People v. Johnson

• Decision Date: 27 November 1984
• Citation: 64 N.Y.2d 617,474 N.E.2d 241,485 N.Y.S.2d 33
• Parties: , 474 N.E.2d 241 The PEOPLE of the State of New York, Respondent, v. Wayne JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 33

485 N.Y.S.2d 33

64 N.Y.2d 617, 474 N.E.2d 241

The PEOPLE of the State of New York, Respondent, v. Wayne JOHNSON, Appellant.

Court of Appeals of New York.

Nov. 27, 1984.

Edward J. Nowak, Public Defender, Buffalo (Peter D. Braun, Buffalo, of counsel), for appellant.

Howard R. Relin, Dist. Atty. (Michael J. Nelson, Rochester, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 98 A.D.2d 952, 470 N.Y.S.2d 194, should be reversed, defendant's motion to suppress granted and the indictment dismissed.

The flaw in the People's case is that nothing preceding the encounter with defendant justified a founded suspicion that he was engaged in or about to be engaged in criminal conduct. The officer testified to no more than that he had known defendant for six years and had "arrested him on several occasions for burglary" and that, "He was just walking through the Corn Hill area. We had a rash of burglaries in the area the last few weeks and concentrating our own efforts in the area. He was walking around looking at houses and aroused my suspicion." ¹ The facts that there had been previous criminal activity in the area, that when stopped defendant was in an alley and that he was "looking at houses" provide no sufficient bases to infer criminal activity had been or was about to be undertaken. It can hardly be regarded as unusual that defendant was looking at houses, for there is little else to look at in a residential neighborhood, and there is no other testimony suggesting that his behavior was furtive or his movements unusual or that he was carrying anything that might provide a basis for suspicion.

In sum, a stop based on no more than that a suspect has previously been arrested for burglary and that there have been burglaries in the area is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop. And there being in the facts presented no basis for an inference of criminal activity, the issue is not beyond our power of review (cf. People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447). ²

JASEN, Judge (dissenting).

Today's holding that the police do not have a right to approach a citizen on a public street to make a simple inquiry deals a serious and unjustifiable blow to effective law enforcement.

In the late morning of March 10, 1981, Officer Johnson of the Rochester Police Force was on duty and parked in an unmarked police vehicle in the Corn Hill section of the City. The officer was given specific orders to make every effort to observe criminal activity since the Corn Hill section had been plagued by numerous daytime burglaries, including burglaries reported as occurring several days earlier that week. The record discloses that such daytime burglaries in the Corn Hill section "had occurred by entry from back alley areas", and this fact was known to the officer on March 10.

Officer Johnson observed defendant "going through back allies" ¹ and walking in the Corn Hill area "looking at houses". The officer personally knew the defendant as he had arrested the defendant for burglaries on at least six prior occasions. Officer Johnson transmitted a radio call to Officer Klotzbach and indicated that a field interview should be administered to defendant. Officer Klotzbach, in pursuance of the request of Officer Johnson, called to the defendant and asked defendant to approach him. Officer Klotzbach asked the defendant for identification, which defendant produced, and whether he was armed. At this time, acting totally without solicitation, defendant voluntarily produced nine envelopes from under his clothing and stated that he had found the envelopes in an alley in the neighborhood. As it turned out, the envelopes contained stolen hockey tickets for Rochester Amerks games, and defendant later confessed to the theft from the box office. Thereafter, defendant pleaded guilty to one count of burglary in the third degree following a denial of his motion to suppress.

Both courts below, in refusing to suppress evidence of the crimes of burglary and larceny, held that the conduct of the police in approaching defendant to make a brief limited inquiry was proper under the circumstances. ² The majority in this court however, in reversing the judgment of conviction and dismissing the indictment, hold the police conduct "unlawful" and, in effect, violative of defendant's rights under the Fourth Amendment of the United States Constitution. I cannot agree and, therefore, respectfully dissent and vote to affirm the order of the Appellate Division.

What was unlawful with the police conduct here? The Fourth Amendment clothes the citizen with the right to be secure against "unreasonable searches and seizures". What search or seizure was conducted here? Certainly there was no search of the defendant. No move was made to search defendant's person or possessions. The police officer exited from his car and asked defendant to identify himself, which he did, and whether he was armed. Defendant responded by reaching "under his shirt and came out with a wad of envelopes saying, 'I find these in the alley behind me and was wondering what to do with them'."

Nor was there a "seizure" of defendant within the meaning of the Fourth Amendment. No claim is made that the police, in exercising their common-law right to inquire, acted in a threatening or abusive manner, nor did they say anything to indicate that defendant was not free to walk away during the inquiry. (See People v. Carrasquillo, 54 N.Y.2d 248, 252-253, 445 N.Y.S.2d 97, 429 N.E.2d 775.) It is established that a seizure, for Fourth Amendment purposes, has occurred only when a " 'reasonable person would have believed that he was not free to leave.' " (Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 Law enforcement officers do not violate the Fourth Amendment by "merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions". (Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, supra Florida v. Rodriguez, 469 U.S. ----, ----, 105 S.Ct. 308, 310-311, 83 L.Ed.2d 165.) As Justice White aptly noted in his concurring opinion in Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, supra ), "is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way * * * Of course, the person stopped is not obligated to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." (See, also, United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.)

Recognizing, as we must, that a police officer has the right to address questions to members of the public in the course of his duties, and that the purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, what constitutional impropriety occurred here? The Constitution bars unreasonable "seizures" but does not bar police intrusions to inquire that fall short of a "seizure", such as we have here. Based upon the objective definition of a "seizure"--whether a reasonable person would have believed that he was not free to go--the unobtrusive contact between the defendant and the police officer does not rise to the level of a seizure so as to warrant Fourth Amendment scrutiny. This view finds added support in the opinion of Justice Stewart in ...