Opinion
Argued October 21, 1975
Decided November 25, 1975
Appeal from the Supreme Court in the Second Judicial Department, NORMAN J. FELIG, J.
Richard A. Greenberg and William E. Hellerstein for appellant.
Eugene Gold, District Attorney (Harry Brodbar of counsel), for respondent.
Defendant pleaded guilty to the crime of attempted criminal possession of a weapon as a misdemeanor (Penal Law, § 260.05, 110.00) and was convicted on his plea by the Criminal Court, Kings County, following a hearing upon his motion to suppress a blackjack seized from him, and the denial thereof. The denial of the motion and the judgment of conviction were affirmed by a divided Appellate Term. This case presents the recurrent, often perplexing problem of evaluating police investigative activity in light of the mandates of the "stop and frisk" statute (CPL 140.50). We are called upon to determine whether the search, the second prong of the "stop and frisk" dichotomy, was justified following an originally proper stop of defendant and two others.
While on patrol in a "high crime, high narcotics" area one evening, Patrolman Robert Martin and his partner observed three men standing in the lobby of a building. When the officers proceeded to investigate, they noticed one of the men "holding a knife in his hand", standing against the right wall of the 10-foot-wide lobby while the defendant and another man were leaning against the opposite wall. The police officers entered the building and one of them called out "Police officer, drop the knife." The man holding the knife complied. Defendant then took several steps toward the door. Although there was no claim he was attempting to elude or evade the police, Officer Martin said "hold it" and at the same time extended his left hand, touching a "hard object" in defendant's right jacket pocket. He immediately placed the defendant against the wall and thrust his hand into the defendant's pockets, seizing a blackjack. Defendant was then placed under arrest.
On the record before us, there was no basis within the standards of the "stop and frisk" statute (CPL 140.50) for the search of defendant's person. After a valid stop, a police officer should demand an explanation of the suspect's conduct (CPL 140.50, subd 1). A search is subsequently warranted only if the officer "reasonably suspects" that he is in danger of physical harm (CPL 140.50, subd 3). This case might appear difficult to resolve since the officers, having observed the knife, initially acted on a reasonable suspicion that a robbery was in progress. At the hearing on the motion to suppress, however, Officer Martin, the only witness for the People, did not testify that he believed he was in danger nor did he state that the "hard object" which he felt upon accidently touching the defendant was or felt like a weapon. On the contrary, he did testify that the defendant was not doing anything suspicious before he took several steps toward the exit and, further, that defendant might have been the victim of the robbery which the officers suspected to be in progress. Under these circumstances, there was no "articulable foundation for the entrenchment upon individual liberty and privacy which a stop and frisk entails" (People v Johnson, 30 N.Y.2d 929, 930). The search was not based upon any reasonable suspicion articulated by the police officer that he was in fear of physical danger as required by CPL 140.50 (subd 3) (see, also, Terry v Ohio, 392 U.S. 1, 24). The fact that he felt a "hard object", which may have been a glasses case, comb or wallet, was an insufficient ground for such suspicion. No preliminary inquiry was made of the defendant as required by CPL 140.50 (subd 1) (see People v Rosemond, 26 N.Y.2d 101; cf. People v Hunter, 30 N.Y.2d 774, 776). The police possessed no information linking defendant to possession of a weapon (see People v Moore, 32 N.Y.2d 67, 72; Adams v Williams, 407 U.S. 143); and, furthermore, no exigent circumstances were present to justify the immediate intrusion into defendant's pockets (People v Taggart, 20 N.Y.2d 335, 342-343). In sum, the officer could point to no "particular facts" from which an inference could be drawn that defendant posed an imminent danger to him or his partner (People v Mack, 26 N.Y.2d 311, 316-317; Sibron v New York, 392 U.S. 40, 64).
In pertinent part CPL 140.50 provides:
"1. * * * a police officer may stop a person in a public place * * * when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
* * *
"3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer * * * reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons." (Emphasis added.)
The instant case is essentially the converse of the situation in People v Martinez ( 37 N.Y.2d 662). In Martinez, the initial stop was unlawful but the intervening circumstances attenuated the taint attaching to the stop. Here, the stop was proper but the subsequent police activity has not been shown to come within the confines of the "stop and frisk" law. The result here should dispel any impression that Martinez is to be construed as authority for the proposition that ignorance or misconception of the law on the part of the police will excuse noncompliance with statutory or constitutional mandates. (See concurring opns in People v Martinez, supra.)
Accordingly, the order of the Appellate Term should be reversed and the information dismissed.
There can be little doubt that a police officer may stop a person in a public place when he reasonably suspects that the person is committing, is about to commit, or has committed a felony. In conjunction with the stop, the officer may, if he reasonably suspects that he is in danger of physical injury, search the suspect for any weapons or instrumentalities capable of producing serious physical injury. (CPL 140.50, subd 3.)
The test to be applied when assessing the validity of a stop and frisk is whether "the facts available to the officer at the moment of the seizure * * * [would] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate". (Terry v Ohio, 392 U.S. 1, 21-22; People v Moore, 32 N.Y.2d 67, 69, cert den 414 U.S. 1011.) Put another way, the court must ascertain whether the initial stop was reasonable and whether the acts taken in consequence of the stop were appropriate responses to the situation. (People v Rosemond, 26 N.Y.2d 101, 105.)
In this case the officer and his partner had been patrolling at night in a high crime area usually given "special attention" by police anticrime patrols. The two officers observed the defendant and two other men standing in the hallway. Upon approaching them, the officers observed one of the men holding a knife. On reaching the scene, the police did what good police work required, and that is to neutralize the weapon and undertake an orderly investigation of what they reasonably believed was in progress — a robbery. Thus, the police demanded that the man holding the knife drop his weapon. As the armed man complied with the police order, the defendant took several steps toward a doorway. One of the officers told him to stop and reached towards the defendant. Since accepted police practice required that all persons on the scene be detained for questioning, the officer could properly demand that the defendant stop. When the officer put out an arm as the defendant approached, he was applying the minimum amount of physical force necessary to effectuate his command. Accordingly, the initial stop of the defendant was reasonable.
At the time of this stop, the situation was entirely obscure. The officer could reasonably believe that an armed robbery was in progress. However, he did not yet know which of the men were victims and which were perpetrators. He did know, however, that one dangerous weapon was in the immediate vicinity on the floor of the hallway and could reasonably fear that other weapons, as yet concealed, were close at hand. When the officer reached toward the defendant to prevent him from leaving the scene, he touched a "hard object" in the defendant's coat pocket. Was it not reasonable at that moment for the officer to believe that the "hard object" was another weapon? Certainly it was not necessary for him then to make polite inquiries under such circumstances. The situation authorized a limited intrusion into the defendant's pocket to discover the nature of the "hard object". (People v Moore, 32 N.Y.2d 67, 71, cert den 414 U.S. 1011, supra; People v Mack, 26 N.Y.2d 311, 317, cert den 400 U.S. 960; see Adams v Williams, 407 U.S. 143, 146.) This, of course, did not constitute a full-blown search. It was limited to the particular coat pocket. Only upon finding the "hard object" to be a blackjack did the officer conduct a full-body search, leading to the discovery of two special police shields unlawfully in the possession of the defendant. (Cf. Terry v Ohio, 392 U.S. 1, 30, supra.)
Since I conclude that the actions of the police officer were reasonable under the circumstances, the motion to suppress was properly denied, and, accordingly, I would affirm the order of the Appellate Term.
Chief Judge BREITEL and Judges JONES, WACHTLER, FUCHSBERG and COOKE concur with Judge GABRIELLI; Judge JASEN dissents and votes to affirm in a separate opinion.
Order reversed, etc.