People v. Benjamin
| Decision Date | 18 November 1980 |
| Parties | , 414 N.E.2d 645 The PEOPLE of the State of New York, Appellant, v. Harold BENJAMIN, Also Known as Harold Miley, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
We are once again concerned with the circumstances which must exist before a police officer can conduct a limited pat-down search of a citizen during a street encounter. The Appellate Division, 71 A.D.2d 857, 419 N.Y.S.2d 184, held that a loaded handgun was unlawfully seized and should be suppressed. We reverse.
On the evening of October 27, 1977, William Loran, a veteran police officer, was on motor patrol in the Borough of Queens when he received a radio run advising him that there were men with guns at a specified street location. He and his partner, both wearing plainclothes, arrived on the scene and left their unmarked car so that they could walk along the sidewalk. Approximately 30 people were gathered on the street. As they approached within 10 feet, the defendant, who was standing on the sidewalk, stepped backwards toward the curb while simultaneously reaching beneath his jacket with both hands to the rear of his waistband. Immediately, Officer Loran ordered the defendant to keep his hands in view, and conducted a limited pat-down search which produced the loaded weapon. At the suppression hearing Officer Loran said that his action was precipitated by the fear that "possibly (the defendant) had a gun secreted."
Defendant moved to suppress the weapon on the ground that the frisk was conducted in violation of his constitutional right to be free from unreasonable searches and seizures. Officer Loran testified fully at the hearing as to the circumstances of the arrest, but there was no explanation in any detail of the source of the radio report which first alerted the police to the presence of the men with guns. The motion was denied and defendant pleaded guilty to criminal possession of a weapon in the third degree (Penal Law, § 265.02). With two Justices dissenting, the Appellate Division reversed on the ground that the evidence should have been suppressed. The People now appeal.
At the outset we reaffirm that a stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; CPL 140.50, subd. 1; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872). We also note that an anonymous tip of "men with guns", standing alone, does not justify intrusive police action, and certainly does not rise to the level of reasonable suspicion warranting a stop and frisk (People v. De Bour, supra, 40 N.Y.2d 224, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Bronk, 66 Misc.2d 932, 323 N.Y.S.2d 134, affd. 31 N.Y.2d 995, 341 N.Y.S.2d 450, 293 N.E.2d 826). Therefore, immediately after the radio call, Officer Loran had at most only the common-law right to inquire, but no right or justification to subject any person at the scene to a search (People v. Stewart, 41 N.Y.2d 65, 390 N.Y.S.2d 870, 359 N.E.2d 379). However-and this bears emphasis-nothing said thus far should be taken to indicate that a police officer is prevented from observing circumstances at the scene and, if necessary, taking due precaution for his own safety (People v. Stroller, 42 N.Y.2d 1052, 399 N.Y.S.2d 207, 369 N.E.2d 763, People v. Stewart, supra).
A police officer is entitled, and in fact is duty bound, to take action on a radio call. However, if a defendant later raises a legal challenge as to the permissible extent of such action, the People must take the initiative to show that in view of all the circumstances the action taken was justified (People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294). This can be done by sufficient explanation of the source of...
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...of steel before he can act to protect his safety.'" State v. Cobbs, 711 P.2d 900, 907 (N.M. Ct. App. 1985) (quoting People v. Benjamin, 414 N.E.2d 645, 648 (N.Y. 1980)).4 Under these circumstances, we cannot say the weapons frisk "was the product of a volatile or inventive imagination, or w......
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