People v. Williams

• Decision Date: 24 February 1981
• Citation: 79 A.D.2d 147,436 N.Y.S.2d 15
• Parties: The PEOPLE of the State of New York, Respondent, v. David WILLIAMS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 15

436 N.Y.S.2d 15

79 A.D.2d 147

The PEOPLE of the State of New York, Respondent, v. David WILLIAMS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 24, 1981.

John Van Der Tuin, New York City, of counsel (William E. Hellerstein, New York City) for defendant-appellant.

Clare McCue, New York City, of counsel (Jerrold Neugarten, Asst. Dist. Atty., New York City, with her on the brief, Robert M. Morgenthau, Dist. Atty., New York City) for respondent.

Before MURPHY, P. J., and SULLIVAN, CARRO and SILVERMAN, JJ.

SULLIVAN, Justice.

We are asked to determine the propriety of a stop and frisk based upon the observation of a coat pocket bulge. Trial Term, after a hearing at which Police Officer Thomas Saville and defendant were the only witnesses, denied suppression.

On November 25, 1973, a Saturday night, Officer Saville, with two other officers, was assigned to an anti-crime unit. At about 9:30 that evening the three officers, in plain clothes and in an unmarked police van, were stopped on Pleasant Avenue near the northeast corner of 120th Street, from where they observed a 1974 Lincoln Continental parked on 120th Street, about seventy-five feet from the intersection. Inside the car were three males, one in the driver's seat, and two, including defendant, in the rear passenger seat.

Officer Saville observed the occupants of the car engaged in conversation and looking toward a building as they spoke. When, after approximately fifteen minutes, the men left their automobile and started to cross 120th Street, the officers decided "to check their license and registration, things like that." They drove the van around the corner and pulled alongside the three men in the street. From his seat in the van Officer Saville observed a bulge in the right-hand pocket of defendant's almost ankle-length overcoat. The bulge "looked ... like it would be a revolver", because of "(t)he way it was in (his) pocket, the way his pocket was hanging. It had a bulge, draped like something heavy was in it." The bulge was described as being about three to four inches. Thereupon Officer Saville jumped from the van, grabbed defendant's pocket, felt a gun, and removed a .38 caliber revolver. Defendant was arrested and eventually pleaded guilty to the crime of criminal possession of a weapon in the third degree.

Defendant's version of the incident differed substantially. The court credited the officer's testimony and, finding justification for a stop and frisk (CPL § 140.50), denied suppression. Even crediting the officer's story fully, however, we cannot find a basis for a reasonable suspicion of criminal activity to justify a frisk under CPL § 140.50(3).

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, 392 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. DeBour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562.) Reasonableness is an amorphous concept. Hence, the propriety of police conduct in a citizen street 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.)

At least three factors warrant consideration in determining the constitutionality of a police officer's seizure of a handgun:

Was there proof of a describable object or of describable conduct that provides a reasonable basis for the police officer's belief that the defendant had a gun in his possession? Was the manner of the officer's approach to the defendant and the seizure of the gun from him reasonable in the circumstances? Was there evidence of probative worth that there had been a pretext stop and frisk or that the police were otherwise motivated by improper or irrelevant purpose? (People v. Prochilo, 41 N.Y.2d, supra at 761-762, 395 N.Y.S.2d 635, 363 N.E.2d 1380.)

The actions of defendant and his companions prior to the officers' approach were, at most, equivocal. As near as can be ascertained three men sat in a late-model car for fifteen minutes, looked at a building, and finally left the car. Notwithstanding Officer Saville's testimony that the area is noted for muggings, robberies and narcotics, ¹ such conduct does not justify a conclusion that they were about to embark on a criminal enterprise, ² and certainly would not suggest that they were armed. (See People v. Sobotker, 43 N.Y.2d 559, 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218; People v. Julian, 43 N.Y.2d 733, 401 N.Y.S.2d 785, 372 N.E.2d 572; see, also, People v. Simmons, 58 A.D.2d 524, 395 N.Y.S.2d 188; People v. Batino, 48 A.D.2d 619, 367 N.Y.S.2d 784.) "(I)nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand." (people v. dEbour, 40 N.Y.2d, supra at 216, 386 N.Y.S.2d 375, 352 N.E.2d 562.)

Of course, a police officer, despite the absence of any concrete indication of criminality, "may approach a private citizen on the street for the purpose of requesting information" if he has "some articulable reason sufficient to justify the ... action." (People v. DeBour, 40 N.Y.2d, supra at 213, 386 N.Y.S.2d 375, 352 N.E.2d 562.) The stop, however, must not be "the product of a mere whim, caprice or idle curiosity." (People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39.)

Officer Saville testified that after the three men exited from the car together the officers decided to make a license and registration check. It should be noted, however, that such a check is permissible only when an officer reasonably suspects that a violation of the Vehicle and Traffic Law has occurred or when it is conducted pursuant to nonarbitrary, nondiscriminatory, uniform procedures for detecting violations. (People v. Sobotker, 43 N.Y.2d, supra at 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, supra.) Here, the officers had never seen the automobile in operation; it was parked before they arrived at the scene. ³

A police officer is authorized to stop and detain forcibly if he entertains a reasonable suspicion that a person has committed, is committing, or is about to commit a felony or misdemeanor (CPL § 140.50(1); see, also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, supra; People v. DeBour, 40 N.Y.2d, supra at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Cantor, 36 N.Y.2d, supra at 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872), and to frisk if he reasonably suspects that he is in danger of physical injury (CPL § 140.50(3); People v. DeBour, 40 N.Y.2d, supra at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562.) Not only does the evidence fail to show any antecedent conduct evincing criminality on the part of defendant and his companions, it lacks "proof of a describable object" from which the officer could conclude that defendant had a gun. All he could see was a bulge in defendant's pocket. To contrast, in the two cases where suppression was denied in the trilogy of cases comprising Prochilo, 41 N.Y.2d 759, 395...