People v. Chestnut

• Citation: 418 N.Y.S.2d 390,69 A.D.2d 41
• Parties: The PEOPLE of the State of New York, Respondent, v. Andre CHESTNUT, Defendant-Appellant.
• Decision Date: 10 July 1979
• Court: New York Supreme Court — Appellate Division

Page 390

418 N.Y.S.2d 390

69 A.D.2d 41

The PEOPLE of the State of New York, Respondent, v. Andre CHESTNUT, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 10, 1979.

Judith Zerden, New York City, of counsel (William E. Hellerstein, New York City, for defendant-appellant.

Richard P. Kaye, New York City, of counsel (Jerrold Tannenbaum, New York City, with him on brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

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

SULLIVAN, Justice.

At issue is the propriety of the denial of defendant's motion to suppress physical evidence, and statements made by him contemporaneously with the seizure of a gun and at the stationhouse after his arrest. Subsequent to the denial of his motion defendant entered a plea of guilty.

The following facts were adduced at the suppression hearing. On the evening of January 4, 1977, at 8:45 p. m., police officers Dieterich and Stryker, assigned to an anti-crime unit, were in plainclothes in an unmarked taxi. Stryker was the operator. Driving south on West End Ave., they observed a black male and a white male and female huddled in apparent conversation in a phone booth at the corner of 64th Street. Their suspicions aroused, the officers made a U-turn and stopped at 63rd Street from which vantage point they observed the individuals for about one minute. The black male, subsequently identified as Anthony Hernandez, left the booth and walked south to 63rd Street. As he walked away he was observed turning his head several times and looking over his shoulder. Hernandez turned east onto 63rd Street, but returned to the corner and peeked back in the direction of the phone booth.

Dieterich left the taxi and followed Hernandez for a few steps on 63rd Street, and observed him enter a playground which was part of a housing project. Dieterich then returned to the taxi and the officers drove north on West End Ave., made a right at 64th Street and drove east for a half block, stopping by the north side of the playground. Dieterich again got out of the taxi, this time to see if he could find the other male and female who had been seen earlier in the phone booth. Stryker, who had Hernandez under observation in the playground, saw him engaged in apparent conversation with the defendant Chestnut, and he observed Hernandez hand something to Chestnut. At about this time, Stryker received a radio transmission of a robbery at 64th Street and West End Ave. The perpetrator was described as a young, black male wearing a blue jacket and a black flop hat, and armed with a silver gun. Stryker called Dieterich back to the taxi and informed him of the radio report. The officers agreed that Hernandez fitted the description.

As the officers spoke they noticed Hernandez and Chestnut walking out of the playground towards the taxi. As they approached they looked at Dieterich and Stryker and then abruptly reversed direction and returned to the playground. Dieterich told Stryker to transmit an alarm that they were following a possible suspect in the robbery and then followed the pair into the playground where they were joined by a female. The trio then walked from the playground through the housing project towards Amsterdam Ave. Stryker drove around the corner to Amsterdam Ave. and exited the taxi. He attempted to contact his communications dispatcher on his portable radio, but failed to receive an acknowledgment. As he walked south along Amsterdam Ave. he observed Hernandez and Chestnut, accompanied by the female, walking out of the project in his direction. As the group approached, Stryker identified himself as a police officer, showed his shield and, with revolver drawn, shouted "Police Officer, freeze. Don't move, lay down on the ground." Hernandez and Chestnut turned and saw Dieterich behind them, and then lay down. The female stepped aside. While they were on the ground Dieterich asked "Where is the gun"? Chestnut answered "it's right here", and pointed to his right-hand pocket. Dieterich reached into the pocket and removed a silver-plated revolver. Hernandez and Chestnut were then arrested and handcuffed.

Eventually, more police arrived, together with the complaining witnesses, who identified the revolver as the weapon used in the robbery. At the police station, after Chestnut had been given his Miranda warnings, he denied participation in any robbery but admitted ownership of the gun, and claimed that he had let Hernandez hold it.

A subsequent search of Chestnut at the station uncovered three manila envelopes of marijuana and two five dollar bills, which Chestnut admitted had been given to him by Hernandez. The complainants had reported that they each had a five and a ten dollar bill taken from them. Two ten dollar bills were found on Hernandez.

At the close of the hearing, the court found that the police officers had probable cause to arrest Hernandez and that the circumstances justified a frisk of Chestnut, and that no preliminary questions were required, since one of the officers had observed Hernandez pass an object of some type to Chestnut, and the officers were aware that a robbery had taken place. We agree.

One of the most vexing of judicial issues is the delineation of permissible police intrusion upon the liberty of the private citizen in a street encounter. Judges are called upon to balance "the legitimate interests of the defendants against the reasonableness and appropriateness of the police action". (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 636, 363 N.E.2d 1380, 1381.) Immutable legal abstracts easily enunciated in an atmosphere conducive to research, reflection and deliberation are applied, less facilely, to the infinite vagaries of human activity, oft-times carried out in a cauldron of emotion. The central figure in these confrontations and whose conduct it is that we are asked to judge is the police officer, who is faced with the daily possibility that any incident might become a life or death situation, with little or no time for reflection, let alone deliberation.

Criminal Procedure Law section 140.50(3) authorizes police officers to frisk an individual, whom they have stopped for an explanation of his conduct, if they reasonably suspect that they are in danger of physical injury. To justify a "self-protective search for weapons", an officer "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.)

Whether a police officer's conduct is reasonable "must necessarily turn on the facts in each individual case" (People v. Green, 35 N.Y.2d 193, 195, 360 N.Y.S.2d 243, 244, 318 N.E.2d at 464), and is based on how justifiable his suspicions. It has been held that:

Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. (citations omitted) To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice. (citations omitted). Nor will the good faith on the part of the police be enough to validate an illegal interference with an individual. (citations omitted) (People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 516, 324 N.E.2d 872, 877.)

The Court of Appeals has identified three preliminary areas of inquiry in the resolution of whether an officer's actions were reasonable in the conduct of a frisk which leads to the seizure of a gun:

Was there proof of a describable object or of describable conduct that provides a reasonable basis for the police officer's belief that the defendant had a gun in his possession? Was the manner of the officer's approach to the defendant and the seizure of the gun from him reasonable in the circumstances? Was there evidence of probative worth that there had been a pretext stop and frisk or that the police were otherwise motivated by improper or irrelevant purpose? (People v. Prochilo, 41 N.Y.2d 759, 761-2, 395 N.Y.S.2d 635, 636, 363 N.E.2d 1380, 1381, Supra.)

We are of the view that on the facts here the answers to these questions are compellingly in the police officers' favor.

As the officers approached Hernandez and Chestnut, they were aware that a gunpoint robbery had been committed and that Hernandez matched the description of the robber. Moreover, the officers themselves had seen Hernandez involved with two individuals at the intersection where the robbery reportedly occurred, and thus the officers had valid reasons to believe that the description of the robber was confirmed by their own continuing observation of Hernandez. Under such circumstances they quite clearly had probable cause to stop and arrest Hernandez. "Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed." (People v. Oden, 36 N.Y.2d 382, 384, 368 N.Y.S.2d 508, 511, 329 N.E.2d 188, 190.)

Before the officers had reason to seize Hernandez, however, one of them had seen him pass an object to Chestnut. While it might well be that the object was innocuous, as the dissent suggests, from the perspective of the police officer, there was a likelihood that the object passed was a gun, particularly since Hernandez, the robber, was less than a block from the crime scene and would have an interest in disgorging himself of the incriminating weapon. ^* To label as "sheer speculation" the inference that it was a gun that Hernandez passed to Chestnut is to ignore the reality of the situation. Even the most naive individual would be wary when he saw a suspected armed robber pass "something" to another individual minutes after the crime had been committed.

Furthermore,...