Opinion
October 6, 1994
Appeal from the Supreme Court, New York County (Mary Davis, J.).
Defendant was observed by two police officers trying on gun holsters at a martial arts supply store. They watched defendant leave the store carrying a bag, walk to his car (which was illegally parked in a bus lane) and place the bag in the trunk. According to the testimony of the arresting officers, which was in all respects credited by the court, defendant, upon being asked what he had purchased, disclosed the contents of the bag, stated that he was not employed as a police or correction officer and offered to show them the holster. One of the officers testified that he observed "something that didn't look like it belonged in the left side of his waistband" while defendant was in the process of removing the bag from the trunk of his car. The officer immediately lifted defendant's T-shirt, revealing the handle of a gun. A loaded, .25 caliber semi-automatic pistol was recovered from defendant, who was placed under arrest. Defendant subsequently made certain statements with respect to his possession of the weapon that were ultimately suppressed.
Defendant was charged with two counts of criminal possession of a weapon in the third degree. Following a combined Mapp/Huntley hearing on defendant's motion to suppress the gun and his post-arrest statements, Supreme Court ruled that the officers had two valid bases to make an inquiry: the purchase of the holster (People v. Samuels, 50 N.Y.2d 1035, cert denied 449 U.S. 984) and the illegally parked vehicle. The court further found that the defendant's responses to inquiry concerning whether he was a law enforcement official, when taken together with the observation of some unspecified object in the left side of defendant's waistband, provided the officers with reasonable suspicion that criminal activity was afoot. Therefore, defendant's motion to suppress the gun was denied.
Following People v. Samuels (supra) and its progeny, the purchase of a gun holster provided a valid basis for the police to approach defendant, identify themselves, and make inquiry. The facts as found by Supreme Court, however, do not afford grounds for reasonable suspicion that defendant had committed or was about to commit a crime (see, People v. De Bour, 40 N.Y.2d 210, 223). Defendant's statement that he is not involved in law enforcement and the officers' observation of an unidentified object in defendant's waistband, even viewed together with his possession of a holster, do not constitute reasonable suspicion of criminal activity. Although the police, upon detaining defendant, were entitled to conduct a limited, protective pat down or frisk based upon a reasonable fear for their physical safety (see, People v. Ventura, 139 A.D.2d 196, 206), the record contains no such expression of concern by either officer. Unlike People v. Samuels, this case involves no behavior by a suspect which could be considered remotely menacing (supra, at 1037 [concern for physical safety inferred from the defendant's refusal to remove his hand from his pocket]). To the contrary, the testimony of the arresting officers establishes that defendant was most cooperative, volunteering to show them the object that aroused their suspicion.
Absent in this case is "`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'" (People v. Ventura, supra, at 208; see also, People v. Prochilo, 41 N.Y.2d 759, 761), without which the search of his person cannot be justified. As this Court observed in People v. Barreto ( 161 A.D.2d 305, 307, lv denied 76 N.Y.2d 852), "Even if [the officer] had testified that he saw a bulge in defendant's waistband, such observation alone would not have satisfied the People's burden of proving a reasonable suspicion that defendant was committing a crime" (compare, People v Benjamin, 51 N.Y.2d 267 [radio transmission advising of men with guns at specific location]; People v. Prochilo, supra [complete outline of gun discernable]).
Finally, the search conducted in this case exceeds the permissible interference of a protective search. "The narrow scope of the intrusion authorized during a protective pat-down may not exceed what is necessary to ascertaining the presence of weapons" (People v. Diaz, 81 N.Y.2d 106, 109). Therefore, even if the police interference with defendant could be justified as a Terry (Terry v. Ohio, 392 U.S. 1) stop, the ensuing search was nevertheless improper.
Concur — Rosenberger, J.P., Ellerin, Ross, Rubin and Williams, JJ.