State v. Lakomy

• Citation: 315 A.2d 46,126 N.J.Super. 430
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Juan LAKOMY, Defendant-Respondent.
• Decision Date: 01 February 1974
• Court: New Jersey Superior Court – Appellate Division

Page 430

126 N.J.Super. 430

315 A.2d 46

STATE of New Jersey, Plaintiff-Appellant, v. Juan LAKOMY, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 9, 1973.

Decided Feb. 1, 1974.

Joseph D. J. Gourley, Passaic County Prosecutor, for plaintiff-appellant (Dante P. Mongiardo, Asst. Prosecutor, of counsel and on the brief).

Dominic Cavaliere, Paterson, for defendant-respondent.

Before Judges HANDLER, MEANOR and KOLE.

The opinion of the court was delivered by

HANDLER, J.A.D.

Defendant was charged with possession of an automatic revolver without first having obtained a permit, contrary to N.J.S.A. 2A:151--41(a). On motion the evidence was suppressed, and the State was granted leave to appeal that interlocutory order.

The only testimony at the hearing on the motion to suppress was that of the arresting police officer. He stated that on October 20, 1972 he was alone on patrol duty when he received a radio call from his dispatcher stating that there was a report of a man with a gun at the Alfred Heller Heat Treating Company. He arrived simultaneously with another police officer who had also been dispatched to the scene. At the factory the policemen were met by an officer of the company. This individual related that an employee had told him that Juan Lakomy, the defendant, had a gun. The officers were led to the washroom and defendant was specifically pointed out to them.

Defendant, with his back to the officers, was washing his hand. Both officers approached from the rear. Each officer grabbed one of defendant's arms, stated that they were police officers, and gave defendant a pat-down search and found a pistol tucked under defendant's shirt. The officers had not seen the gun before defendant was searched. Defendant was arrested after the gun was found.

What occurred here was a 'stop and frisk.' The inquiry in this context is whether 'the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the brief' that the action taken was appropriate.' Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868 1880, 20 L.Ed.2d 889 (1968). As stated in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972):

In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d at 906.' The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. (At 145, 92 S.Ct. at 1923.)

In a variant situation in State v. Dilley, 49 N.J. 460, 468, 231 A.2d 353 (1967), an experienced police officer in a high crime area came upon two strangers who were lingering in a parking lot at 3 a.m. and who attempted to leave when the officer arrived. It was held that the officer had a right to stop and to frisk the men for his own protection. The court noted (at 467, 231 A.2d at 356) that such a stop and frisk 'is not to be viewed as a formal arrest requiring probable cause.' It went on to state:

The fourth amendment does not speak in absolute terms but strikes a balance between the interests of the individual in being free from police interference and the interests of society in effective law enforcement. Thus in terms it protects the people's right to security against 'unreasonable' searches and seizures. In determining reasonableness, weight must of course be given to all of the pertinent factors including the basis of the suspicion on the part of the police and the nature and extent of the restraint on the individual. (At 468, 231 A.2d at 357.)

Under this standard it has been recognized that, in situations involving aggravated circumstances presenting the strong possibility of some physical danger, a police officer may promptly seek and seize a weapon believed to be in a person's possession. United States v. Pleasant, 469 F.2d 1121 (8 Cir. 1972); State v. Dennis, 113 N.J.Super. 292, 273 A.2d 612 (App.Div.), cert. den. 58 N.J. 337, 277 A.2d 394 (1971); State v. D'Orsi, 113 N.J.Super. 527, 274 A.2d 586 (App.Div.), certif. den. 58 N.J. 335, 277 A.2d 392 (1971); People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581 (Ct.App.1967), app. dism. 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968). This type of situation may be compared instructively with that which involves suspicious conduct but does not project a threat of physical danger which may require self-protection, as in In re State in the Interest of D.S., 63 N.J. 541, 310 A.2d 460, reversing on dissenting opinion below 125 N.J.Super. 278, 310 A.2d 506 (App.Div.1973). It may be further contrasted with full searches which are incidental to an actual arrest for relatively minor offenses. E.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

The court recognized in Terry that an officer may conduct a limited protective search, not to discover evidence but to allow him to pursue his investigation without fear of violence when he believes that 'the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others * * *.' 392 U.S. at 24, 88 S.Ct. at 1881. See also Adams v. Williams, Supra 407 U.S. at 146, 92 S.Ct. 1921. Here the information supplied was that defendant was armed with a gun. If such information were acceptable, it would justify a reasonable belief that defendant might be dangerous and that prompt protective measures, such as a frisk or a pat-down search, were dictated in order to complete an investigation of the complaint without creating a serious risk of physical injury.

Defendant's more pointed argument suggests that the information was not acceptable as a basis for the police action taken. He argues, in effect, that there could be no basis for the measures undertaken generated from the bare statement of the company executive, not otherwise corroborated. Consequently, he urges that the seizure of the weapon constituted an unconstitutional invasion of privacy.

Generally, some verification of an informant's disclosures of criminal activity, as well as a demonstration of his trustworthiness, is necessary in order to establish his credibility, so that such information may fairly and reasonably be assimilated as a proper basis for appropriate police action. Adams v. Williams, Supra; cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Different considerations obtain, however, when the informer is an ordinary citizen. There is as assumption grounded in common experience that such a person, regarded as a cooperative member of the general public, would in the ordinary course of events have no ties or connections with the underworld or the criminal element. He would be expected to be motivated by factors which are consistent with law enforcement goals. Consequently, an individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is undertaken. Erickson v. State, 507 P.2d 508 (Alaska Sup.Ct.1973); People v. Zimnicki, 29 Cal.App.3d 577, 105 Cal.Rptr. 614 (D.Ct.App.1972); Gaskins v. United States, 262 A.2d 810 (D.C.Ct.App.1970); People v. Davis, 10 Ill.App.3d 611, 295 N.E.2d 108 (App.Ct.1973); People v. Wayne, 9 IllApp.3d 344, 292 N.E.2d 186 (App.Ct.1972); People v. Arthurs, 24 N.Y.2d 688, 301 N.Y.S.2d 614, 249 N.E.2d 462 (Ct.App.1969).

The ...