People v. Hanson
| Decision Date | 11 September 1998 |
| Citation | 683 N.Y.S.2d 386,178 Misc.2d 932 |
| Parties | , 1998 N.Y. Slip Op. 98,611 The PEOPLE of the State of New York, Plaintiff, v. Mark HANSON, Defendant. |
| Court | New York District Court |
Matthew Muraskin, Hempstead (Nancy Salem of counsel), for defendant.
Denis E. Dillon, District Attorney of Nassau County, Hempstead (Cara Patton of counsel), for plaintiff.
After the defendant's street encounter with a police officer resulting in a charge of Criminal Possession of a Weapon in the Fourth Degree--Metal Knuckles, defendant moved to suppress the weapon as having been obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Article I Section XII of the Constitution of the State of New York. After hearing, the Court denies the defendant's motion and holds that, in this case, to prevent the imminent outbreak of violence, the search of the defendant in lieu of lawful arrest does not run afoul of State and Federal constitutional guarantees.
To arrive at this holding requires traveling a long legal road with many, logically speaking, a winding turn. In this legal landscape the root case of People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), has developed dense decisional branches so thick that, in fact, some fear that the light of truth (and logic) cannot penetrate, thereby stifling the growth of justice. "Thus it is submitted that the De Bour has structured the right to inquire in a manner which will continue to pose problems of a constitutional magnitude." Kamins, New York Search and Seizure Gould Publications (1998) page 107. At least one jurist has recommended that the terrain be uprooted and leveled and sown anew. Rethinking Standards for Police Conduct, Steven W. Fisher, Supreme Court Justice, N.Y. Co., New York Law Journal Vol. 214, No. 80, 10/25/95, Pg. 1, Col. 1. "Probably no area of search and seizure law has caused more confusion and frustration then that of street encounters with police where the officer acts on less than probable cause." Kamins id. pg. 93. The situation is no less confusing or frustrating when, as here, the officer has probable cause but does not arrest based on it.
The words of the statutes in question, The Fourth Amendment of the Constitution of the United States and Article I, Section XII of the Constitution of the State of New York, are often cited but seldom recited. Yet because they create conceptional monuments of American freedom, they are deserving of deference.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Our Court of Appeals has recognized that the State and Federal Constitutions and the privacy guarantees they both embody generally support the policy of uniformity in interpretation of the two statutes. The Court of Appeals has also demonstrated its' willingness to adopt more protective standards under the state constitution when doing so best promotes the predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens. People v. Torres, 74 N.Y.2d 224, 544 N.Y.S.2d 796, 543 N.E.2d 61 (1989) citing People v. P.J. Video, 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556 (1986). The Court's holding today seeks not to wreck, but rather to reconcile, De Bour and its progeny while respecting New York's approach to search and seizure analysis.
The facts provided by the sole witness, Police Officer Masi of the Hempstead Police Department, whose testimony the court finds credible, were barely challenged.
On Monday September 15, 1997 approximately 3:47 A.M. while on routine patrol headed southbound on Henry Street in the Village of Hempstead, the Officer saw a disturbance in the street and a group of people in close proximity to the defendant and an unapprehended other. The two were engaged in an argument that looked "about to turn physical". The officer directed the crowd to disperse and it did. He directed the two would be combatants to go their separate ways and they did not. Both walked northbound on Henry Street, one on the sidewalk and one in the traveled portion of the roadway approximately 15 feet apart. The defendant hid his right hand from the police officer's sight as he walked, appearing to be hiding an object on the right side of his body in the pocket and waistband area. They traveled for approximately for 100 to 150 feet arguing back and forth. The officer turned his car around, drove up to where the defendant was and told both individuals that if they could not separate and go in opposite directions there would be trouble. The defendant and unarrested other at that point turned and walked southbound maintaining their proximity and their argument. Officer Masi, who was alone in this high crime neighborhood, called for a backup unit. After officers responded, Officer Masi stopped the two individuals. Prior to a pat down the officer asked the defendant if he had any sharp objects that would cut or prick him and the defendant replied in the negative. The officer then conducted the pat down of the defendant who was wearing thick baggy jeans. The officer observed a bulge and felt a hard object in the defendants right rear pocket in the vicinity of where the defendant had been making his furtive hand movements. The officer was unable to tell what the hard object was until he reached into the defendant right rear pocket and removed a pair of metal knuckles.
After the evidence concluded the defense argued that there was no reason to stop or frisk or arrest the defendant. Nor was there "a founded suspicion criminal activity was afoot", nor "a reason to believe there was any criminal activity taking place." The people's argument was slightly less prolix but, sadly, no less lexical. They argue that the police officer had a reason to stop, had a reason to frisk, had a founded suspicion that criminal activity was afoot, and that the police officer "has a right to be reasonably suspicious of the defendant." Additionally, the Officer had "an independent and reasonable suspicion" that defendant was armed and the contraband was obtained as a result of a "lawful search incident to arrest". The defense submitted copies of two cases in support of their position. The people submitted none, seeking instead to rely upon the wisdom and scholarship of the Court, a strategy of dubious validity in any venue.
Any legal scholar, and probably more than a few English teachers, could mount a sizeable argument that both counsels' amoebic arguments, of counsel themselves, not uncommon in the criminal courts of this State under similar circumstances, are themselves toxic byproducts of De Bour and its progeny. Insofar as inconsistent with the Court's holding, counsels' arguments are rejected. "There are no bright lines separating various types of police activity. Determining whether a seizure occurs during a street encounter between the police and a private citizen involves analysis of the 'most subtle aspects of our constitutional guarantees' ". People v. Bora, 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168 (1994), 83 N.Y.2d at pg. 535, 611 N.Y.S.2d at pg. 798, 634 N.E.2d at pg. 170, citing People v. Cantor, 36 N.Y.2d 106, 112, 365 N.Y.S.2d 509, 324 N.E.2d 872. "Bearing in mind that reasonableness is the touchstone of our inquiry into the propriety of police conduct, we must way the degree and scope of the particular intrusion 'against the precipitating and attending conditions' confronted". People v. McLaurin, 70 N.Y.2d 779, 521 N.Y.S.2d 218, 515 N.E.2d 904 (1987), 70 N.Y.2d at pg. 781, 521 N.Y.S.2d at pg. 220, 515 N.E.2d at pg. 905-906, citing People v. Harrison, 57 N.Y.2d 470, 475, 457 N.Y.S.2d 199, 443 N.E.2d 447, quoting People v. De Bour, supra; and People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958. Whether the action of the police officer was reasonable (in a citizen's street encounter) "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, 318 N.E.2d 464 (1974).
Therefore, our constitutions provide, and our courts routinely order, relief from the tyranny of terminology using reasonableness as the key. "Thus, in measuring the lawfulness of police conduct, we are called upon to strike a balance between the citizens 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, 72 L.Ed. 944)--and the degree to which the seizure is necessary to advance the public interest in the protection of crime and the apprehension of criminals." (Citations omitted). People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839 (2d Dept.1980). "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.... the greater the specific and articulable indications of criminal activity, the greater may be the officer's intrusion upon a citizen's liberty." Finlayson, supra at page 844. See also, People v. Rosario, 94 A.D.2d 329, 465 N.Y.S.2d 211 (2d Dept.1983) 94 A.D.2d at pgs. 330-331, 465 N.Y.S.2d at pg. 213. ...
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