People v. Samuels

• Decision Date: 03 July 1980
• Citation: 50 N.Y.2d 1035,409 N.E.2d 1368,431 N.Y.S.2d 694
• Parties: , 409 N.E.2d 1368 The PEOPLE of the State of New York, Respondent, v. Roland SAMUELS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 694

431 N.Y.S.2d 694

50 N.Y.2d 1035, 409 N.E.2d 1368

The PEOPLE of the State of New York, Respondent, v. Roland SAMUELS, Appellant.

Court of Appeals of New York.

July 3, 1980.

Hillard Wiese, William E. Hellerstein and Ellen J. Schneider, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Gabrielle Rhodes and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 68 A.D.2d 663, 418 N.Y.S.2d 607, should be affirmed.

The case comes to us on the following affirmed findings of fact: Detective Fougere observed defendant enter a novelty shop on 42nd Street and purchase a holster for a .25 caliber automatic pistol. The detective followed defendant down 42nd Street after defendant left the shop, showed his shield and identified himself as a police officer and asked defendant why he purchased the holster. Defendant's only response was to put his hand into his coat pocket. Told to remove his hand from his pocket, defendant failed to do so. The detective then grabbed defendant's hand by grabbing the coat pocket with defendant's hand in it and in doing so felt a gun.

Defendant argues that Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 requires reversal and the granting of his motion to suppress. We disagree. Brown involved no more articulable reason to detain the person arrested than that his passing another person in an alleyway "looked suspicious" (cf. United States v. Mendenhall, 446 U.S. ----, ----, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (Justices Stewart and Rehnquist)). Here defendant had been observed buying a holster for a gun. While such a purchase is not criminal, it furnished a sufficient basis for the inquiry made by Detective Fougere (see People v. Skinner, 48 N.Y.2d 889, 890, 424 N.Y.S.2d 884, 400 N.E.2d 1336). There being no display of force nor anything more than the addressing of a question to defendant, the encounter clearly was not a seizure up to that point.

Defendant's failure to respond without more would not have permitted further action by the police (cf. People v. Howard, 50 N.Y.2d 583, 430 N.Y.S.2d 578, 408 N.E.2d 908). But when to that failure is added defendant's placing of his hand in his overcoat pocket and refusal to withdraw it, Detective Fougere's interest in his own safety was sufficient basis for his grabbing the hand through the coat for he had reason to believe that he might be dealing with an armed and, therefore, dangerous individual (cf. Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917). Under those circumstances it is reasonable to infer, as did the courts below, that he grabbed defendant's hand to protect himself, even though he never expressly so testified. Under the Supreme Court's ruling in Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 he had a right to do so "regardless of whether he has probable cause to arrest the individual for a crime."

People v. Prochilo, 41 N.Y.2d 759, 763, 395 N.Y.S.2d 635, 363 N.E.2d 1380 is distinguishable for there there was nothing to suggest that the heavy object in defendant Bernard's pocket was a gun, whereas here the purchase of a holster is directly suggestive of the presence of a gun. Though not sufficient evidence of criminality to permit more than an inquiry, the purchase of the holster together with the potential menacing movement of defendant's placing his hand in his coat pocket was sufficient to warrant Fougere's protective action (see CPL 140.50, subd. 3).

COOKE, Chief Judge (concurring).

I agree that there should be an affirmance, but solely on the ground that, in these circumstances, the purchase of a holster designed for use with an automatic weapon furnished reasonable suspicion of criminality. On this view, there is no occasion to reach the question whether the police may detain an individual briefly for questioning on less than reasonable suspicion of criminal activity (compare Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, with United States v. Mendenhall, 446 U.S. ----, ----, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (Stewart and Rehnquist, JJ.)).

It would appear, under recent authority, that reasonable suspicion of criminality is the minimum standard which would support such a limited stop (see Brown v. Texas, supra, at pp. 48-50, 99 S.Ct. at 2639; People v. Skinner, 48 N.Y.2d 889, 890, 424 N.Y.S.2d 884, 400 N.E.2d 1336; but cf. United States v. Mendenhall, supra, 446 U.S. at p. ----, 100 S.Ct. at p. 1876 (Stewart and Rehnquist, JJ.)). Of course, this standard would apply to investigatory stops only, and the police would remain free to elicit information from citizens, for example concerning a lost child, in noninvestigatory and unintrusive street encounters.

FUCHSBERG, Judge (dissenting).

The circumstances here fell far short of the narrowly circumscribed ones which would have permitted either the initial stop or the ultimate search and seizure of the defendant.

The majority concedes, as indeed it must, that it was perfectly lawful for the defendant to patronize the novelty store in order to purchase a holster. For no law forbids or regulates its sale. It also is not, and cannot be, denied that the item might just as well have been bought as a gift, as a housing for a toy gun or as a container for one of the nearly three quarters of a million handguns whose possession is licensed in New York State (see Annual Report of New York State Police Department (Jan. 31, 1980)). Nor is it as much as suggested that defendant's conduct in buying and carrying one from the store was in any sense furtive or clandestine.

Yet, on these facts the court is willing to condone what I would have thought was a patently unjustified infringement on a person's freedom to move about in public without police interference. In this I cannot concur.

We need look no further than the Supreme Court's recent decision in Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 375 for the demanding principle that the police may detain an individual briefly for questioning only if they "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." (Cf. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660.) The objective facts here, however, utterly fail to approach, much less cross, the threshold of ambiguity, and no superimposed interpretation or categorization can remedy the defect (see People v. Howard, 50 N.Y.2d 583, 430 N.Y.S.2d 578, 408 N.E.2d 908).

As I see it, in countenancing the police confrontation with Samuels, the court is effectively announcing that anyone who purchases a holster for a not uncommon variety of gun, whether in this store or, say, Abercrombie and Fitch or Modell's or Herman's or any other of the numerous novelty and sporting goods shops that sell such articles in New York City, forfeits the constitutional right to be secure from unwarranted harassment. Or, for that matter, by permitting the police to cavalierly compromise the right to privacy in this fashion, the court might just as well be saying that anyone who leaves with a parcel from an establishment that carries holsters as part of its stock is open to such invasion. ¹ The same could be said of the "scissors and needles, nails and knives" (Gilbert & Sullivan, Patience, Act II) and the plethora of other everyday articles that our citizens are free to buy and to own without molestation until and unless there is specific, credible reason to believe they are being put to criminal use.

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