Summary
In Russ, the information that defendant had been seen passing a handgun to another occupant of the car came from an anonymous source.
Summary of this case from People v. LarkinsOpinion
Argued December 13, 1983
Decided January 10, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, EDWARD J. GREENFIELD, J., EVE PREMINGER, J.
Barry Stendig and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney ( Karen M. Muller and Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, defendant's motion to suppress should be granted and the indictment dismissed.
The officer who frisked defendant and took a pistol from the area of her waistband had received a radio report of an anonymous 911 call in which the informant stated that he had seen a woman in a blue car with a white top parked in front of 123 West 112th Street pass a handgun to a man seated in the car with her. Finding defendant in a car meeting the description and the specific location indicated by the informant provided reasonable suspicion that a crime had occurred or was about to occur and warranted the officer's request that she step out of the car for inquiry ( Pennsylvania v Mimms, 434 U.S. 106; People v Landy, 59 N.Y.2d 369, 376).
It did not, however, justify the frisk. A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion is armed and may be dangerous ( People v Carney, 58 N.Y.2d 51; People v Benjamin, 51 N.Y.2d 267). Here, there was no such predicate either in the information received, which indicated that defendant had given a gun to the man but provided no basis for inferring that she had another or that it had been returned to her, or in what occurred during the officer's encounter with defendant. No inquiry was made of defendant so she neither refused to answer nor answered evasively (see People v Klass, 55 N.Y.2d 821); no suspicious bulge was perceived in her clothing (cf. People v De Bour, 40 N.Y.2d 210, 213); no furtive movements were made by her (see People v Benjamin, 51 N.Y.2d 267, supra); her appearance and movements were not concealed by darkness (see People v McLaurin, 43 N.Y.2d 902, revg on dissent 56 A.D.2d 80, 84). Bearing in mind the weakness of information received from an anonymous source ( People v De Bour, 40 N.Y.2d 210, 224, supra; cf. People v Moore, 32 N.Y.2d 67, cert den 414 U.S. 1011), we conclude that the fact that the car was of the described colors and in the specified location authorized the officer to address investigative inquiries to its woman occupant but not to frisk her.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
Order reversed, etc.