People v. Howard

• Decision Date: 03 July 1980
• Citation: 50 N.Y.2d 583,430 N.Y.S.2d 578,408 N.E.2d 908
• Parties: , 408 N.E.2d 908 The PEOPLE of the State of New York, Respondent, v. Archie William HOWARD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 578

430 N.Y.S.2d 578

50 N.Y.2d 583, 408 N.E.2d 908

The PEOPLE of the State of New York, Respondent, v. Archie William HOWARD, Appellant.

Court of Appeals of New York.

July 3, 1980.

Henry Winestine and William E. Hellerstein, New York City, for appellant

Mario Merola, Dist. Atty. (Cary W. Sucoff and Timothy J. McGinn, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pursuers in the basement of a building and while looking for a way out of the basement, drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make a warrantless search and seizure permissible. The order of the Appellate Division should, therefore, be reversed, the motion to suppress should be granted and the indictment should be dismissed.

Indicted for criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree, defendant Howard moved to suppress the gun and drugs which formed the basis for the indictment. They had been taken from him by Officers Charles Hanley and Cornelius Brosnan, who on the day of the seizure were on anticrime patrol in The Bronx in plainclothes and in an unmarked automobile. At about 1 p.m., in broad daylight, on University Avenue in the vicinity of Father Zeiser Place (an area which had a high incidence of burglaries), the officers observed Howard crossing University Avenue diagonally in a southeasterly direction. Their curiosity was aroused by the fact that defendant was carrying what appeared to be a woman's vanity case. As they passed defendant, both officers saw him look over his shoulder in their direction, in a manner described by Officer Hanley as "furtive". Defendant looked in the direction of the car two or three more times until he reached the center of University Avenue. Then as Hanley pulled the car to the right side of the street, defendant reversed direction, walked to the west side of the street and proceeded south on the sidewalk.

The police car made a U-turn and once again the officers saw defendant look in their direction. As the car neared him, defendant's pace quickened. As the car came parallel with defendant, Officer Brosnan displayed his police shield and said "Police Officer. I would like to speak to you." Though looking directly at the officers, defendant ignored them and continued walking south. The police followed and at the next opening between parked cars, Brosnan repeated the same words, and began to get out of the car. Defendant, without saying anything, started to run, holding the vanity case to his chest like a football would be held. The officers pursued and were joined in the chase by Victor Dragaj, a college freshman. Defendant proceeded over an iron fence, through an alleyway and into the basement of a building, at which point, pursued by Dragaj, defendant threw the vanity case into a pile of junk in the corner and sought but was unable to escape through a door which was locked, or a small window on the far side of the room. Dragaj restrained defendant and was joined by Officer Brosnan, who asked defendant why he had tried to get away. About 25 seconds later they were joined by Officer Hanley who identified himself as a policeman and asked about the vanity case or box. Dragaj pointed to it and Hanley retrieved it from the rubbish pile, which was beyond defendant's reach, and immediately opened it, revealing a .38 caliber revolver and heroin in glassine envelopes. Hanley then placed defendant under formal arrest.

Criminal Term granted defendant's motion to suppress, concluding that defendant's flight could not escalate suspicion to anything more, that even if defendant's flight made a stop and frisk permissible the officers went beyond the allowable scope of CPL 140.50 since defendant was no threat to the officers' safety and the vanity case was outside the grabbable area, and that there had been no abandonment. The Appellate Division reversed on both grounds, "on the law and the facts" (65 A.D.2d 714, 411 N.Y.S.2d 12). Since reversal was not on the law alone defendant's application for permission to appeal was dismissed (46 N.Y.2d 1080, 416 N.Y.S.2d 1035, 390 N.E.2d 310). Howard then pleaded guilty to criminal possession of a controlled substance and appealed as permitted by CPL 710.70 (subd. 2). The Appellate Division having affirmed, without opinion (72 A.D.2d 503, 420 N.Y.S.2d 526), leave to appeal was granted by a Judge of this court (48 N.Y.2d 801, 423 N.Y.S.2d ----, 399 N.E.2d 958).

Defendant argues that there was no justification for police action of any kind; that in any event he had a constitutional right to refuse to answer a police inquiry; that his exercise of that right by walking and then running away did not justify detention of him or seizure of the vanity case; and that as a matter of law there was no abandonment. While we hold that there was a sufficient basis to permit inquiry, we agree that defendant had the right not to answer, that his running did not, absent any indication that any crime had been or was about to be committed, permit detention; that there was no probable cause for defendant's arrest; and that the vanity case had not been abandoned.

As we have recently had reason to reiterate in People v. Belton (50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420), "(t)he privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field." That privacy interest is protected by the mandate of the Fourth Amendment to the United States Constitution and section 12 of article I of our State Constitution both of which, in identical language, state: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." It is protected as well by CPL 140.50, which outlines when a police officer may stop and search persons in a public place, ¹ and by decisional law expounding the common law and interpreting the constitutional and statutory safeguards.

The principles that have evolved seek to balance society's interest in the detection and prevention of crime and in the protection of the lives and safety of law enforcement officers with the interest of individuals in living their lives free from governmental interference. Therefore whether there has been an unreasonable breach of legitimate expectations of privacy involves consideration of (1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience (see United States v. Mendenhall, --- U.S. ----, ----, 100 S.Ct. 1870, 1881, 65 L.Ed.2d 497 (Powell, J., concurring); see, also, Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357; Dunaway v. New York, 442 U.S. 200, 211-214, 99 S.Ct. 2248, 2255-57, 60 L.Ed.2d 824; Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 1396-97, 59 L.Ed.2d 660; Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889, which it is argued affect the classifications we enunciated in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).

We have no difficulty in concluding that the officers' request for information from defendant was justified under those criteria. In an area beset by a high burglary rate defendant was seen carrying a woman's vanity case by the officers, one of whom testified that it was not uncommon for a burglar to carry away loot in his victim's luggage. Considering those facts together with defendant's numerous glances at the officers' car, his change of direction and his quickened pace, we conclude that, though the carrying by a man of a woman's purse does not constitute probable cause (People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818, cert. den. 423 U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 109) and though defendant could, the car being unmarked and the officers in plainclothes, have acted evasively out of fear for his own safety, the circumstances constituted a sufficient basis ² for the inquiry made, which of itself constituted no more than a minor inconvenience to defendant (Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 n. 6, and cases cited, infra, p. 588, 430, N.Y.S.2d 582, 408, N.E.2d 911 and 912; see 3 La Fave, Search and Seizure, § 9.2).

There was, therefore, basis for questioning defendant, but there was nothing that made permissible any greater level of intrusion. The officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal, and were confronted only by facts susceptible of innocent interpretation (State v. Saia, 302 So.2d 869 (La.), cert. den. 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 767). Presence in an area of "frequent burglaries" was an insufficient basis (People v. Schanbarger, 24 N.Y.2d 288, 291, 300 N.Y.S.2d 100, 248 N.E.2d 16); in this day of unisex haircuts and clothing, the carrying of woman's vanity case was at best equivocal (People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818, cert. den. 423 U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 109, supra ; cf. People v. Lakin, 21 A.D.2d 902, 251 N.Y.S.2d 745); and defendant's "furtive" movements (repeated glances, change of direction, quickened pace) were, the car...