People v. Carney

• Decision Date: 15 December 1982
• Citation: 444 N.E.2d 26,457 N.Y.S.2d 776,58 N.Y.2d 51
• Parties: , 444 N.E.2d 26 The PEOPLE of the State of New York, Respondent, v. James CARNEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 776

457 N.Y.S.2d 776

58 N.Y.2d 51, 444 N.E.2d 26

The PEOPLE of the State of New York, Respondent, v. James CARNEY, Appellant.

Court of Appeals of New York.

Dec. 15, 1982.

Brian Sheppard and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Catherine M.A. McCauliff and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

A suspect may not be frisked by a police officer who has no knowledge of facts that would provide a basis for suspecting that the individual is armed or dangerous. The absence of such circumstances leads to the conclusion that the search here was unreasonable as a matter of law an therefore, the order of the Appellate Division should be reversed.

Shortly before midnight on January 4, 1974, two black men armed with a shotgun attempted to rob a liquor store, shooting the owner while doing so. Officer John Morris went to the scene, but found that other officers had already arrived and that the victim had been taken to the hospital. Officer Morris returned to his radio car and began driving back to the precinct house. Two blocks from the robbery scene, he was flagged down by a man who identified himself as a patron of an establishment named "Fat Man's Bar", located approximately one-half block from the liquor store. The man stated that he had heard about the shooting and that two black men who looked "suspicious" had just entered the Fat Man's Bar.

Officer Morris drove back to the bar, called for additional officers, and entered the establishment. The citizen who had stopped Officer Morris also entered and pointed out defendant and his companion. Without ever asking why the man believed defendant and his companion to be suspicious and without himself making any inquiry or observation of the two men, Officer Morris frisked defendant and his friend. The police officer found and removed a loaded .32 caliber revolver from defendant's waistband. The other man had no weapon. The two suspects were taken to the hospital where the liquor store owner was being treated; he stated that the men were not the ones who had attempted to rob him.

Defendant pleaded guilty to attempted felonious possession of a weapon after his motion to suppress was denied.

The seminal case in the area of stop-and-frisk is, of course, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. There, the Supreme Court upheld the validity of a stop-and-frisk when "the police officer [is] able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Id., at p. 21, 88 S.Ct. at p. 1880.) The court added: "This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." (Id., at p. 21, n. 18, 88 S.Ct. at p. 1880, n. 18.) Manifestly, the basis for determini the propriety of the pat down is the officer's personal knowledge of the circumstances, evaluated "in light of his [or her] experience" (id., at p. 30, 88 S.Ct. at p. 1884; see id., at pp. 5-7, 20, 22-23, 27, 28, 88 S.Ct. at pp. 1871-1872, 1879, 1880-1881, 1883).

This focus on the officer's personal observation and experience has been recognized in this court's analysis of stop-and-frisk situations. Thus, in People v. Benjamin, 51 N.Y.2d 267, 270-271, 434 N.Y.S.2d 144, 414 N.E.2d 645, it was noted that a mere anonymous tip of "men with guns" was insufficient to justify a pat-down, but that the observations of the experienced officer when he arrived at the scene, in conjunction with the anonymous information, were such as would justify the frisk. In People v. Klass, 55 N.Y.2d 821, 447 N.Y.S.2d 433, 432 N.E.2d 135, two officers on foot patrol were approached by an unidentified person who described a man with a gun in the hallway of an adjacent building. The officers immediate ran into the building and found Klass, who matched the description just received. Only after Klass refused to give his name or an explanation for his presence did the officers frisk him, thereby discovering a gun. Implicit in this court's affirmance was the recognition that, although initially acting on secondhand information, the officers had articulable knowledge of circumstances tending to support a reasonable suspicion that Klass was dangerous.

In the present case, the police officer had no knowledge of anything to suggest that defendant possessed a firearm or otherwise posed a threat to the officer's safety. The citizen's report that two men were suspicious, without more, does not provide adequate grounds for a frisk. Indeed, whether a person is "suspicious" is the ultimate determination that is to be reached by the officer on the basis of his or her own observations and experience. A frisk would not be justifiable if supported by only the officer's conclusory statement that the subject looked suspicious; so, too, the infirmity rising from the absence of articulable facts is compounded when the officer relies on an inexperienced lay person's conclusion that is not grounded on any objective factual elaboration.

In so holding, the court is cognizant of the holdings in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 and People v. Moore, 32 N.Y.2d 67, 343 N.Y.S.2d 107, 295 N.E.2d 780, cert. den. 414 U.S. 1011, 94 S.Ct. 376, 38 L.Ed.2d 249. Critical to the decisions both those cases was the relevant content and apparent reliability of the information received by the police. In Adams, the officer was approached by an informant personally known to him and from whom he had obtained tips previously. In addition, the information was immediately verifiable at the scene. Notably, the officer's suspicions were further aroused when the defendant rolled down his car's window, rather than opening the door as requested by the officer. Similarly, in Moore, the information that the defendant possessed a gun was apparently quite reliable, coming from a man who claimed to be her husband and who was being taken to the police station after brandishing a knife in culmination of a three-day quarrel. These cases require that, before stopping and frisking an individual, the officer must have reliable knowledge of sufficient facts to justify the frisk (see Adams v. Williams, supra; cf. People v. Green, 35 N.Y.2d 193, 360 N.Y.S.2d 243, 318 N.E.2d 464; People v. Moore, supra ). The tip here lacked any indicia of reliability and was totally subjective, nonparticularized and conclusory in content. Consequently, the circumstances "require[d] further investigation before a forcible stop of a suspect would be authorized" (Adams v. Williams, supra, 407 U.S. at p. 147, 92 S.Ct. at p. 1924).

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, and the indictment dismissed.

FUCHSBERG, Judge (concurring).

Increasing concern over unjustified police encounters with our citizenry, epitomized only last month by the argument of Kolender v. Lawson, 456 U.S. 959, 102 S.Ct. 2033, 72 L.Ed.2d 482 in the United States Supreme Court (see 32 Crim.L.Rptr. 4089), impels me, in this classic illustration of such a case, to articulate my own approach.

To this end, I first observe that, compatible with constitutional respect for each individual's right to be free from arbitrary intrusion by government, a person may not be subjected to a "stop and frisk" in the absence of at least "reasonable suspicion" of involvement in criminal activity and a concomitant reasonable apprehension of armed resistance (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Carrasquillo, 54 N.Y.2d 248, 252-253, 445 N.Y.S.2d 97, 429 N.E.2d 775; People v. Chestnut, 51 N.Y.2d 14, 21-22, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. den. 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479). Thus, the present appeal requires us to decide whether these criteria we met when New York City Police Officer John Morris, who had responded to a Harlem burglary-shooting, forced the defendant, James Carne and a second man in whose company Carney then was, to raise their hands over their heads and submit to a "frisk", or "patdown", essentially because an unnamed individual, who claimed he saw the two men enter a neighborhood bar, thought they looked "suspicious".

The frisk disclosed that Carney carried a revolver in the waistband of his trousers. Though neither he nor the revolver turned out to have any connection with the shooting, in which a shotgun rather than a revolver had been used, its discovery led to his indictment on a single count alleging unlawful possession. ¹ He thereupon moved to suppress the gun on the ground that it was the product of an unreasonable search and seizure conducted in contravention of his constitutional rights (N.Y. Const., art. I, § 12; U.S. Const., 4th, 14th Amdts.). Upon denial of his motion, Carney elected to plead guilty to attempted felonious possession of a weapon (Penal Law, § 110.00 [Penal Law, former § 265.05, subd. 2] ), following which, as authorized by CPL 710.70 (subd. 2), he was able to, and did, challenge the correctness of the suppression ruling by way of appeal from his judgment of conviction. The Appellate Division having now affirmed, without opinion (86 A.D.2d 987), the case is here pursuant to leave granted by a Judge of this court (CPL 460.20). For the reasons which follow, I believe the suppression motion should have been granted.

But, initially, as further background for my analysis, I recite whatever little more can be added concerning the circumstances of the police encounter with which we are concerned, necessarily relying for this purpose on the suppression Judge's special findings as to what the testimony had been. By these we are informed that, by the time Officer Morris arrived at the scene of the burglary, its perpetrators had made their escape, officers other than Morris...