People v. Moore

• Decision Date: 21 March 1973
• Citation: 32 N.Y.2d 67,343 N.Y.S.2d 107,295 N.E.2d 780
• Parties: , 295 N.E.2d 780 The PEOPLE of the State of New York, Respondent, v. Barbara MOORE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 107

343 N.Y.S.2d 107

32 N.Y.2d 67, 295 N.E.2d 780

The PEOPLE of the State of New York, Respondent, v. Barbara MOORE, Appellant.

Court of Appeals of New York.

March 21, 1973.

Robert Naidus, Brooklyn, William E. Hellerstein and Robert Kasanof, New York City, for appellant.

Thomas J. Mackell, Dist. Atty. (Charles M. Newell, Woodhaven, of counsel), for respondent.

JASEN, Judge.

The issue on this appeal concerns the validity under the Fourth Amendment of a warrantless search of the defendant's handbag and the seizure of a loaded revolver. After a hearing, the defendant's motion to suppress the weapon was denied. Thereupon, she entered a plea of guility to the lesser offense of attempted possession of a dangerous weapon and the Appellate Term, Second Department, affirmed the conviction. We hold that the motion to suppress was properly denied and, accordingly, affirm the order of the Appellate Term.

While seated in an automobile stopped at an intersection in Queens, the defendant was accosted by one Felix Dotson. Dotson, with whom the defendant had been living, entered the vehicle on the passenger side, pushed the defendant's younger brother aside and grabbed her by the wrist. Brandishing a knife at her throat, he demanded, 'Where did you find this car?' The defendant managed to free herself from his grasp and ran from the vehicle to a nearby police car. She reported that Dotson had been harassing her for several days and had just menaced her with a knife. The police then returned to the defendant's automobile and arrested Dotson. He told the arresting officer, Patrolman DeVito, that the defendant was his wife and that she was 'sick'. Enroute to the police station, Dotson told Patrolman DeVito that the defendant had a gun in her possession.

The defendant preceded the arresting officer to the police station to file a complaint against Dotson. At the police station, Patrolman DeVito confronted her and asked for her handbag, which she surrendered to him. DeVito then searched the handbag and found a loaded .22 caliber revolver. ¹ Upon showing the revolver to the defendant, she admitted not having a permit for it. Thereupon, she was arrested and charged with possession of a dangerous weapon. It is conceded that when the handbag was searched and the weapon seized, the defendant was not under arrest and the officer did not have a search warrant. Nor is it contended that the defendant consented to the search.

This case presents a somewhat unique variation in a line of cases arising under the 'stop' and 'frisk' law (Code Crim.Pro., § 180--a; CPL 140.50, Consol.Laws, c. 11--A) and the Reasonable Search and Seizure Clause of the Fourth Amendment ². The touchstone under the statute as well as under the Federal Constitution is reasonableness. Where probable cause for an arrest is lacking, the forcible encounter, the stop, or the seizure, of a citizen by a police officer must arise from a reasonable suspicion that criminal activity is afoot. ³ (Code Crim.Pro., § 180--a; CPL 140.50; Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612; cf. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889; Sibron v. New York, 392 U.S. 40, 72--73, 88 S.Ct. 1889, 20 L.Ed.2d 917 (Harlan J., concurring); see, also, People v. Rosemond, 26 N.Y.2d 101, 103--104, 308 N.Y.S.2d 836, 837--839, 257 N.E.2d 23, 24--25; People v. Rivera, 14 N.Y.2d 441, 445, 252 N.Y.S.2d 458, 461, 201 N.E.2d 32, 34.) There is, however, no ready test for determining reasonableness. Rather, a balance must be struck between the need to seize (or stop) and the invasion which the seizure (or stop) entails. (Cf. Terry v. Ohio, 392 U.S., at p. 21, 88 S.Ct. 1868; see People v. Rivera, 14 N.Y.2d, at pp. 444--445, 252 N.Y.S.2d, at pp. 460--462, 201 N.E.2d, at pp. 33--35.) In the final analysis, the test is whether the facts available to the officer at the moment of the seizure would warrant a person of reasonable caution in believing that the action taken was appropriate. (Cf. Terry v. Ohio, 392 U.S., at pp. 21--22, 88 S.Ct. 1868; see People v. Taggart, 20 N.Y.2d 335, 339--341, 283 N.Y.S.2d 1, 5--8, 229 N.E.2d 581, 583--585.)

To be sure, reasonable cause for an investigatory stop may be based on the police officer's personal observation or on information supplied by another person. (Adams v. Williams, 407 U.S., at p. 147, 92 S.Ct. 1921; People v. Taggart, 20 N.Y.2d, at pp. 337, 339, 283 N.Y.S.2d, at pp. 3, 5, 229 N.E.2d, at pp. 582, 583; cf. People v. Arthurs,24 N.Y.2d 688, 691--693, 301 N.Y.S.2d 614, 617--619, 249 N.E.2d 462, 463--465 (concurring information from several indivuduals, some anonymous, sufficient for probable cause to detain, frisk and search defendant).) But where an informant's tip is involved, it must carry sufficient indicia of reliability to justify the forcible encounter. (Adams v. Williams, 407 U.S., at pp. 146--147, 92 S.Ct. 1921; see People v. Taggart, 20 N.Y.2d, at pp. 337, 339, 283 N.Y.S.2d, at pp. 3, 5, 229 N.E.2d, at pp. 582, 583; cf. People v. Arthurs, 24 N.Y.2d, at pp. 691--693, 301 N.Y.S.2d, at pp. 617--619, 249 N.E.2d, at pp. 463--465.) It follows that since the standard of reasonable suspicion to stop is lower than the standard of probable cause for an arrest, a less stringent standard should apply for screening tips in the stop context--i.e., an officer may stop on less or different information than probable cause would require. (See Adams v. Williams, 407 U.S., at pp. 146--147, 92 S.Ct. 1921; People v. Taggart, 20 N.Y.2d at pp. 338, 340--341, 343, 283 N.Y.S.2d, at pp. 4, 6--8, 9, 229 N.E.2d, at pp. 583, 584--585, 586.)

Not every stop, however, will support an incidental search for weapons. The statute predicates such a search on the police officer's reasonable suspicion that the indivudual is presently dangerous. (Code Crim.Pro., § 180--a, subd. 2; CPL 140.50, subd. 2; see Sibron v. New York, 392 U.S., at p. 64, 88 S.Ct. 1889.) But where the stop is for a 'serious and violent crime', we have recognized an immediate and automatic right to search--i.e., the reasonable suspicion of criminal activity justifies the stop and the frisk or search. (People v. Mack, 26 N.Y.2d 311, at pp. 317--318, 310 N.Y.S.2d 292, at pp. 297--299, 258 N.E.2d 703, at pp. 706--708; see People v. Taggart, 20 N.Y.2d, at pp. 341--342, 283 N.Y.S.2d, at pp. 7--8, 229 N.E.2d, at pp. 585--586.) It follows that where reliable information or facts available to the police officer link the individual to a weapon, the belief of danger to himself and others is real and reasonable and an immediate search is justifiable. (People v. Mack, 26 N.Y.2d, at pp. 317--318, 310 N.Y.S.2d, at pp. 297--299, 258 N.E.2d, at pp. 706--708; see People v. Taggart, 20 N.Y.2d, at pp. 339--340, 283 N.Y.S.2d, at pp. 5--7, 229 N.E.2d, at pp. 583--585; cf. People v. Arthurs, 24 N.Y.2d, at pp. 691--692, 301 N.Y.S.2d, at pp. 617--619, 249 N.E.2d, at pp. 463--465.)

Here, the forcible encounter between the police officer and the defendant occurred in a precinct station house. It was, in our view, precipitated by a reasonable suspicion that the defendant was carrying a concealed weapon. We think the totality of the circumstances necessitated an immediate police response (Sibron v. New York, 392 U.S., at p. 73, 88 S.Ct. 1889 (Harlan, J., concurring)), and although that response was predicated on an informant's tip, we find that the requisite indicia of reliability were present to warrant the action taken.

The officer making the stop had just investigated a serious altercation in which the informant (Dotson) allegedly threatened the defendant with a knife. The information available to the police officer was that the informant and the defendant were man and wife, that they had been quarreling over a period of three days, that at least one dangerous weapon--the knife--was involved, and that the defendant was 'sick'. The informant, presumably speaking from personal knowledge, said the defendant had a gun. (See People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581, Supra; People v. Arthurs, 24 N.Y.2d 688, 301 N.Y.S.2d 614, 249 N.E.2d 462, Supra.)

It is necessary to emphasize that this is not a case where the informant is anonymous. (See People v. Johnson, 30 N.Y.2d 929, 335 N.Y.S.2d 684, 287 N.E.2d 378; People v. Bronk, 66 Misc.2d 932, 323 N.Y.S.2d 134 (App. Term, 1st Dept.), affd., 31 N.Y.2d 995, 341 N.Y.S.2d 450, 293 N.E.2d 826.) ⁴ Knowing that he would be confronted by his paramour at the police station and that his information would be immediately verifiable, it should be abundantly clear that Dotson had little motive for fabrication. It should also be noted that under section 240.50 of the Penal Law, he was chargeable with falsely reporting an incident if his information was in fact false.

Having concluded that the stop was justified and considering the reason for the stop (report of a concealed weapon), we do not find the scope of the search constitutionally or statutorily impermissible. (People v. Taggart, 20 N.Y.2d, at pp. 342--343, 283 N.Y.S.2d, at pp. 8--9, 229 N.E.2d, at pp. 585--587; People v. Pugach, 15 N.Y.2d 65, 255 N.Y.S.2d 833, 204 N.E.2d 176 (weapon in closed briefcase).) Further, with the exigent circumstance of a weapon involved, we think it would be unreasonable to expect the police officer to have questioned the suspect preliminarily or to have engaged in a preparatory and perhaps dangerous, and almost certainly ineffectual, pat-down of the handbag. (People v. Mack, 26 N.Y.2d, at pp. 317--318, 310 N.Y.S.2d, at pp. 279--299, 258 N.E.2d, at pp. 706--708; People v. Taggart, 20 N.Y.2d at pp. 341--342, 283 N.Y.S.2d at pp. 7--8, 229 N.E.2d at pp. 585--586.) Under the circumstances, we think the limited intrusion involved in searching the defendant's handbag was reasonable. (See People v. Pugach, 15 N.Y.2d 65, 255 N.Y.S.2d 833, 204 N.E.2d 176 Supra; cf. People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581, Supra.)

Then, too, we...