People v. Allen

• Citation: 109 A.D.2d 24,489 N.Y.S.2d 749
• Parties: PEOPLE of the State of New York, Respondent, v. Earl ALLEN, Defendant-Appellant.
• Decision Date: 04 June 1985
• Court: New York Supreme Court — Appellate Division

Page 749

489 N.Y.S.2d 749

109 A.D.2d 24

PEOPLE of the State of New York, Respondent, v. Earl ALLEN, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 4, 1985.

David Samel, New York City, of counsel (William E. Hellerstein, New York City), for defendant-appellant.

Roger L. Stavis, Little Neck, of counsel (Peter D. Coddington, New York City, with him on the brief, Mario Merola, New York City), for respondent.

Before MURPHY, P.J., and SANDLER, ROSS, CARRO and FEIN, JJ.

FEIN, Justice.

At the Mapp hearing, Detective Taranto testified that on February 19, 1983 he was working the 4 p.m. to 1 a.m. tour of duty. During that time he accompanied six or seven members of the Teaneck, New Jersey police department to 1368 Webster Avenue in The Bronx, to execute a fugitive warrant. The New Jersey police sought one Timothy Frazier who was believed to live in Apartment 12F in that building. Taranto had no description of Frazier, and was informed only that Frazier was wanted in connection with a burglary. Taranto had no knowledge of any claim that Frazier had been armed during the alleged burglary.

All of the officers, including Taranto, were dressed in plain clothes. Upon arriving at the building, they took the elevator to the 12th floor. When the elevator door opened, Taranto saw defendant Earl Allen standing in the hallway, facing the elevator. Taranto did not know whether Allen was the fugitive Frazier. None of the New Jersey officers indicated that he was.

At the Mapp hearing, Taranto testified that the defendant looked into the elevator, "took a half a step back and put his hand to his right side pocket. Seeing that I jumped out of the elevator and grabbed his hand. As I grabbed his hand I felt a gun in his pocket; turned him around, took the gun out of his pocket and placed him under arrest." In his testimony before the grand jury, the officer testified, "As the door opened he placed his hand by his right hand coat pocket with this. I was the first one out of the elevator. I grabbed his hand and as I grabbed his hand there was a gun in his pocket." In the investigating district attorney's report there was no mention that the officer stated that the defendant stepped back. A pouch containing two rounds of ammunition was recovered during a subsequent search of the defendant.

At least one other person was in the 12th floor hallway when the officers emerged from the elevator. One of the other officers searched him. However, he was not arrested.

In our view, when the officer grabbed defendant's hand and removed the gun, this constituted a seizure, an unreasonable intrusion. There was neither reasonable suspicion warranting a frisk, nor probable cause justifying a search and seizure. "Simply stated the proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual." (People v. Stewart, 41 N.Y.2d 65, 66, 390 N.Y.S.2d 870, 359 N.E.2d 379). People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645, relied on by the suppression justice, is plainly distinguishable. In that case two plainclothes police officers received a radio run to the effect that men with guns were at a designated location. Upon arriving at the scene, the officers observed approximately thirty people. As the officers walked through the group and while they were approximately ten feet from Benjamin, he stepped backward toward the curb and reached underneath his jacket to the rear of his trouser waistband. A limited pat down of Benjamin yielded a loaded gun. The information in the possession of the officers that men with guns were present and their observation of the defendant's behavior gave rise to a reasonable suspicion that he might be armed, warranting the limited intrusion which produced the loaded revolver.

Here, there was no such basis for grabbing defendant's hand. There was no indication that he was the fugitive, and no basis for a suspicion that he was armed. The suggestion that because this was a high crime area the police conduct was justified has no basis. It may well be that the defendant's reaction was premised upon seeing seven or eight men dressed in plain clothes simultaneously emerging from an elevator which caused him to step back, if indeed he did step back. If there was fear, it may well have been fear on his part.

It is notable that he was not the fugitive, nor was the other person who was on the floor and who was likewise searched. The fact that the police officers were executing a fugitive warrant provided no justification for searching everyone in their path, including defendant. Although the suppression justice accepted the officer's Mapp hearing testimony that the defendant stepped back upon observing the officers, it is to be noted that Taranto gave no such testimony before the grand jury and did not so advise the investigating district attorney.

The problem we face is not uncommon. We are examining the behavior of an individual waiting to enter an elevator in an apartment house who observes seven or eight persons attempting to leave the elevator at the same time. What is he to do? Stand still, move or what? The issue is exacerbated when it is realized that the incident here involved took place at 12:30 a.m. What could be more normal, customary and proper than for the individual to step back to make way and perhaps to reach for his pocket for whatever purpose?

The dissent tells us that because an experienced police officer concluded that such a normal reaction indicated that the defendant was armed, it was lawful for the officer to grab defendant's arm, plainly a seizure. If this be so, it should teach all of us to stand stock still and make no movement when we, waiting for an elevator, are confronted with a similar situation. It may well be that standing stock still is an unusual response, which an experienced police officer may regard as suspicious.

We deal here not only with the rights of this defendant, but all of our rights.

As stated in Terry v. Ohio the seminal case on the subject, 392 U.S. 1 at p. 12-13, 88 S.Ct. 1868 at p. 1875, 20 L.Ed.2d 889:

"For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391-393 (1914). Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere 'form of words.' Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function--'the imperative of judicial integrity.' Elkins v. United States, 364 U.S. 206, 222 (1960)."

As further stated in Terry at p. 16, 88 S.Ct. at p. 1877:

"Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden 'seized' Terry and whether and when he conducted a 'search.' There is some suggestion in the use of such terms as 'stop' and 'frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a 'search' or 'seizure' within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime--'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search.' Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a 'petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly."

The Terry court further concluded that when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen, a seizure has occurred. We are required to evaluate the reasonableness of each search or seizure in the light of the particular circumstance. In other words, "it is imperative that the facts be judged against an objective standard." (Terry, supra, at p. 21, 88 S.Ct. at p. 1880).

The dissent suggests that we are concerned with the experience of the officer and his good faith. The standard laid down in Terry, supra, at p. 21-22, 88 S.Ct. at p. 1880, is otherwise. The question posed is whether "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? (cf. Carroll v. United States, 267 U.S. 132 Beck v. Ohio, 379 U.S. 89, 96-97 )."

Speaking to the issue of good faith relied on in the dissent, Terry states, at p. 22, 88 S.Ct. at p. 1880, supra:

"Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). ...