People v. Chestnut

Decision Date08 July 1980
Citation431 N.Y.S.2d 485,409 N.E.2d 958,51 N.Y.2d 14
Parties, 409 N.E.2d 958 The PEOPLE of the State of New York, Respondent, v. Andre CHESTNUT, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

JASEN, Judge.

Our task on this appeal is limited to determining whether law enforcement officers given the facts of this case, acted reasonably in ordering defendant and a cohort to lie on the ground in order to effectuate a "stop and frisk". Resolution of this issue is determinative of whether defendant's motion to suppress was properly denied.

The relevant facts, as found by the courts below, are as follows: Police Officer John Dieterich and his partner, Officer Gary Stryker, were on anticrime patrol in the vicinity of 64th Street and West End Avenue in New York City during the evening hours of January 4, 1977. Both officers were dressed in plainclothes. While traveling southbound on West End Avenue in an unmarked taxi, the officers spied three persons, two males and one female, huddled in a phone booth at the corner of 64th Street. Their suspicions aroused, the officers turned their car in a northbound direction, and stopped at the intersection of 63rd Street, from where they observed the individuals for approximately one minute. One male, later identified as Anthony Hernandez, then left the booth and commenced walking south on West End Avenue towards 63rd Street. As he walked away, Hernandez glanced over his shoulder several times to peer back towards 64th Street. Hernandez turned east onto 63rd Street, but returned to the corner to look back in the direction of the phone booth.

Officer Dieterich exited the taxi and followed Hernandez a short distance down 63rd Street, at which time Hernandez entered a housing project schoolyard. At this point, Dieterich returned to the car and the officers drove north on West End Avenue, turned east on 64th Street, and stopped on the north side of the playground. Officer Dieterich again left the car in an attempt to find the persons he and Officer Stryker had seen earlier with Hernandez in the phone booth. Stryker, who continued to keep Hernandez under observation, saw Hernandez engaged in an apparent conversation with another young male, the defendant herein, and further observed "Hernandez hand something to (defendant)." At this time, Stryker received a radio message that a robbery had just occurred at the intersection of 64th Street and West End Avenue. The perpetrator was described as "a young male, black, wearing a blue type ski jacket, and black * * * flop hat" and it was also stated that the perpetrator was "armed with a silver gun."

Officer Stryker then called Dieterich back to the taxi and informed him as to the contents of the radio call. The officers agreed that Hernandez fit the broadcast description.

Hernandez and defendant then began walking out of the playground towards the parked taxi. Upon approaching the automobile and seeing the officers, the two men abruptly reversed direction and returned to the playground, where they were joined by a female. Officer Dieterich told Stryker to transmit an alarm over the air that they were following a possible suspect in the robbery and, then, Dieterich set out on foot to follow the trio who were walking through the housing project towards Amsterdam Avenue. Stryker swung the taxi down Amsterdam Avenue to intercept Hernandez and defendant. He attempted to contact his communications dispatcher on the portable radio, but no acknowledgment was received.

Stryker parked the taxi and began walking south along Amsterdam Avenue. As the trio approached, Stryker identified himself as a police officer, showed his shield, drew his revolver, and shouted, "Police Officer, freeze. Don't move, lay face down on the ground." The group did not comply with the request immediately, but, upon turning around and seeing Officer Dieterich approach, both Hernandez and defendant did as ordered, the female stepping aside. While the two men were on the ground, Dieterich, without touching either man, inquired, "Where is the gun?" Defendant responded, "it's right here", and pointed to his right-hand pocket. Dieterich removed a silver-plated revolver, and both men were handcuffed and arrested.

A short time later, more police officers arrived, accompanied by the complaining witnesses who identified the revolver as the same weapon used in the robbery. Hernandez and defendant were transported to the police precinct, where they were informed of their constitutional rights. Defendant denied any participation in the robbery, but admitted ownership of the revolver. Defendant explained that he allowed Hernandez "to hold it".

A search of defendant at the station house revealed three manila envelopes containing marihuana and two $5 bills, which defendant stated were given to him by Hernandez. Two $10 bills were also found on Hernandez. According to the two robbery victims, they each had been robbed of one $5 and one $10 bill.

Upon these facts, Supreme Court denied defendant's motion to suppress the physical evidence (the revolver and money) and the statements made by defendant at the time the gun was seized and, later, at the station house after his arrest. The court was of the view that the police officers had probable cause to arrest Hernandez and that the surrounding circumstances justified a stop and frisk of defendant. Further, the court found that defendant's statement, "it's right here", made in response to Officer Dieterich's question as to the location of the gun, was not the product of custodial interrogation.

After his suppression motion was denied, defendant pleaded guilty to one count of criminal possession of a weapon in the third degree (Penal Law, § 265.02) in full satisfaction of the indictment 1 and was sentenced to five years probation. On appeal, the Appellate Division, 69 A.D.2d 41, 418 N.Y.S.2d 390, one Justice dissenting, affirmed, ruling that defendant's motion to suppress evidence was properly denied. Leave to appeal to this court was granted by the dissenting Justice below. We now affirm.

Defendant urges, as his sole ground for reversal, that his right to be free from unreasonable searches and seizures, guaranteed by both the Federal and State Constitutions (U.S.Const., 4th Amdt.; N.Y.Const., art. I, § 12) was violated by the actions of Officers Dieterich and Stryker. Defendant contends that inasmuch as the seized revolver and his inculpatory statements were products of unlawful police action, they must be suppressed. We disagree.

Street encounters between private citizens and law enforcement officers are inherently troublesome. This is so because two competing, yet equally compelling, considerations inevitably clash, to wit: the indisputable right of persons to be free from arbitrary interference by law enforcement officers and the nondelegable duty placed squarely on the shoulders of law enforcement officers to make the streets reasonably safe for us all. While in an ideal society the two might never clash, a quick glance through our newspapers reveals that our society is far from perfect. Thus, the judiciary is put to the task of balancing these competing considerations, so that they can reasonably coexist.

Defendant stresses that the balance has been struck in his favor, and cites the Supreme Court's recent opinion in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 as authority for this contention. In Dunaway, the Supreme Court held that a seizure which was tantamount to an arrest, whether formal or de facto, is reasonable only if supported by probable cause. 2 (Id at pp. 208-216, 99 S.Ct. at pp. 2254-2258.) Defendant argues that since the police officers did not have probable cause to arrest him, an assertion with which we have no quarrel, 3 his seizure must be labeled unreasonable, thus barring the "fruits" of the seizure from evidence. While defendant's logic may have superficial appeal, this appeal arises due to its simplicity, rather than a sound application of constitutional principles.

We refuse to accept defendant's characterization of the police activity with respect to him as an arrest, but, rather, find it analogous to the classic "stop and frisk" procedure. 4 In so finding, we recognize that the concept of arrest should not be artificially limited by traditional notions so as to circumvent the probable cause requirement inherent in the constitutional proscription against unreasonable searches and seizures. (See Brinegar v. United States, 338 U.S. 160, 70 S.Ct. 31, 94 L.Ed. 513.) Indeed, when the intrusion involved is of sufficient magnitude, an "arrest" will be said to occur, whether or not the person is eventually transported to the police station and charged with a crime. However, it is equally as clear that not every seizure constitutes an arrest. (See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Thus, even though it is concluded that a person is seized, this does not mean that the law enforcement officer's actions must be measured, in all instances, against the probable cause standard.

Although it is difficult to delineate, in abstract principles, the degree of intrusion which elevates a seizure into an arrest, we believe that the actions of Officers Dieterich and Stryker did not...

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