People v. Rosario

• Citation: 94 A.D.2d 329,465 N.Y.S.2d 211
• Parties: The PEOPLE, etc., Respondent, v. Michael ROSARIO and Michael Smith, Appellants.
• Decision Date: 05 July 1983
• Court: New York Supreme Court — Appellate Division

Page 211

465 N.Y.S.2d 211

94 A.D.2d 329

The PEOPLE, etc., Respondent, v. Michael ROSARIO and Michael Smith, Appellants.

Supreme Court, Appellate Division,

Second Department.

July 5, 1983.

Michael Vincent Ricci, Whitestone, for appellant Rosario.

William E. Hellerstein, New York City (Robert Dean, New York City, of counsel), for appellant Smith.

John J. Santucci, Dist. Atty., Kew Gardens (Thelma Lee, Kew Gardens, of counsel), for respondent.

Before LAZER, J.P., and MANGANO, GULOTTA and BRACKEN, JJ.

MANGANO, Justice.

These appeals again present the issue of whether a police officer may detain at gunpoint an individual whom he reasonably suspects of having committed a crime. Specifically, on the instant appeals defendants argue that even if the police had reasonable suspicion to suspect them of having committed a burglary and had the right to stop their car and temporarily detain them, they had no right to draw their guns to effectuate the stop. Accordingly, defendants argue that this gunpoint seizure was unlawful at its inception, that any fruits of the burglary discovered during the course of that detention must be suppressed as the fruits of the poisonous tree, and that the indictment must be dismissed.

We disagree with defendants' argument and, therefore, affirm the judgments of conviction.

On August 23, 1981, at approximately 4:30 A.M., Police Officer Douglas Brussell was on radio motor patrol with his partner in a marked police vehicle, in the vicinity of Main Street and 41st Avenue, in Queens County. They received a radio run from central communication concerning a burglary in progress at a florist shop located at 150th Street and 14th Avenue, in Queens. After driving for approximately 7 to 10 minutes, the officers arrived at 150th Street and 14th Avenue and, from a distance of about one-half of a block, they observed a brown Datsun 280Z, without its lights on, pull out of a closed gas station, located about two doors down from the florist, at a high rate of speed.

The officers pursued the Datsun and pulled abreast of the vehicle when it stopped at a traffic light approximately three and one-half blocks away. Upon pulling alongside the vehicle, Officer Brussell's partner extended his gun through the window of the police car and pointed it at the driver of the Datsun, defendant Smith. The officer told Smith to turn off the ignition and place his hands on the dashboard. As another car pulled in front of the defendants' vehicle, Officer Brussell, also with his gun drawn, walked to the passenger side of the car, where defendant Rosario was seated. Upon passing the rear of the vehicle with his flashlight illuminated, Brussell noticed a blue milk crate containing floral arrangements, cactus plants and ceramic pieces, which were in plain view through the glass window of the Datsun's hatchback. When Brussell approached the passenger side of the car, he observed a dozen roses protruding from between the legs of defendant Rosario. Thereupon, the defendants were taken from the vehicle and placed under arrest. At no time was Smith, the driver, asked for his license and registration, nor was he issued a summons for any traffic violation.

The officers returned to the florist shop with defendants and found that the window of the shop had been broken. The owner of the store, who had arrived in the interim, identified the property in the Datsun as belonging to him.

In denying the defendants' motions to suppress the physical evidence discovered in their car, Criminal Term stated:

"on the issue in question of the police officers' guns being drawn, the Court had heard testimony that Officer Brussell was responding to a police radio alarm, burglary in progress * * * [A]ny police officers responding to a radio alarm that indicates a crime such as a burglary in progress * * * would certainly authorize such officers upon the apprehension of any suspects to draw their guns".

It is beyond cavil that the presence of probable cause is not a necessary element for all encounters between police and the citizenry during investigations of criminal activity (see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, opn. of STEWART, J., in which REHNQUIST, J. joined). It is well settled that under appropriate circumstances, the police may briefly detain and question a person in a public place on information that does not rise to the level of probable cause, "for, until an actual arrest occurs, the Constitution demands only that the action of the police be justified at its inception and reasonably related in scope and intensity to the circumstances surrounding the encounter" (People v. Finlayson, 76 A.D.2d 670, 674, 431 N.Y.S.2d 839, cert. den. 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364; People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 324 N.E.2d 872; Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889).

In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the Court of Appeals set forth four levels of police intrusion and the degree of knowledge and credible belief "needed to justify each" level (People v. Finlayson, 76 A.D.2d 670, 676, 431 N.Y.S.2d 839, supra ). Among the levels of permissible police intrusion set forth in De Bour, and codified by statute in this State (see CPL 140.50, subd. 1), is the standard of "reasonable suspicion". That term has been defined as denoting "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872 supra ). It has been consistently held that, where an officer entertains a reasonable suspicion concerning an individual, it is reasonable, and therefore constitutional, for him to stop and briefly detain that individual for questioning (People v. Skinner, 48 N.Y.2d 889, 424 N.Y.S.2d 884, 400 N.E.2d 1336; People v. Simms, 57 A.D.2d 579, 393 N.Y.S.2d 433).

With reference to an investigative stop of an automobile, both our Court of Appeals and the United States Supreme Court have clearly ruled that such a stop constitutes a "seizure" governed by the constitutional strictures against unreasonable searches and seizures, and "that, absent at least a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law" (including traffic infractions), the stopping of an automobile constitutes an impermissible seizure (see People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39. People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872, supra; People v. Flanagan, 56 A.D.2d 658, 391 N.Y.S.2d 907; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331; N.Y. Const. art. 1, § 12; U.S. Const., 4th Amdt.).

With these fundamental principles, we can turn to the particular facts of this case.

The officers received and were entitled to rely upon the radio report of a burglary in progress at the florist shop (cf. People v. Lypka, 36 N.Y.2d 210, 336 N.Y.S.2d 622, 326 N.E.2d 294). Several minutes thereafter, the police reached the scene in their marked police car and observed a car, without its lights on, pull out at a high rate of speed from a closed gas station about two doors down from the florist.

Under these circumstances, the police possessed reasonable suspicion that the car's occupants were involved in criminal activity, i.e., the burglary at the florist shop, and therefore had an adequate basis to stop the car and investigate further (see People v. Lathigee, 84 A.D.2d 918, 446 N.Y.S.2d 655).

It is argued, however, that the level of intrusiveness must also be reasonable and that under the circumstances of this case "the means that the officers used to effect the stop--pointing their guns directly at the occupants--was [sic ] not reasonable", but "was a disproportionate response to the type of burglary indicated by the radio run".

It is to this contention that we now turn. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, supra, the Supreme Court held that upon stopping a car based on reasonable suspicion that a traffic violation had occurred, the police could order the driver out of the car. Subsequent toPennsylvania v. Mimms (supra ), case law in New York has evolved to a point where a valid investigatory stop of a car may be accompanied, as a protective measure, by the opening of any doors and a directive from the police to the occupants to exit the car (People v. David L., 56 N.Y.2d 698, 451 N.Y.S.2d 722, 436 N.E.2d 1324, revg. 81 A.D.2d 893, 439 N.Y.S.2d 152; 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). Thus, in People v. David L. (supra ), the Court of Appeals held that where the police had lawfully stopped a car which had a defective light and was making excessive noise, they were entitled to open any door, order the driver out, and seize anything in plain view.

In People v. Livigni (supra ), the police lawfully stopped a car for a traffic violation, ordered the driver out and checked his papers. The police then proceeded to the passenger side and observed an empty gun holster on the front seat. The police drew their guns and ordered the passenger out. As the passenger exited, the police saw a gun on the front seat where he had been sitting. They seized the gun and placed the passenger and the driver under arrest. In a pretrial motion to suppress, the passenger argued that the police engaged in an unlawful seizure when they ordered him out of the car at gunpoint and that the evidence of the gun and a subsequent inculpatory statement had to be suppressed as the fruits of the illegal seizure. In upholding the denial of defendant's motion to suppress, this court initially took note of the "inordinate risk confronting a police officer...