People v. Larkins

• Decision Date: 04 April 1986
• Citation: 500 N.Y.S.2d 441,116 A.D.2d 194
• Parties: PEOPLE of the State of New York, Respondent, v. Jerome LARKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 441

500 N.Y.S.2d 441

116 A.D.2d 194

PEOPLE of the State of New York, Respondent, v. Jerome LARKINS, Appellant.

Supreme Court, Appellate Division Fourth Department.

April 4, 1986.

Paul Shanahan, Rochester, for appellant.

Howard R. Relin, Rochester, for respondent (Wendy Lehmann, of counsel).

Before DILLON, P.J., and CALLAHAN, DOERR, GREEN and PINE, JJ.

DILLON, Presiding Justice:

The jury found defendant guilty of criminal possession of a controlled substance in the fifth degree. On appeal, he contends that cocaine and heroin seized in a search of his person should not have been received as evidence at his trial. We disagree, and hold that defendant's pretrial motion to suppress the narcotics was properly denied.

The evidence before the suppression court reveals that shortly after 1 a.m. on January 13, 1984, an identified citizen reported to Rochester Police Officer Tarnow that his car had just been struck by another vehicle which left the scene of the accident. The citizen provided a detailed description of the hit-and-run vehicle, including its year, model, color and license number. He also told Officer Tarnow that when he attempted to talk with the occupants he heard someone in the vehicle mention that there was a gun in the car; that shots had been fired and that he had fired his own weapon as the vehicle departed. The officer relayed the relevant information over the police radio, including a report of "possible weapons in the vehicle" and that shots had been fired.

Shortly thereafter, a vehicle precisely matching the description was located in the vicinity by other police officers. Defendant, one of three occupants of the vehicle, was a rear seat passenger. Officer Adams, who testified that he had heard Officer Tarnow's radio message stating "in sum and substance that a shot had been fired and someone had a gun", approached with his gun drawn and ordered defendant to step out of the vehicle. Adams frisked defendant, felt a "distinctive lump" in the area of defendant's left forearm and removed a leather "ammunition pouch" which he recognized "as one commonly carried by sportsmen to carry .22 caliber ammunition". Suspecting that "it contained weapons or ammunition", the officer opened the pouch and found a tightly bound bundle of 25 glassine envelopes containing substances which he believed were narcotics. Defendant was then placed under arrest and a further search of his person revealed an additional 18 glassine envelopes and a separate plastic bag, all containing similar substances. On analysis, the seized substances were found to be cocaine and heroin.

The Federal and State Constitutions protect every individual from unreasonable searches and seizures (U.S. Const., 4th amend.; N.Y. Const., art I, § 12). In determining the reasonableness of police conduct, the total circumstances must be considered (People v. David L., 81 A.D.2d 893, 895-896, 439 N.Y.S.2d 152 [Hopkins and Weinstein, JJ., dissenting], revd. on dissenting mem. 56 N.Y.2d 698, 451 N.Y.S.2d 722, 436 N.E.2d 1324, cert. denied, 459 U.S. 866, 103 S.Ct. 146, 74 L.Ed.2d 123). Here, given the citizen's detailed description of the hit-and-run vehicle, the police had probable cause to stop and/or detain the vehicle matching that description (see People v. Davidson, 110 A.D.2d 776, 488 N.Y.S.2d 218). Having effected a lawful detention for the traffic infraction (see Vehicle and Traffic Law § 600), the police were entitled to order the defendant and his companions out of the car (see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331; People v. David L., supra). Armed with reliable information that one of the occupants might possess a weapon and that shots had been fired, Officer Adams was justified in approaching the vehicle with gun drawn (see People v. Rosario, 94 A.D.2d 329, 465 N.Y.S.2d 211; People v. Livigni, 88 A.D.2d 386, 453 N.Y.S.2d 708 affd. 58 N.Y.2d 894, 460 N.Y.S.2d 530, 447 N.E.2d 78). On the same basis, the frisk of defendant by Officer Adams was justified as self-protective (see People v. McLaurin, 56 A.D.2d 80, 84, 392 N.Y.S.2d 1 [Nunez, J., dissenting], revd. on dissenting opn. 43 N.Y.2d 902, 403 N.Y.S.2d 720, 374 N.E.2d 614). It was premised upon a reasonable fear that defendant may have been armed (see People v. Roth, 66 N.Y.2d 688, 496 N.Y.S.2d 413, 487 N.E.2d 270; People v. Davis, 64 N.Y.2d 1143, 490 N.Y.S.2d 725, 480 N.E.2d 339; cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917) and was, in our view, appropriate in order "to ensure that the result of [any] inquiry would not be a hail of bullets" (People v. Sterling, 63 A.D.2d 210, 215, 406 N.Y.S.2d 478; see also People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958 cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479 [1980] ). It has been thoughtfully said that a police officer need not "await the glint of steel before he can act to preserve his safety" (People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645).

Surely Adams' rationally based fear was not alleviated by the discovery of an ammunition pouch on defendant's person (cf. People v. Roth, supra). It was not unreasonable for the police officer to have believed that the pouch was being used for its intended purpose, i.e. to carry ammunition, and that a gun about which he had information would not be far removed. In the circumstances of this encounter, the presence of the ammunition pouch on defendant's person provided an additional predicate for a further search, not only for ammunition but for a gun as well (see People v. Eckson, 58 A.D.2d 608, 609, 395 N.Y.S.2d 230). Indeed, Officer Adams testified as to his concern that the pouch itself could have contained a small .22 caliber handgun. On cross-examination, Adams agreed with defense counsel's estimate that the pouch was "approximately * * * three by three or three by four" inches in size. That the pouch was of sufficient capacity to hold such a weapon is not now seriously disputed, even by the dissenter. We conclude that Officer Adams had a reasonable basis for opening the ammunition pouch and, upon doing so and discovering the narcotics, he had probable cause to arrest the defendant, as he did, and to complete the search of defendant's person.

In sum, the police conduct we see here was reasonable at every stage of the encounter and there was no violation of defendant's federal or state constitutional rights.

The dissent requires comment. Neither People v. Russ, 61 N.Y.2d 693, 472 N.Y.S.2d 601, 460 N.E.2d 1086 nor People v. Hauser, 80 A.D.2d 460, 439 N.Y.S.2d 562 provides support for the dissenter's conclusion that the information possessed by the police officers "did not rise to the level of reasonable suspicion warranting a self-protective frisk" of the defendant. Both cases presented factual circumstances significantly different from those we see here.

In Russ, the information that defendant had been seen passing a handgun to another occupant of the car came from an anonymous source. There was no report of shots having been fired and at the time of the police encounter with the defendant, in broad daylight, defendant was the only occupant of the car (People v. Russ, 91 A.D.2d 593, 597, 458 N.Y.S.2d 185 [Milonas, J., dissenting] ). The frisk of defendant was found to be unjustified because there was no reasonable basis to suspect that the defendant was armed or dangerous. Indeed, the only relevant information the police had immediately preceding the frisk was that defendant no longer had the weapon in her possession.

Hauser is equally inapposite. There, prior to the frisk which occurred in a lighted shopping mall, the police had no information that defendant had been involved in any criminal activity or that he might have possessed a weapon. The police encounter did not, as here, involve a nighttime confrontation with an occupant of an automobile and was not, as here, fraught with tension and potential hostility.

The dissenter expresses the view that Officer Adams' opinion that the ammunition pouch could have contained a .22 caliber handgun "is, as a matter of law, incredible and specifically tailored to meet constitutional objections". While we do not question the power of one sitting in appellate review to make such a finding in the first instance (see People v. Berrios, 28 N.Y.2d 361, 369, 321 N.Y.S.2d 884, 270 N.E.2d 709), it is a power sparingly to be exercised. This is so for the obvious reason that the appellate court is without opportunity to employ the criteria ordinarily used in assessing credibility (see, e.g., People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Indeed, in People v. Vincente, 100 A.D.2d 789, 474 N.Y.S.2d 511, affd. 63 N.Y.2d 745, 480 N.Y.S.2d 202, 469 N.E.2d 523 which is cited by the dissenter as support for the view expressed, the suppression court had a full opportunity to assess credibility and found a police officer's testimony "in several important respects to be of dubious value, evasive and tailored to meet constitutional objections". In affirming that finding, the Appellate Division properly noted: "We should not interfere with a determination on a motion to suppress by substituting our judgment as to the credibility of a witness for that of the suppression Justice" (People v. Vincente, 100 A.D.2d 789, 474 N.Y.S.2d 511, supra). There is no reason here to depart from...