People v. Hicks

Decision Date04 April 1986
Citation116 A.D.2d 150,500 N.Y.S.2d 449
PartiesPEOPLE of the State of New York, Respondent, v. Roger HICKS, Appellant.
CourtNew York Supreme Court — Appellate Division

Susan V. Tipograph, New York City, for appellant.

Richard J. Arcara, Buffalo, for respondent (Louis Haremski, of counsel).


BOOMER, Justice.

On appeal from his conviction of robbery in the first degree, defendant asserts that the evidence used against him should have been suppressed as the fruit of an illegal detention. After a Terry (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889) stop, the police returned defendant to the scene of an armed robbery for identification by the victims. We hold that under all the circumstances the limited investigatory detention and transportation were permissible and we affirm the conviction. 1


The pertinent facts were developed at the suppression hearing. Shortly after four o'clock in the morning of November 12, 1981, police officer Murray Wright and his partner heard a report over the radio that a robbery had just occurred at the Worthington Compressor factory in the City of Buffalo. They immediately entered their patrol car and drove at a high rate of speed toward the factory, one and one-quarter miles away. En route they heard another broadcast that the robbers, two black men, both five-feet, five-inches tall, fled in a green Pontiac with black trim. Slightly over a minute after the first broadcast and when the police were one-quarter mile away from the Worthington factory, Officer Wright saw two black men in a grey and black sedan on the same street where the factory was located, coming from the direction of the factory. Both men were "sitting low in their seats" and appeared to be of the same height. Suspecting that they might be the robbers, Officer Wright turned on his flashing red light and "pulled the car over".

When he approached the stopped car, he noticed that the occupants were approximately the height described over the radio. In answer to the officer's question about where they had been, the driver replied that they had just left work at American Brass. Officer Wright knew that defendant could not have been coming from the American Brass plant because it was miles away in the opposite direction, so he ordered both men out of the car and frisked them for weapons. He then explained that there had been a report of a robbery at the Worthington factory and he was going to take them there for possible identification; if they were not identified as the robbers, he would let them go. He placed the passenger in the back seat of the patrol car and told defendant, the driver, to park his car at a nearby gasoline station. Defendant complied and then also entered the patrol car. Neither was handcuffed and both accompanied the police without protest.

Within ten minutes of the stop, the patrol car arrived at the entrance to the Worthington factory where defendant was taken from the patrol car and identified by a security guard and two other Worthington employees as one of the two men who had committed the robbery and had stolen a safe. Following this identification, both men were arrested and the Buick was searched. Found in the trunk were the stolen safe, welding equipment the robbers used to cut the safe from its moorings, and the carbine and automatic pistol displayed during the robbery.

The People's evidence produced at the trial proved defendant's guilt beyond a reasonable doubt. The three Worthington employees testified to their hour-long ordeal. They were forced at gunpoint to lead both men to the payroll office, to assist them in using welding equipment to remove a safe from a metal cabinet, and to carry the safe and place it in the trunk of the Pontiac. They were then handcuffed to a railing inside the factory and, as soon as the robbers left, they broke loose and called the police. Although both armed men wore masks over their faces, the employees identified defendant and his accomplice from their clothing, mannerisms, voices, and general appearance.

Defendant's accomplice told how he and defendant rented the welding equipment a day before the robbery; how they stole the green Pontiac which they drove to and away from the Worthington factory, abandoning it a short distance away where they had parked defendant's Buick; and how they transferred the safe, the welding equipment and the weapons to the trunk of the Buick.

The manager of a welding supply store identified defendant and his accomplice as the men who came to his store and rented the welding equipment. He also identified the Buick as the car defendant drove to the store. He explained that as defendant drove away, he went outside the store and wrote the license plate number on the rental agreement.

Other items of incriminating evidence were defendant's fingerprints discovered on the metal cabinet from which the safe was taken and also on the side of the stolen Pontiac, a handcuff box found in the pocket of the accomplice, the mask left by defendant in the patrol car, and rubber gloves, similar to those worn by the robbers, found in the front compartment of defendant's Buick.


Defendant's principal argument is that, lacking probable cause for an arrest, the police seized him in violation of his rights under the Fourth Amendment by placing him in the patrol car and driving him to the scene of the robbery; and as a consequence, the identification testimony of the three Worthington employees and all of the physical evidence were inadmissible.

As stated by the United States Supreme Court, the Fourth Amendment is not a guarantee against all seizures but only against unreasonable seizures (United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605). In evaluating the reasonableness of the investigative detention in this instance, we must use a dual approach and examine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (United States v. Sharpe, supra, 105 S.Ct. p. 1573, quoting from Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, supra.)


An investigative detention is justified at its inception when, based upon the "totality of the circumstances--the whole picture--", the police have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." (United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621.) It cannot be seriously questioned that the stop of defendant was justified. Considering the whole picture, Officer Wright had a particularized and objective basis for suspecting that defendant had participated in the robbery at the Worthington factory. The defendant and his accomplice matched the general description of the two robbers as reported by radio. "Critically, the crime and subsequent stop took place at an early morning hour when there was little motor vehicle traffic. This is recognized as a significant factor justifying a stop upon much less comprehensive information than would be adequate were the stop made at midday." Timing and location are of "crucial importance" (People v. Johnson, 102 A.D.2d 616, 622-623, 478 N.Y.S.2d 987). Here, defendant was stopped only a short distance from the scene of the robbery, within minutes after it occurred, and as his automobile was travelling away from the place of occurrence.

Although the automobile did not fully match the description given over the radio, 2 nevertheless, the totality of the circumstances supported a reasonable suspicion that the occupants had committed the robbery. As stated by Professor LaFave: "[T]he investigating officers must be allowed to take account of the possibility that some of the descriptive factors supplied by victims or witnesses may be in error. * * * Moreover, account must be taken of the possibility that by a change of circumstances or efforts at concealment some aspects of the description may no longer be applicable. * * * And even when an offender is known to have fled in one type of car it will sometimes be permissible to stop a suspect in a quite different style of vehicle because of the reasonable possibility that a switch of vehicles has been made" (3 W. LaFave, Search and Seizure § 9.3, p. 88 [1978] ).


The debatable question is whether the subsequent detention and transportation of defendant were "reasonably related in scope to the circumstances which justified the interference in the first place." As stated in United States v. Sharpe (supra, 105 S.Ct. p. 1575), "[m]uch as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. * * * In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." The Sharpe court admonished that "[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." (United States v. Sharpe, supra, 105 S.Ct. p. 1576; see also United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381).

Under the test established by Sharpe, the detention was reasonable in duration. By taking the suspects to the Worthington factory a short distance away to determine whether eyewitnesses could identify or exclude the suspects as the perpetrators, the police diligently pursued a means of investigation most likely to confirm or dispel their suspicions quickly. The...

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4 cases
  • People v. Mingo
    • United States
    • New York Supreme Court — Appellate Division
    • May 23, 1986
    ...cause but constituted a limited "seizure" at most which was fully justified under 4th Amendment principles (see, People v. Hicks, 116 A.D.2d 150, 500 N.Y.S.2d 449 [1986] ). A reasonable person innocent of any crime would not have concluded that he had been arrested simply because a police o......
  • People v. Parris
    • United States
    • New York Supreme Court — Appellate Division
    • January 29, 1988
    ...question, the police possessed sufficient evidence to take defendant to the hospital for a show-up identification ( People v. Hicks, 116 A.D.2d 150, 500 N.Y.S.2d 449, affd. 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d ...
  • People v. Hicks
    • United States
    • New York Court of Appeals Court of Appeals
    • October 23, 1986
    ...acting in a swiftly developing situation, and in such cases he court should not indulge in unrealistic second-gussing.' " (116 A.D.2d 150, 155, 500 N.Y.S.2d 449.) Sharpe, of course, involved only the question whether a person suspected of criminal activity might be detained for a period of ......
  • People v. Castro
    • United States
    • New York Supreme Court — Appellate Division
    • July 28, 1994
    ... ...         The warrantless stop and frisk of defendant had to be based on reasonable suspicion of criminal activity, viz, "specific and articulable facts which, taken together with rational [206 A.D.2d 336] inferences from those facts, reasonably warrant [the] intrusion" (People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861, quoting People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889). Here, even disregarding the specific descriptions given to him over the radio, Detective ... ...

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