People v. Finlayson

• Decision Date: 22 September 1980
• Citation: 431 N.Y.S.2d 839,76 A.D.2d 670
• Parties: The PEOPLE, etc., Respondent, v. Alan L. FINLAYSON and James Blades, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 839

431 N.Y.S.2d 839

76 A.D.2d 670

The PEOPLE, etc., Respondent, v. Alan L. FINLAYSON and James Blades, Appellants.

Supreme Court, Appellate Division, Second Department.

Sept. 22, 1980.

Matthew Muraskin, Mineola (Kent V. Moston, Albertson and Michael J. Obus, Mineola, of counsel), for appellants.

Denis Dillon, Dist. Atty., Mineola (Juri Toomi and Martin I. Saperstein, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before MOLLEN, P. J., and LAZER, GIBBONS and MARGETT, JJ.

MOLLEN, Presiding Justice.

These appeals present the question of when, if ever, a police officer may detain at gunpoint an individual whom he reasonably suspects of having committed a crime. Our determination necessarily depends upon a delicate balance between the individual's right to personal liberty and society's legitimate expectation that its police officers may carry out their official functions free from unreasonable risk of death or personal harm. We turn first to a review of the pertinent facts.

At approximately 9:00 P.M. on August 10, 1977, Joseph Baxter was alone at a Hess gas station on Peninsula Boulevard in Hempstead, New York. Baxter, the assistant manager of the station, was sitting at its middle island when he observed two men approaching him on foot. When the men reached him, one asked whether he fixed flat tires and he replied that he did not. Baxter's suspicions were apparently aroused by the demeanor and conduct of the men, and consequently he activated a silent alarm transmitter which he carried in his pocket. The device was designed to signal a machine in the station's sales office which would then automatically cause a telephone call to be placed to the Hempstead Police Department notifying the police through a pre-recorded taped message that a robbery was occurring at the station.

Immediately after he activated the alarm, Baxter's fears were realized. The man who had asked about the repair of the tire now announced a hold-up and demanded that Baxter surrender his money. After taking some $35, he instructed Baxter to walk to the sales office, warning him that "I have a gun. If there is (sic) any cops around I will blow your head off."

When they reached the door of the office, the man asked for additional money and searched Baxter's pockets. He discovered the transmitter, and when Baxter would not explain the nature of the device, the man repeated his threat, saying that "There had better not be any cops around or I will blow your head off." Both perpetrators then fled on foot heading southbound on Peninsula Boulevard.

Less than a minute after their departure, Police Officer Alexander Zackavich arrived on the scene in a patrol car. He had been driving alone in the area when he received a radio report of a robbery in progress at the Hess station. The officer drove into the station and observed Baxter running toward him waving his arms. Baxter, whom the officer recognized as the station's manager, urgently signaled him to proceed around the corner onto Taft Avenue which was a quarter of a block south of the station. In response to those signals and without stopping his car, Zackavich immediately drove out of the station and around the corner onto Taft Avenue.

Upon making that turn, the officer observed a vehicle, approximately 150 feet ahead, proceeding away from Peninsula Boulevard. He saw no other automobile and no pedestrians on the street. He turned on the patrol car's flashing lights and sounded its horn in an effort to stop the other vehicle, but it continued moving, turning left at the next intersection. The officer pursued, now blaring his siren in an attempt to compel the car to stop. It failed to respond, however, until it reached the next intersection where it finally came to a halt.

Officer Zackavich brought his radio car to a stop directly behind the subject vehicle. He then exited his car carrying a shotgun and approached the other vehicle on its driver's side, confronting its two occupants who were later identified as defendants Finlayson and Blades. The officer pointed the shotgun at them and ordered them to place their hands on the dashboard of the car. When the complied, he used the radio he was carrying on his belt to call for a description of the perpetrators.

By this time, Baxter had described the robbers to other officers who had arrived at the scene. The descriptions, which included the perpetrators' sex, race, height, weight, facial appearance and clothing, were transmitted to Officer Zackavich. Upon determining that the descriptions matched the occupants of the car, the officer told them that they were under arrest for the robbery at the Hess station. He advised them of their constitutional (Miranda) rights and ordered them to remain as they were while he radioed for assistance. When other police units arrived, the defendants were removed from the vehicle, frisked, handcuffed, and placed in patrol cars. Officers then discovered the proceeds of the robbery secreted under the front seat of the defendants' vehicle. No weapon was found either in the car or on the persons of the defendants. ¹

Later that evening, a lineup was conducted and Baxter identified both defendants as the perpetrators of the robbery. Subsequently, after having been advised again of his constitutional rights, defendant Finlayson confessed to the commission of the crime.

The defendants were jointly indicted for robbery in the second degree and grand larceny in the third degree. Both moved to suppress the proceeds of the crime as well as the potential identification testimony of the complainant Joseph Baxter. Defendant Finlayson also sought suppression of his statements to the police.

A hearing was held on the motions to suppress. The crux of the defendants' position was that their initial detention at gunpoint had been unlawful and that, consequently, the discovery of the proceeds in the car, the subsequent lineup identification, and Finlayson's confession were all excludable as the tainted fruit of the poisonous tree. The court rejected those arguments, holding that the stop was properly founded upon reasonable suspicion and that Zackavich's use of the shotgun for self-protection did not render his action improper. Accordingly, all suppression motions were denied. Thereafter, both defendants pleaded guilty to the charge of robbery in the second degree in full satisfaction of the indictment. They now appeal.

Our analysis begins with the observation that Officer Zackavich did not have probable cause to justify an immediate arrest when he first encountered the defendants on the street, since, at that moment, he lacked sufficient information regarding the identity of the perpetrators. The absence of probable cause, however, is not dispositive of the outcome here since probable cause is not a necessary predicate for all contact between police and the citizenry in the course of a criminal investigation. (See United States v. Mendenhall, --- U.S. ----, 100 S.Ct. 1870, 64 L.Ed.2d 497, opn. of STEWART, J., in which REHNQUIST, J., joined.) It is settled that, under appropriate conditions, an officer may briefly detain and question a suspect in a public place on information not amounting to probable cause, for, until an actual arrest occurs, the Constitution demands only that the action of the police be justified at its inception and reasonably related in scope and intensity to the circumstances surrounding the encounter. (See People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 324 N.E.2d 872; Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889; cf. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824.) In assessing such encounters, we speak of a "seizure" even where the officer does not lay hands on the suspect because we recognize that the guaranties of the Fourth Amendment are implicated whenever the police interfere in any significant way with a citizen's freedom of movement. (People v. Cantor, supra, p. 111, 365 N.Y.S.2d 509, 324 N.E.2d 872; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607.) Thus, in measuring the lawfulness of police conduct, we are called upon to strike a balance between the citizen's inestimable right to personal liberty and security-his "right to be let alone" (Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, BRANDEIS, J., dissenting)-and the degree to which the seizure is necessary to advance the public interest in the detection of crime and the apprehension of criminals. (See People v. Howard, 50 N.Y.2d 583, 430 N.Y.S.2d 578, 408 N.E.2d 908; People v. Cantor, supra, p. 111, 365 N.Y.S.2d 509, 324 N.E.2d 872; Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357.) And in weighing those interests the standard to be applied is that of reasonableness, the touchstone of the Fourth Amendment. (See People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958 (1980); People v. Lemmons, 40 N.Y.2d 505, 508, 387 N.Y.S.2d 97, 354 N.E.2d 836; Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331; Delaware v. Prouse, 440 U.S. 648, 653, 654, 99 S.Ct. 1391, 1395-1396, 59 L.Ed.2d 660; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.) For "(i)t must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." (Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669; see, also, People v. Rivera, 14 N.Y.2d 441, 447, 252 N.Y.S.2d 458, 201 N.E.2d 32, cert. den. 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568.)

The reasonableness standard contemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has, and to the information he gathers as his encounter with the citizen unfolds. (Cf. People v. De Bour, 40 N.Y.2d...