People v. Bruce

• Decision Date: 23 December 1980
• Citation: 78 A.D.2d 169,434 N.Y.S.2d 338
• Parties: The PEOPLE of the State of New York, Respondent, v. Lester BRUCE a/k/a John Benn, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 338

434 N.Y.S.2d 338

78 A.D.2d 169

The PEOPLE of the State of New York, Respondent, v. Lester BRUCE a/k/a John Benn, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 23, 1980.

Ursula Bentele, New York City, attorney for the defendant-appellant.

Margaret G. Sokolov, New York City, of counsel (Mark Dwyer, Asst. Dist. Atty., with her on the brief; Robert M. Morgenthau, Dist. Atty.) for the respondent.

Before BIRNS, J. P., and SANDLER, SULLIVAN, MARKEWICH and SILVERMAN, JJ.

SULLIVAN, Justice.

At about 3:30 p. m. on the afternoon of August 2, 1977, four uniformed police officers assigned to the 28th Precinct Special Narcotics Enforcement Unit were notified that the precinct telephone switchboard operator had just received a report of two men with guns and narcotics in front of 112-115 West 113th Street. The caller, who was not identified, had described one man as wearing a striped dashiki, the other an orange-colored shirt.

Within three minutes the officers drove to 113th Street and St. Nicholas Avenue where a tall, neatly dressed, middle-aged male with short grayish hair approached the patrol car and advised the officers that it was he who had just called the 28th Precinct. Pointing west and urging the officers to hurry, the informant told the officers that the two men were headed in the direction of Seventh Avenue. Again, he described one man as wearing an orange shirt, the other a dashiki-type striped shirt worn outside the trousers. One of the officers, Jirak, believed that the informant described the stripes as red and white. When specifically asked, the informant said that both men, whom he described as a stick-up team, had guns. None of the officers knew the informant, whose name and address were not sought.

The officers drove west on 113th Street to Seventh Avenue and then north on Seventh Avenue to 114th Street. Failing to see anyone who fit the description of the two men, they made a U-turn at 114th Street and drove south on Seventh Avenue. Just south of the southwest corner of 112th Street and Seventh Avenue the officers observed two men, one wearing an orange-colored shirt, the other a loose fitting red-and-white striped shirt which hung below his waist, walking together toward the corner of 112th Street and Seventh Avenue.

When it became apparent that the two men were about to cross Seventh Avenue, the officers decided to drive south another block, make a U-turn and come back up Seventh Avenue, since a large group of people were congregated on the southwest corner of Seventh Avenue and 112th Street. As the patrol car made a U-turn at 111th Street, the two men, whom the officers had kept in view, crossed Seventh Avenue to a point just south of the southeast corner of 112th Street and Seventh Avenue.

As the patrol car approached, the two men looked in its direction, and, according to Officer Jirak, "their movements became hesitating." The two men separated. The man wearing the loose fitting red-and-white striped shirt walked towards the building line and then south, while the other stood near the corner.

Commanding, "Don't move! Police", all four officers exited the patrol car with their guns drawn. Two of the officers covered the man in the orange shirt and the other two approached the man in the striped shirt, later identified as Lester Bruce, the defendant. The officer nearest defendant ordered him to put his hands in the air and to turn around slowly. As defendant began to comply, the officer put his hand on defendant's back and felt the handle of a gun near his waistline. The officer removed the gun, a .22 calibre revolver with five live rounds and one spent shell. As the gun was being removed, defendant remarked "Don't get nervous, it's only a gun." Defendant was then arrested.

Meanwhile, the other two officers had placed the man in the orange shirt against a car. As they were doing so they heard one of the officers in the vicinity of defendant yell over, "Watch out, my guy has a gun." Officer Jirak then proceeded to frisk the suspect and felt a hard object inside a folded newspaper in his right rear pants pocket. Officer Jirak removed the newspaper and found a .25 calibre automatic revolver with three live rounds in the clip.

Alleging a violation of his Fourth Amendment rights, defendant contends that the police officers, acting on the basis of information of vague and unknown reliability, the sole source of which was an anonymous tip, seized and searched him at gunpoint, without any prior inquiry and in the absence of exigent circumstances.

The suppression court found that, based on the report which they had received from the switchboard operator and the information provided by the informant, the officers had reasonable suspicion to stop defendant and his companion and that the limited intrusion which produced the revolver was justified. We agree.

Reasonableness is the touchstone by which police conduct is measured under the Fourth Amendment. (Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706; People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380.) "Whether ... 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. Thus, we must consider first whether ... the police action was justified in its inception and secondly whether ... that action was reasonably related in scope to the circumstances which rendered its initiation permissible." (People v. DeBour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562.) What is required is a balancing of two societal interests, law enforcement on the one hand and individual privacy and personal inviolability on the other. (See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.)

Police officers acting on less than probable cause have the right to confront citizens for investigative purposes as long as the encounter is preceded by activity which gives rise to an "articulable suspicion" that criminal activity has occurred. (Terry v. Ohio, 392 U.S. 1, 31, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889 (Harlan, J., concurring).) While a telephone call from an anonymous source furnishing a general description and location of a "man with a gun" will justify a belief that criminal activity is afoot (People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. DeBour, supra ), it does not, by itself, constitute reasonable suspicion to stop and frisk anyone who happens to fit that description (People v. LaPene, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; CPL § 140.50). Such a predicate triggers only the police officer's common law right to detain to the extent necessary to obtain explanatory information. (People v. DeBour, supra, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Cantor, supra, 36 N.Y.2d at 114, 365 N.Y.S.2d 509, 324 N.E.2d 872.) But a radioed tip may support a reasonable suspicion justifying more intrusive police action, when considered in conjunction with other supportive factors, including those rapidly developing or observed at the scene. (People v. Benjamin, 50 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645, dec. Nov. 18, 1980.) Before an officer "places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." (Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917; People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379; see, also, People v. Sterling, 63 A.D.2d 210, 406 N.Y.S.2d 478.)

In assessing the reasonableness of police conduct in citizen street encounters, the Court of Appeals has stated that: "(T)he proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether ... that predicate justified the extent of the official intrusion on the individual. Thus, the predicate established defines the scope of permissible police conduct." (People v. Stewart, 41 N.Y.2d supra at 66, 390 N.Y.S.2d 870, 359 N.E.2d 379.)

Based on their assessment of the citizen informant's credibility, their confirmation of the description of the two men and the location where they could be found, and the reaction of defendant and his companion to their approach, the officers had sufficient knowledge to support a reasonable suspicion...