People v. Russ

• Citation: 91 A.D.2d 593,458 N.Y.S.2d 185
• Parties: The PEOPLE of the State of New York, Respondent, v. Pamela Renee RUSS, Defendant-Appellant.
• Decision Date: 30 December 1982
• Court: New York Supreme Court Appellate Division

Page 185

458 N.Y.S.2d 185

91 A.D.2d 593

The PEOPLE of the State of New York, Respondent, v. Pamela Renee RUSS, Defendant-Appellant.

Supreme Court of New York, Appellate Division First Department.

December 30, 1982

K.M. Muller, New York City, for respondent B.S. Stendig, New York City, for appellant.

Judgment, Supreme Court, New York County (Preminger, J., at plea and sentence; Greenfield, J., at suppression hearing), rendered December 15, 1980, affirmed as to both the order of denial of the suppression motion and the judgment flowing from the plea of guilty.

SANDLER, SULLIVAN and MARKEWICH, JJ., concur in separate memoranda by MARKEWICH, J., and SANDLER, J.P.; and MILONAS, J., dissents in a memorandum; all as follows:

MARKEWICH, J. (concurring):

While we accept the statement of the facts as set forth by our dissenting brother, we do not agree with his conclusion that the motion to suppress should have been granted. The facts, contrary to the dissent's position, do not add up to a case of a police officer acting solely in reliance upon an anonymous radio description of a man, not the defendant, who was never seen by the officer, and who is not before the court. Not at all. In evaluating the circumstances by holding them up for inspection in order to make findings to lead us to the applicable law, one cannot take possibly pertinent rules of law and fit the facts into them. Rules of law must derive from the facts, and must be more than mere abstractions. "There is no rule in law which has any value in the abstract; for it to have life and meaning, it must be applied to a set of facts, in which the participants are people, who act and react in a situation in a human way." People v. Alba, 81 A.D.2d 345, 352, 440 N.Y.S.2d 230. "[A] radioed tip may have almost no legal significance when it stands alone, but ... when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action." People v. Benjamin, 51 N.Y.2d 267, 270, 434 N.Y.S.2d 144, 414 N.E.2d 645. This applies precisely to the situation before us. When police knowledge and experience are considered along with all the discernible objective facts, there emerges a complete pattern justifying police intervention.

"Phrases of art like probable cause, reasonable suspicion, minimum level of intrusion, and stop and frisk are so much a part of the legal lexicon that by now one would have expected the development of a body of decisional law encapsulating into appropriate niches a constitutionally sanctioned course of conduct for the myriad * * * situations in which police officers find themselves. Unfortunately, however, for even the dispassionate court sitting in review long after the event, the determination as to what constitutes a proper police response does not always readily lend itself to resolution. And * * * time is a luxury hardly ever available. As here, he is often called upon to make split-second decisions". (People v. Valdez, 78 A.D.2d 449, 452, 437 N.Y.S.2d 671.) "As noted in [People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872] whether or not a particular search or seizure is to be considered reasonable requires a weighing of the government's interest against the encroachment involved with respect to an individual's right to privacy and personal security (at p. 111 [365 N.Y.S.2d 509, 324 N.E.2d 872] ). Thus, we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible." (People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562.) "The complex nature of urban society, with its propensity to serve as a breeding ground for crime, has focused attention upon societal needs in relation to individual liberties. The quest to reasonably protect the one without unduly infringing upon the other has impelled the courts to 'seek to balance society's interest in the detection and prevention of crime and in the protection of the lives and safety of law enforcement officers with the interest of individuals in living their lives free from governmental interference. Therefore, whether there has been an unreasonable breach of legitimate expectations of privacy involves consideration of (1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience' (People v. Howard, 50 N.Y.2d 583, 589 [430 N.Y.S.2d 578, 408 N.E.2d 908]; see, also, People v. De Bour, 40 N.Y.2d 210 [386 N.Y.S.2d 375, 352 N.E.2d 562] ). Here, the intrusion was, in the circumstances, minimal." (People v. Dean, 79 A.D.2d 555, 556, 433 N.Y.S.2d 803.)

"Reasonableness is the touchstone by which police conduct is measured under the Fourth Amendment. (Cady v. Dombrowski, 413 U.S. 433, 439 [93 S.Ct. 2523, 2527, 37 L.Ed.2d 706]; People v. Prochilo, 41 N.Y.2d 759, 761 [395 N.Y.S.2d 635, 363 N.E.2d 1380].) 'Whether * * * a particular search or seizure is to be considered reasonable requires weighing the government's interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual's right to privacy and personal security.' (People v. Cantor, 36 N.Y.2d 106, 111 [365 N.Y.S.2d 509, 324 N.E.2d 872]; Terry v. Ohio, 391 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].) In weighing these interests, 'we must consider first whether * * * the police action was justified in its inception and secondly whether * * * that action was reasonably related in scope to the circumstances which rendered its initiation permissible.' (People v. De Bour, 40 N.Y.2d 210, 215 [386 N.Y.S.2d 375, 352 N.E.2d 652].) Reasonableness is an amorphous concept. Hence, the propriety of police conduct in a citizen * * * encounter 'must necessarily turn on the facts in each individual case.' (People v. Green, 35 N.Y.2d 193, 195 [360 N.Y.S.2d 243, 318 N.E.2d 464].)" (People v. Williams, 79 A.D.2d 147, 148-149, 436 N.Y.S.2d 15.) "In assessing the reasonableness of police conduct * * * the Court of Appeals has stated that: '[T]he proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether * * * 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], at p. 66 [390 N.Y.S.2d 870, 359 N.E.2d 379].)" (People v. Bruce, 78 A.D.2d 169, 172, 434 N.Y.S.2d 338.) "[T]he determination whether police conduct is reasonable ultimately involves a balancing of the citizen's right of privacy and society's interest in the apprehension of a suspected lawbreaker. (People v. Cantor, 36 N.Y.2d, at p. 111 [365 N.Y.S.2d 509, 324 N.E.2d 872]; People v. Jackson, 72 A.D.2d 149, 153 .) The predicate for the police action defines the extent of the permissible intrusion. (People v. Stewart, 41 N.Y.2d, at p. 66 [390 N.Y.S.2d 870, 359 N.E.2d 379].) [P]rompt police action is compelled. Given this predicate, we should accord the police officers' assessment of the danger confronting them considerable weight in the determination of whether the intrusion was constitutionally justified." (People v. Bruce, supra, p. 175, 434 N.Y.S.2d 338.)

And so we turn to examination of the evidence in the light of the foregoing lessons. To begin with, the description of the man referred to in the radio run mattered not at all, but other factors in the radio run did: that a gun had been handed over to that man by a woman in a blue white-top automobile. And, as though a cue line had been spoken, there appeared at once to the officers' sight the automobile just described with a woman sitting in it. To be borne in mind is that the target of the police action was, first, the gun and, only secondarily, its possessor. Further, as is a matter of common knowledge not alone to police, criminals quite often do not personally carry the weapons they may wish to use, but entrust them, between or before or after engagements, to so-called "gun molls." ^* The purpose is obviously to reduce the risk of being themselves found in possession of contraband. Since the officer knew this, and also had heard that the earlier reported possessor of a weapon in the very described car had received it from a woman, the distinct possibility presented itself that the gun may have been returned to its place of bailment, and that hence immediate police action was required. Self-protection obviously demanded the ready availability of the officer's own weapon while continuing his investigation into the presence of the other firearm. "It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety. Considering the totality of the circumstances, including the radio call and the information acquired by observation at the scene, there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the loaded revolver." People v. Benjamin, supra, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645.

One final observation. It may well have been, as the dissent has it, that "Officer McCormick did not assert that he was fearful for the life or safety of himself or other individuals." The presence or absence of these words is not, however, determinative. It is easy to understand that, in his appropriate and almost Pavlovian response to the information he had acquired both before and after arrival, and the emergency confronting him, the officer's adrenalin was in full flow, and, weapon in hand, he felt equal to any eventuality. That would have been the reality of the situation. The suppression motion was properly denied.

SANDLER, J. (concurri...