony (Penal Law, § 265.05). This followed the earlier denial of a motion to suppress the weapon, a gun, along with a clip containing five bullets, seized on the same occasion. The Appellate Division affirmed the judgment of conviction, Mr. Justice J. Irwin Shapiro dissenting. For the reasons which follow, we hold that the weapon and clip (including, of course, its contents) should have been suppressed and that, therefore, the judgment must be reversed.

The salient facts are not disputed. On the evening of April 26, 1974, two Nassau County policemen, dressed in plainclothes and seated in an unmarked car, positioned themselves in a well-traveled, well-lit shopping and entertainment area in Wantagh, Long Island; several burglaries had recently been reported in the vicinity. While stationed as described, the officers observed a Buick automobile proceeding slowly towards the next intersection, where a stop sign was located. On the way to the corner, at a point when the Buick was opposite a bar known as "J.T.'s", it slowed down from its speed of about five miles per hour to pause for a "second or two" during which the three men who were its occupants were seen to turn their heads in the bar's direction. Continuing on, the automobile then came to a standstill at the stop sign, where, the police testified, the three men "glanced" toward a second bar. Thereupon, the police, activating their official siren and lights, forced the motor vehicle to pull over and stop at the curb.

The defendant, who was the driver of the car, stepped out, walked toward the police officers and, in response to their request that he produce his driver's license, informed them that he possessed none. Also, although later verification proved that the automobile belonged to the mother-in-law of one of the two passengers and apparently was being used with her permission, the motor vehicle registration was not in their possession. The passengers were then directed out of the car and an ensuing "pat-down" of one of them resulted in the discovery of the five bullets in a clothes pocket that the police later described as exhibiting an undefined "bulge". Contemporaneous search of the car itself revealed a gun under the front seat. ^*

It is conceded that, had the stop of the car which preceded the search not occurred, the possession of the gun and the clip would not have been discovered. The conclusion that the stop was an impermissible intrusion is compelled by People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 where, in considerable detail, we clarified the circumstances under which police officers may stop a motor vehicle on a public highway. We there stressed the fact that such a stop is justified only when conducted pursuant to "nonarbitrary, nondiscriminatory, uniform" highway traffic procedures, or when there is specific cause or, at least, reasonable suspicion that a motorist is about to violate a law. As to the latter, we quoted the Supreme Court's concordant language in which it spelled out that the cause must be one "based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant (the) intrusion' (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889)" (id., p. 420, 369 N.Y.S.2d p. 74, 330 N.E.2d p. 44).

The stop in the present case is to be distinguished from the exercise of the common-law right of inquiry of a pedestrian discussed in the majority opinion in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562. For the "common-law power to inquire does not include the right to unlawfully seize" (People v. Cantor, 36 N.Y.2d 106, 114, 365 N.Y.S.2d 509, 517, 324 N.E.2d 872, 878; see, also, People v. Earl, 40 N.Y.2d 941, 390 N.Y.S.2d 412, 358 N.E.2d 1037, revg. on dissenting opn. of Mr. Justice Shapiro at 50 A.D.2d 289, 290-294, 377 N.Y.S.2d 649, 650-654, cert. den. 431 U.S. 943, 97 S.Ct. 2663, 53 L.Ed.2d 263). Thus, except for routine checks to enforce automobile regulations (which neither side contends was the case here), our repeated decisions make abundantly clear that, absent at least a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law, the stopping of an automobile by the police constitutes an impermissible seizure (People v. Ingle, supra, 36 N.Y.2d p. 418, 369 N.Y.S.2d p. 72, 330 N.E.2d p. 42; see, also, People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891; People v. Martinez, 37 N.Y.2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162; People v. Simone, 39 N.Y.2d 818, 385 N.Y.S.2d 765, 351 N.E.2d 432; cf. CPL 140.50).

In particular, "reasonable suspicion" has been aptly defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand" (People v. Cantor, supra, 36 N.Y.2d pp. 112-113, 365 N.Y.S.2d p. 516, 324...