People v. Taggart

• Decision Date: 07 July 1967
• Parties: , 229 N.E.2d 581 The PEOPLE of the State of New York, Respondent, v. Thomas TAGGART, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

283 N.Y.S.2d 1

20 N.Y.2d 335, 229 N.E.2d 581

The PEOPLE of the State of New York, Respondent, v. Thomas TAGGART, Appellant.

Court of Appeals of New York.

July 7, 1967.

F. Samuel Giugliano, Ozone Park, for appellant.

Thomas J. Mackell, Dist. Atty. (Joseph F. Lisa, Flushing, of counsel), for respondent.

BREITEL, Judge.

Defendant, who was 18 years old at the time of his arrest, appeals from a determination adjudging him a youthful offender on his plea of guilty. He was arrested for possession of a pistol by a detective who had been alerted by an anonymous telephone call. A motion to suppress the evidence was denied after a hearing in Criminal Court, Queens County (Schreckinger, J.). Thereafter, defendant pleaded guilty and was committed to Elmira Reception Center. The Appellate Term, Second Department, affirmed the conviction without opinion, one Justice dissenting.

Defendant contends that the seizure of the pistol was illegal because the arresting detective did not have a warrant and did not have 'reasonable grounds', prior to the search and arrest, to believe that a crime was being committed in his presence by defendant (Code Crim.Proc. § 177).

It is concluded that while defendant may be correct that the sources of the detective's belief that defendant possessed the pistol did not constitute 'reasonable grounds' for the search and the subsequent arrest, nevertheless, the search was valid under the 'Stop and Frisk' amendment to the Code of Criminal Procedure (§ 180--a, eff. July 1, 1964). The search at issue here occurred on December 2, 1964. The detective had at least a reasonably based suspicion that defendant was committing a crime and was, therefore, entitled to 'stop' him. Moreover, the detective was also warranted in suspecting that the defendant possessed a dangerous weapon which threatened the life of the detective as well as others in the immediate vicinity of defendant. Consequently, the seizure of the weapon was proper and the determination should be affirmed.

The detective, Richard Delaney, was the only witness at the hearing on the motion to suppress. He testified that on the day of the arrest he received an anonymous telephone call at the police station informing him that 'there was a male, white youth on the corner of 135th and Jamaica Avenue * * * (who) had a loaded 32 calibre revolver in his left hand jacket pocket'. The caller also stated that the youth was 'eighteen', had 'blue eyes, blond hair' and was wearing 'white chinotype pants'.

Delaney then proceeded to that location and observed from across the street an individual who 'matched perfectly' the description given to Delaney by the informer. The youth (defendant) 'was standing in the middle of a group of children that had just finished bowling'. Thereupon, Delaney crossed the street, 'took him (defendant) by the arm and put him against the wall and took the revolver out of his left-hand jacket pocket'. Delaney did not notice any bulge in the defendant's pocket prior to the search as the weapon 'was inside the lining of the jacket'.

On cross-examination, Delaney testified that he had never before arrested defendant and that he had never seen him in the neighborhood. The court concluded that: 'A gun which is loaded is a very dangerous instrument, and the officer in his discretion as an officer had a perfect right, in order to protect himself and protect everybody else in the circumstances. Having reasonable grounds to believe this was the defendant who had the gun he had a perfect right to search him at the time.'

Arguably, under People v. Malinsky, 15 N.Y.2d 86, 93--94, 262 N.Y.S.2d 65, 72--73, 209 N.E.2d 694, 699--700, and People v. Coffey, 12 N.Y.2d 443, 452, 240 N.Y.S.2d 721, 726, 191 N.E.2d 263, 266, cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612, Delaney did not have 'reasonable grounds for believing' that defendant possessed a pistol. The information received from the anonymous caller was not substantiated by 'the informer's own character and reputation' or by the 'separate, objective checking of the tale he tells', other than confirmation of the fact that defendant was standing at 135th Street and Jamaica Avenue (People v. Coffey, 12 N.Y.2d 443, 452, 240 N.Y.S.2d 721, 726, 191 N.E.2d 263, 267, supra). Even considering the exigent circumstances, then, defendant would be correct that the search was illegal if it can be justified only by his arrest (see People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694, supra; cf. People v. Teams, 20 A.D.2d 803, 248 N.Y.S.2d 477, apps. dsmd. 14 N.Y.2d 943, 252 N.Y.S.2d 338, 200 N.E.2d 875; 25 A.D.2d 496, 267 N.Y.S.2d 190, affd. 18 N.Y.2d 835, 275 N.Y.S.2d 841, 222 N.E.2d 603).

The question then remains whether the search was valid under the 'Stop and Frisk' law, section 180--a of the Code of Criminal Procedure, which reads:

'1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of the crimes specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions.

'2. When a police officer has stopped a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.'

This court recently upheld the constitutionality of section 180--a in People v. Peters, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, ¹ and People v. Sibron, 18 N.Y.2d 603, 272 N.Y.S.2d 374, 219 N.E.2d 196. ¹

In the Peters case as in People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32, cert. den. 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568, the 'problem' (i.e., the applicability of the statute) was divided into 'two stages: the legality of the detention and the legality of the frisk' (18 N.Y.2d, supra, p. 242, 273 N.Y.S.2d, p. 220, 219 N.E.2d, p. 597). With respect to the 'detention' involved in the instant case, it seems clear that Delaney had at least a reasonable suspicion that defendant was committing a crime when he first observed defendant from across the street. As Delaney testified, the description of defendant given to him by the informer matched 'perfectly' with his own observations. To that extent, then, the information was correct, and this substantiation justified Delaney's suspicion that the remainder of the information might also be correct. In acting upon this assumption, Delaney was 'exercising a reasonable and necessary police power for the prevention of crime and the preservation of the public order'--a power which was recognized at common law and has now been codified in section 180--a (People v. Peters, 18 N.Y.2d, supra, p. 243, 273 N.Y.S.2d, p. 221, 219 N.E.2d, p. 598).

This case raises a very serious problem which has not yet been faced directly under the newly evolved rules excluding evidence obtained unlawfully under the principle in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. There are exigencies affecting life, limb, or grave property damage in which the police receive information of crime, not sufficient to establish probable cause for arrest and incidental search, and yet which, to any reasonable man, demand the taking of police action to prevent serious harm. In such cases it is not enough to say that nothing should be done, or that if something is done, the resultant evidence should be suppressed. To do nothing is to succumb supinely to serious injury to members of the public or to the State itself, sincerely believed to impend, particularly as the test for action is supposed to be what a reasonable man would do under the circumstances (see Ker v. State of California, 374 U.S. 23, 34--35, 83 S.Ct. 1623, 10 L.Ed.2d 726; Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 92 L.Ed. 436). To tolerate unconstitutional action as a matter of necessity, as some argue, but then to reject use of the evidence obtained, is hardly a proper way to justify illegal conduct as necessary, on the one hand, but to limit, on the other hand, the consequences of those actions as illegal. Needless to add, the serious problem is suggested only in cases involving serious personal injury or grave irreparable property damage and not by the problems associated with the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as narcotics violations, prostitution, larcenies of the ordinary kind, and the like. In this case a loaded pistol was involved. And one could hypothesize parallel cases involving explosives, poisons, or the larceny of an irreplaceable classic work of art. The presence of the suspect among a group of children is a particular circumstance suggesting that the occasion was not one in which a preliminary inter-rogation and perhaps a limited frisk before search was indicated, if the safety of the children or the police officer was to be respected. For the police to have ignored the information received is not an acceptable thesis, despite the anonymity and, therefore, the undetermined reliability of the source.

The discussion is not whether exigent circumstances justify a departure from constitutional limitations. That view is impermissible. The point is that the Constitution forbids 'unreasonable' searches and what is reasonable is determined by the circumstances and the exigencies are not to be ignored (see Camara v. Municipal Ct., 387 U.S. 523, 538--539, 87 S.Ct. 1727, 18 L.Ed.2d 930).

With one exception, the decisions of this court passing upon the nature or quantum of reasonable suspicion which will suffice to support the temporary detention of a suspect (either...