People v. Evans

• Citation: 400 N.Y.S.2d 810,371 N.E.2d 528,43 N.Y.2d 160
• Parties: , 371 N.E.2d 528 The PEOPLE of the State of New York, Respondent, v. Allen EVANS, Appellant.
• Decision Date: 21 November 1977
• Court: New York Court of Appeals

Page 810

400 N.Y.S.2d 810

43 N.Y.2d 160, 371 N.E.2d 528

The PEOPLE of the State of New York, Respondent, v. Allen EVANS, Appellant.

Court of Appeals of New York.

Nov. 21, 1977.

Henrietta M. Wolfgang and Nathaniel A. Barrell, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty. (John J. DeFranks and Judith Blake Manzella, Buffalo, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

This case involves the elemental question of whether or not the existence of probable cause to arrest justifies a full search where the arrest was not made until one month after the search. Stated differently, the issue before us is whether a warrantless search of the defendant's person may be conducted solely on the basis of such probable cause. We hold that without a contemporaneous arrest such a warrantless search is violative of constitutional rights.

On October 4, 1974 Deputy Sheriff John Scirri was working as an undercover narcotics agent for the Erie County Sheriff's Department. At approximately 7:30 p. m. on that evening he was driving his automobile in search of his informant. When he came to the corner of Broadway and Mortimer he noticed a man later identified as the defendant. According to his testimony at trial, Officer Scirri stopped his car at the curb and asked the defendant whether he had seen the informant, "Jack the Ripper" by name. After responding in the negative, the defendant asked the policeman if he was "looking", meaning looking to buy narcotics. Officer Scirri indicated that he was interested, whereupon the defendant entered the car and asked the officer how many he wanted. Deputy Scirri countered by asking how many he had. The defendant stated that he had as many as Officer Scirri wanted. When the policeman asked for two, the defendant pulled two bags from a tinfoil containing bags of heroin. Deputy Scirri testified that he paid $30 which the defendant placed in his right pants pocket. In response to a question the defendant stated he was called "George" and alighted from the car. The entire meeting lasted approximately five minutes.

The police officer drove away and contacted his superior by radio, arranging to meet in a nearby parking lot. A few minutes later Officer Scirri met with Sergeant Guadagno and the undercover officer presented his buy which a field test established to be heroin. At this meeting Deputy Scirri discussed the purchase with Sergeant Guadagno and described "George" as a dark complected male, approximately 28 years old, who was about six-one, had a large build with a round face and a short bush hair style. He also informed the sergeant that "George" was wearing a light brown fur coat reaching below the knees with black pants and black suit underneath.

Sergeant Guadagno testified that after this meeting he proceeded in his patrol car to the vicinity of the buy in search of "George". At Broadway and Jefferson, the sergeant spotted a man who fit the general description given by Deputy Scirri. After a cursory check of the street revealed no one else fitting that description, Sergeant Guadagno slowly turned the corner and followed behind the defendant along the curb lane as he walked up Broadway toward Mortimer. When Evans reached the corner he turned completely around with his arms outstretched. At this point Sergeant Guadagno emerged from the patrol car, identified himself and ordered the defendant to put his hands on the hood of the car which he did. Sergeant Guadagno then conducted a pat down frisk. Finding no weapons, the policeman asked for identification and told the defendant to empty his pockets on the hood. The defendant had no identification but stated that his name was Linsay Evans and gave his date of birth. Sergeant Guadagno further testified that when the defendant emptied his personal possessions on the hood the "first thing to come out of his right pocket was three ten dollar bills." The sergeant completely searched the defendant at this point and found neither heroin nor the tinfoil that Officer Scirri had described. After a warrant check proved negative the defendant was permitted to continue on his way.

At trial, defense counsel objected to Sergeant Guadagno's testimony relating to the search of the defendant and the three $10 bills taken from his pocket. The Trial Judge overrul the objections stating that Sergeant Guadagno had reasonable cause to search the defendant for contraband in view of the testimony that the defendant had taken the two glassine envelopes sold to Deputy Scirri from another envelope.

In further testimony Sergeant Guadagno indicated that about one month after the street encounter Allen Evans was arrested and charged with the sale and possession of heroin. The trial culminated in the jury finding the defendant guilty of selling heroin.

Among the issues raised on appeal was the illegality of Sergeant Guadagno's search. The People argued that the search was valid as incident to arrest. The Appellate Division, by a divided court, affirmed. The majority held that the street search of the defendant was justified by the existence of probable cause to seize and search for the possession of narcotics. They believed that the postponement of the intrusion of formal arrest for a month in order to conceal the true identity of the undercover officer was a reasonable police practice which constitutionally justified the search. While we cannot and do not take issue with the laudable objective of protecting the safety of undercover agents, we cannot accept the conclusion reached below and reverse.

Recently, our court has had occasion to consider in great depth the many facets of police-citizen encounters. (E. g., People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Stewart, 41 N.Y.2d 65, 390 N.Y.S.2d 870, 359 N.E.2d 379.) In these decisions we have articulated a carefully demarcated body of law explaining the varying predicates necessary to justify police intrusions ranging from the right to arrest to the right to stop and frisk, to the common-law power to inquire, to the authority to approach and request information. The common thread throughout these opinions is that for a police intrusion to be permissible it must be predicated on constitutionally cognizable factors. In most of these cases the permissible scope of intrusion was justified substantially by the need to ensure the personal safety of the policemen involved.

Applying these principles to the case at bar, we note that, given the level of knowledge here, Sergeant Guadagno was justified in frisking the defendant when he encountered him on the street. Having reasonably assured his safety, however, it does not follow that the existence of probable cause to arrest justified a full search. We believe that at this point the defendant indefeasible right...