People v. Alba

• Citation: 440 N.Y.S.2d 230,81 A.D.2d 345
• Parties: The PEOPLE of the State of New York, Plaintiff-Appellant, v. Vicente ALBA, Defendant-Respondent.
• Decision Date: 25 June 1981
• Court: New York Supreme Court Appellate Division

Page 230

440 N.Y.S.2d 230

81 A.D.2d 345

The PEOPLE of the State of New York, Plaintiff-Appellant, v. Vicente ALBA, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 25, 1981.

Alan D. Marrus, Asst. Dist. Atty., of counsel (Mario Merola, Dist. Atty.), for plaintiff-appellant.

William M. Kunstler, New York City, for defendant-respondent.

Richard Emery and Steven R. Shapiro, New York City, for New York Civil Liberties Union, Association of Legal Aid Attorneys of the City of New York, Legal Services Staff Association of New York City, The National Lawyers Guild of New York City, The Puerto Rican Legal Defense and Education Fund, Inc., as amici curiae.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, MARKEWICH and LUPIANO, JJ.

MARKEWICH, Justice.

This case involves the propriety of an order, 104 Misc.2d 1095, 430 N.Y.S.2d 923, made after a hearing, suppressing a handgun found on defendant's person in a courthouse. All testimony came from People's witnesses; defendant-respondent presented none.

On a Sunday evening in March, 1978 defendant, accompanied by four persons, entered the arraignment part of Bronx Criminal Court, about one hour before closing time, carrying a large attache case, and sat in the last row, apart from his companions. In the three years that the courthouse had been open, there had been several bomb threats phoned in anonymously and, in consequence, a large sign had been placed at the building's outer door, with similar signs at courtroom doors, which warned that all persons entering would be subject to search. The desk inside the main door not being manned on weekends, the duty of implementation of the warning devolved upon courtroom personnel.

Defendant was known by sight to the two court officers and to the Assistant District Attorney on duty, and they promptly conferred to share their knowledge, some derived from newspapers, some from observation. They believed him to be an activist demonstrator, with apparent great influence over other demonstrators, particularly in behalf of Puerto Rican independence as a member of a notorious terrorist organization, FALN, who also had been involved in a case concerned with an arms cache. They decided that it would be appropriate in the circumstances to ascertain whether there was anything in defendant's attache case which might constitute a danger to the three score or so people in the room.

Rather than risk a confrontation before the people in the courtroom, they arranged a recess and followed defendant and his companions into the corridor. One of the officers approached defendant and requested: "Please step into the clerk's office. I want to search your bag." In a loud voice, defendant replied, "No. You're not." The officer insisted, and defendant said, "No you can't search my bag if I am not under arrest. Am I under arrest?" The officer told him he was not, whereupon defendant repeated his refusal to have the bag examined. Things became more acrimonious, and the officer then stated, "All right, then you are under arrest." As the officer explained in his testimony, he had no intention whatever of arresting defendant but wished to defuse the building tension in the corridor and move the confrontation into the clerk's office. The officer then reached for the bag; defendant attempted to pass it out of reach of the officer to one of his friends but it was then intercepted by the other officer, ¹ and the participants moved into the clerk's office.

Defendant and his friends were instructed to put their hands on the counter; defendant, despite this instruction, moved his hands to his midsection and, triggered by this, the officer repeated his instruction and, as he explained in his testimony, fearing he might be shot while examining the bag, patted defendant down. See CPL 140.50. He found a loaded handgun inside defendant's clothing. It was given to the clerk, who inquired, "Why are you bringing something like this here?" Defendant replied: "What's the matter? FALN can't come into court any more."

It is defendant's theory, adopted by the suppression court, that defendant was placed under arrest in the corridor without probable cause, after he had refused to submit to an unlawful search, that the arrest was a pretext to permit a search incident thereto, and that the gun, "fruit of a poisoned tree," must be suppressed. We do not agree. There is no quarrel here concerning the state of the record which was certified by stipulation: the transcript presents the facts as seen by one set of witnesses, and there is no argument that the presentation by them is other than accurate. Our only difference is as to the meaning to be adduced from these facts. In re-examining them, we therefore do not invade the province of the sole trier of the fact as to credibility judgments because there were none to be made. But we do not adopt all of the court's findings and conclusions, i.e., the ultimate meaning of the facts and the legal consequences flowing therefrom. Accordingly, we affirm only those findings and conclusions which are consonant with what is here written, and we deem substituted appropriate findings and conclusions therefor.

Lawyers have a predilection to give a dictionary meaning to words. Because the word "arrest" was employed both by defendant and the court officers conducting an inquiry, it is apparently the view of our dissenters, agreeing with the suppression court, that the brief detainer of defendant was actually an arrest, i.e., a seizure by force of defendant and a complete restrainer of his activity. Not so. Dictionary meanings apply to a written document or an oral statement not accompanied by inconsistent conduct. Believing with the great Holmes that "a word is the skin of a living thought," we examine the accompanying conduct. The officer's statement "All right, then you're under arrest." was no more than an expedient effort to terminate the corridor scene, to defuse the heightening tension, and to move the confrontation away from the crowd into the comparative quiet of the clerk's office. None of the indicia of an actual arrest was present. Defendant was not restrained by handcuffs or otherwise. Far from that, when his condition for examination was met by the officer's pronouncement of the magic word "arrest", he did not comply but launched into his version of a child's game usually played, not with an attache case, but with a ball. Nor was the case then opened, but all moved into the clerk's office, and no restraint was there exercised except that hands be kept in view on the counter. Nor did anything further happen until defendant made the alarming gesture toward his waist.

There was no occasion for an arrest; it was not called for by anything that happened up to then. But there was probable cause for an inquiry into what defendant had in the bag, and it was the duty of the Court officers in the exigent circumstances, reasonably believing what they did believe, to pursue an inquiry and to detain defendant therefor. Cf. U.S. v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537. All of the surrounding circumstances entered into their decision. See People v. McRay, 51 N.Y.2d 594, 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015; People v. Rosemond, 26 N.Y.2d 101, 105, 308 N.Y.S.2d 836, 257 N.E.2d 23.

On the basis of their information at the moment, the two court officers took counsel with each other and with a public legal officer and decided on a reasonable basis that there was a serious risk that a known member of a group, which had been consistently described as terrorist, was in a courtroom when a skeleton force was on hand, amongst some sixty spectators, carrying an attache case containing some unknown object, that this person had entered a court building and a courtroom past two signs warning of possibility of search, and therefore that, in the interest of public safety, it was necessary to inquire further lest there be damage or injury or both. This summation of available information cannot be brushed away by expressions like "gossamer." Since probable cause to do anything at all is a matter of the mind, these reasons to inquire further, considering the person central to the episode, were as real as the "profile" spoken of in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. The picture in the officers' minds was a profile of defendant. And therefore there was a reason for further inquiry.

It was necessary to know at least whether the case that defendant carried contained anything lethal. At that moment, surrounded by a number of people, mostly unknown, in a courtroom corridor, the less fuss made, the better. The officers were not seeking a public scene, but trying to make an inquiry with a single purpose, to ascertain if danger lurked in the bag. They were trying to do it quietly and without arousing animosity. They knew that the danger was exigent, immediate, without time for the niceties of a warrant. They knew that in the charged atmosphere anything might happen, to the extent of riot. They believed, not without reason, that defendant, having passed two warning signs and continuing into the courtroom, had impliedly consented to have his case examined and, seeking to remove the center of difficulty into a quiet spot, they asked defendant to step into the clerk's office to have his bag examined. They were painstakingly polite and minimally intrusive.

It is well to pause here and consider the effect of the warning signs. In terms of practical effect they are not functionally different from those in an airport warning of the search there required, and both sorts of warnings are posted for the same obvious reason.

It is argued that the officers' conduct was unreasonable in that defendant was given no choice to leave the building. However, he never requested that opportunity. The same argument was raised and found to be without merit in the leading airport case, People v. Kuhn, 33...