People v. Stewart

• Decision Date: 20 December 1976
• Citation: 359 N.E.2d 379,41 N.Y.2d 65,390 N.Y.S.2d 870
• Parties: , 359 N.E.2d 379 The PEOPLE of the State of New York, Respondent, v. Jerry STEWART, Appellant. The PEOPLE of the State of New York, Respondent, v. Donald WILLIAMS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 870

390 N.Y.S.2d 870

41 N.Y.2d 65, 359 N.E.2d 379

The PEOPLE of the State of New York, Respondent, v. Jerry STEWART, Appellant.

The PEOPLE of the State of New York, Respondent, v. Donald WILLIAMS, Appellant.

Court of Appeals of New York.

Dec. 20, 1976.

Richard A. Greenberg and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

Eugene Gold, Dist. Atty., Brooklyn (Stephen W. Riddell, Brooklyn, of counsel), for respondent in the first above-entitled action.

Susan A. Powers, William E. Hellerstein and William J. Gallagher, New York City, for appellant in the second above-entitled action.

Robert M. Morgenthau, Dist. Atty., New York City (Jane Deutscher and Peter L. Zimroth, New York City, of counsel), for respondent in the second above-entitled action.

WACHTLER, Justice.

Both these cases involve the use of anonymous telephone information by the police as a predicate to approach individuals on the street. In People v. Williams the order of the Appellate Division should be affirmed; in People v. Stewart the order of the Appellate Division reversed.

The Ratio decidendi for the instant cases will be clearer if the standards which were enunciated in People v. De Bour and People v. La Pene, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, are reiterated. Simply stated the proper analysis in cases of this nature 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. Of course, the justification for police intervention must be based on constitutionally cognizable factors. In People v. De Bour (supra), we noted that these factors are essentially gradations of the probable cause standard, with the proviso that they be objective and susceptible of articulation (People v. De Bour, supra).

In evaluating the role of the exclusionary rule as a deterrent factor in this area, it is clear that the deterrent effect is directed not at the initial predicate (which can be the amalgam of any number of factors) but at the intensity of the police action. Articulated in another manner we can consider the predicate as a stimulus and the police conduct as the response. Aside from the obvious objective of deterring the police from acting without any cognizable predicate, i.e., arbitrarily and capriciously, the deterrent purpose of the exclusionary rule must take into account the appropriateness of the police response.

The distinguishing element between the instant cases rests both in the predicate for the police conduct, and more important, in the intensity of the police confrontation. On the records before us, we conclude that the police officer in Williams responded in a reasonable manner while the officer in Stewart did not.

The events leading to the discovery of Donald Williams' illegal possession of a revolver were related at the suppression hearing by Patrolman Paul Glennan. On March 1, 1974, at approximately 5:15 p.m., while he was on duty at the 26th Precinct, Officer Glennan received a telephone call from an unknown informant. The caller stated that he had knowledge that a person standing in front of the Super Fly Bar was 'packing a weapon'. When asked for a description the informer indicated that the person was a 'little dude' wearing a black overcoat and black hat and his name was Donald. Officer Glennan then pressed the caller for his identity, but he refused to identify himself.

As a result of this call, Officer Glennan and several other plainclothesmen proceeded immediately to the Super Fly Bar in an unmarked car. On arrival Officer Glennan observed the defendant, exactly as described, standing on the sidewalk in front of the bar. There were a few other people in the vicinity but none fitting the description of the man with a gun. Officer Glennan recognized this individual as Donald Williams, a person he had questioned only a few days before and on several previous occasions.

As Officer Glennan approached the defendant he observed a bulge in the left side of his overcoat. When he got close to Williams, Officer Glennan told him not to move and proceeded to pat him down. By virtue of his previous experience in numerous weapons arrests, Officer Glennan determined that the source of the bulge was a gun in the defendant's left breast pocket. He reached into the pocket and extracted a loaded revolver. Williams was immediately placed under arrest.

After his motion to suppress was denied, Donald Williams pleaded guilty to possessi of a weapon as a felony. The Appellate Division affirmed the conviction with one Judge dissenting. We agree and would affirm.

The factual events in People v. Stewart are somewhat similar; however when analyzed in accordance with De Bour-La Pene principles, there are several critical differences which compel the opposite result. In Stewart, the arresting officer, Joseph Castellano, testified that on April 1, 1973 he was in uniform on radio motor patrol when at about 5:00 p.m. he received a radio message from his precinct, reporting that a man with a gun, described as a male Negro wearing a long green coat, was in front of 101 South Oxford Street. The officer proceeded to that street and was traveling the wrong way down a one-way street when he observed the defendant with four or five other males. Patrolman Castellano called for Stewart who was wearing a long green coat to stop. The other persons continued walking but Stewart began to walk toward the officers. As he was doing so, Officer Castellano noticed that defendant's coat was unbuttoned and observed a bulge in defendant's left front trouser pocket.

The officer testified that, despite all his experience as a policeman and a soldier, he could not possibly have known that the pocket bulge was a gun. Indeed, as it turned out, it was not a gun--nevertheless, without any sort of inquiry the officer proceeded to touch the outside of the bulged pocket and felt a hard cylindrical object. Although the officer knew that the object he felt was not a gun he reached into Stewart's pocket and removed eight .38 caliber bullets. The defendant was then frisked and the policeman uncovered a loaded revolver which he found in a shoulder holster under the defendant's coat. The defendant was immediately arrested.

Defendant Stewart's argument that the search violated his constitutional rights was rejected by the suppression court which believed that it constituted a valid stop and frisk (CPL 140.50). The Appellate Division affirmed with one Judge dissenting. We disagree with the majority of that court and would reverse.

The primary issue is whether or not the police possessed sufficient knowledge at the outset to sustain the subsequent intrusions on the privacy of the individuals accosted (People v. De Bour, 40 N.Y.2d 210, 224, 386 N.Y.S.2d 375, 385, 352 N.E.2d 562, 572, Supra; People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294). Looking at the predicate of the police action first we note that while both arrests were precipitated by anonymous telepho reports of a man with a gun, there are critical differences between the cases...