People v. Olsen

• Decision Date: 04 April 1983
• Citation: 460 N.Y.S.2d 828,93 A.D.2d 824
• Parties: The PEOPLE, etc., Appellant, v. Christine OLSEN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 828

460 N.Y.S.2d 828

93 A.D.2d 824

The PEOPLE, etc., Appellant, v. Christine OLSEN, Respondent.

Supreme Court, Appellate Division Second Department.

April 4, 1983.

John J. Santucci, Dist. Atty., Kew Gardens (Merri Turk Lasky and Richard G. Denzer, Kew Gardens, of counsel), for appellant.

John J. Napolitano, Ozone Park (John Napolitano, Ozone Park, on the brief), for respondent.

Before LAZER, J.P., and GULOTTA, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County, dated September 2, 1981, which, after a hearing granted that branch of defendant's omnibus motion which sought suppression of physical evidence and statements.

Order reversed, on the law and the facts, and that branch of defendant's motion which sought suppression of physical evidence and statements denied and matter remitted to the Supreme Court, Queens County, for further proceedings.

The proper analysis in assessing the reasonableness of police conduct "is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual. Thus, the predicate established defines the scope of permissible police conduct" (People v. Stewart, 41 N.Y.2d 65, 66, 390 N.Y.S.2d 870, 359 N.E.2d 379). While a telephone call from an anonymous source furnishing a general description and location of "a man with a gun" will justify a belief that criminal activity is afoot (People v. Bruce, 78 A.D.2d 169, 172, 434 N.Y.S.2d 338; cf. People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872), it does not, by itself, constitute reasonable suspicion to stop and frisk anyone who happens to fit that description (People v. La Pene, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; CPL 140.50). Such a predicate triggers only the police officer's common-law right to detain to the extent necessary to obtain explanatory information (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Cantor, supra, 36 N.Y.2d p. 114, 365 N.Y.S.2d 509, 324 N.E.2d 872). This limitation on police conduct follows from the inability to ascertain the informant's reliability or basis of knowledge (compare People v. De Bour supra, 40 N.Y.2d pp. 224-225, 386 N.Y.S.2d 375, 352 N.E.2d 562, with People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471). To sustain more intrusive conduct, the quality of the information must be otherwise established. In order to give rise to probable cause to arrest or to search, the police must observe facts suggestive of criminal activity (People v. Elwell, supra, p 237, 428 N.Y.S.2d 655, 406 N.E.2d 471). By contrast, the requirement of reasonable suspicion for performing a protective pat-down (see Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889; People v. Wynn, 54 A.D.2d 366, 388 N.Y.S.2d 922), has been met when the police have been able to confirm, by personal observation, details supplied by the informant which are personal in nature and not in any way suggestive of criminal activity, but which are nonetheless so specific and congruous with that which was...