holding that "on a motion to suppress, the challenged police conduct can be sustained only by proof that the sender actually possessed the requisite knowledge or that the personal observations of the receiving officer justified the search"Summary of this case from People v. Cosme
Submitted September 20, 1978
Decided December 1, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, RICHARD J. DARONCO, J.
Morton N. Wekstein for appellant.
Carl A. Vergari, District Attorney (John R. Dinin and Anthony J. Servino of counsel), for respondent.
A jury convicted the defendant of unlawful possession of a weapon (Penal Law, § 265.05, subd 2), a felony, and unlawful possession of a weapon (Penal Law, § 265.05, subd 3), a misdemeanor. At a pretrial hearing, defendant's motion to suppress was denied. The Appellate Division found the evidence offered at the suppression hearing insufficient to justify the challenged police action, and, holding the appeal in abeyance, remitted the case for a rehearing, giving the People the opportunity to offer further evidence. After the rehearing the lower court adhered to its initial determination, and the Appellate Division affirmed both the order denying the motion and the judgment of conviction. The primary issue is whether it was proper for the court to remit the case for a second hearing.
Patrolman Michael Bassano of the Port Chester Police Department, the only witness called for the People at the first suppression hearing, testified that while on duty at 11:30 P.M. on January 23, 1973 he rang police headquarters from a call box, and spoke to the Desk Sergeant, Roger Arlotta. The sergeant informed him that he had received a telephone call from the Depot Tavern warning of a possible gun battle in the vicinity of the tavern involving the Tribe Motorcycle Club. Bassano was ordered to meet a Lieutenant Sabia at the railroad parking lot across the street from the Tribe clubhouse, which was located two doors away from the Depot Tavern. Upon his arrival, Bassano was ordered to take a position with two fellow officers on the roof of the Port Chester Auto Driving School, adjacent to the parking lot. Other officers were stationed in nearby patrol cars.
After 10 or 15 minutes of observation from the rooftop, Bassano saw two or three automobiles and two motorcycles, carrying a total of about seven males, arrive at the scene. These 7 men were met by approximately 10 others who exited the clubhouse. The entire group then began walking toward the Depot Tavern. Although no suspicious activity was observed, nor any weapons seen, Lieutenant Sabia ordered his men to "get down there". Bassano descended to street level and proceeded to frisk two or three of the "suspects", who offered no resistance. No weapons were discovered. Bassano then frisked defendant and felt a hard object under his jacket, a .38 calibre revolver. Bassano seized the weapon which, although registered in Connecticut was unregistered in New York. Immediately he handcuffed defendant to a parking meter and conducted a full-blown search which revealed a blackjack hidden in defendant's boot. Bassano removed the boot and seized the blackjack.
At trial, Richard Garafola, a Tribe member, testified that several police officers were "lined down the street in the middle of the road with sawed off shotguns" while others frisked and searched club members, and that an in-depth search of the clubhouse was conducted. Defendant, who took the stand at trial, testified that the police made no inquiries prior to conducting the searches, and Sergeant Arlotta testified that besides defendant only one other person searched was found to be in possession of a weapon, a blackjack.
After defendant's convictions of the weapons charges the Appellate Division ( 50 A.D.2d 904, 905) ordered that "[a] new hearing should be held to afford the People the opportunity to produce Hechinger [the owner of the Depot Tavern who had informed Sergeant Arlotta of the possible gun battle involving the Tribe] and any other proof they may have to establish probable cause."
At the new hearing Hechinger testified that he had called the Port Chester Police Department from his home in Cos Cob, Connecticut, and that in his telephone conversation with Sergeant Arlotta he had merely relayed information which he had received a few minutes before from his bartender Danny Megan, who was working at the Depot Tavern that evening. Megan had warned Hechinger that certain Tribe members were causing a disturbance at the tavern, and that he had heard a rumor that there might be a shootout. It is unclear from Hechinger's testimony whether Megan had seen any Tribe members carrying weapons.
Although summoned to testify at the rehearing, Megan failed to appear.
Preliminarily we note that the Appellate Division was correct in its initial determination that the People failed to justify the challenged search at the first suppression hearing. The People argue that the search of defendant was reasonable in light of the police communication received by Bassano because, although hearsay, the knowledge transmitted in a police radio communication is imputed to the receiver who is charged with that knowledge. But on a motion to suppress, the challenged police conduct can be sustained only by proof that the sender actually possessed the requisite knowledge or that the personal observations of the receiving officer justified the search (People v De Bour, 40 N.Y.2d 210, 223-224; People v Lypka, 36 N.Y.2d 210, 214; cf. People v Horowitz, 21 N.Y.2d 55, 60). Assuming in this case that the police communication prima facie supported the police action taken, it was nevertheless incumbent on the People to produce the sending officer Sergeant Arlotta at the suppression hearing. Yet, although both he and Hechinger, the informant, were apparently available to testify at the hearing, neither was called. The danger in relying solely on Bassano's hearsay testimony to sustain the legality of the search is underscored by the fact that his information was tenuously balanced on a pyramid of hearsay, the information having been passed from Megan to Hechinger to Arlotta to Bassano. It seems, too, that Megan's source may well have been nothing more than unsubstantiated rumor.
The correctness and applicability of this rule is not impugned by People v Mack ( 26 N.Y.2d 311, 315), as the dissent would have us believe. In Mack the testimony of the officer furnishing the information was not required at the suppression hearing, since the arresting officer, before taking any action, observed "furtive conduct" on the part of the defendant. By contrast Bassano saw nothing which could fairly be characterized as furtive conduct or suspicious activity.
Nor did Bassano's personal observations justify the search. The mere fact that he saw a group of Tribe members congregate outside their own clubhouse, and that they were dressed in a manner typical of motorcyclists, "in dungarees with, for the most part, black leather jackets or dungaree jackets" (dissent p 649) hardly establishes grounds sufficient to support the challenged police action. Indeed the utter lack of suspicious activity observed during the period of surveillance attenuates whatever justification the police communication might have furnished to conduct the search.
Having concluded that the Appellate Division was correct that the testimony at the initial suppression hearing was insufficient to justify the search, we must resolve the primary issue — whether the remission for a rehearing was proper. We hold that it was not.
It is the nature of our common-law system that a single precedent will rarely fully reveal its underlying principles. We can expect little more than a glimpse into a direction in which the law is moving. "Cases do not unfold their principles for the asking. They yield up their kernel slowly and painfully" (Cardozo, Nature of the Judicial Process, p 29). Rules emerge and are tested against varying factual backgrounds. Those rules which accomplish just and workable results survive and expand. But a principle should never be applied hastily without measuring its probable effect. It is the purpose of the rule, rather than the rule itself, to which we are ultimately bound.
The courts must take particular care that precedents creating procedures do not sweep too broadly. It is all too easy to adhere blindly to a procedure, forgetting its purpose. We decide the issue of whether or not there should have been a remission for additional proof within this framework.
The practice of granting a rehearing to afford the People the opportunity to present additional evidence was first established in People v Malinsky ( 15 N.Y.2d 86). In Malinsky at the suppression hearing, conducted solely to determine if the search and seizure was incident to a lawful arrest, the court erroneously denied defendant's motion for disclosure of a confidential informant, and ultimately denied the motion to suppress. On appeal we found the record insufficient to substantiate that either the informant was reliable or that probable cause existed independent of his communication. Although we did not articulate the reasons for ordering a further hearing, it is manifest that the People had failed to present the testimony of the informant because of the court's erroneous ruling. To deny the People a rehearing to present his testimony would have been to deprive them of a full opportunity to be heard. In addition other relevant testimony was also admissible at the rehearing since the People, misled by the ruling, might have declined to offer available testimony believing that sufficient evidence had already been presented (see, also, People v Verrecchio, 23 N.Y.2d 489).
The procedure established in Malinsky has found application in numerous subsequent cases (see, e.g., People v Hill, 22 N.Y.2d 686; People v Butterly, 25 N.Y.2d 159; People v McDonnell, 18 N.Y.2d 509). These decisions, however, do not reflect an abdication of reason or the slavish application of an entrenched procedure, for they are consistent with the emerging principle implicit in Malinsky — that the People should not be deprived of one full opportunity to present evidence of the dispositive issues involved at the suppression hearing. If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered so that the evidence may be presented. Thus where a motion to suppress was denied on the erroneous ground that the search was supported by search warrants, the case was properly remitted for a new hearing for a finding as to whether probable cause, independent of the warrants, justified the arrest and incidental search (People v Green, 33 N.Y.2d 496). Similarly, an error of law made at the suppression hearing that consent to the search was not at issue required remission for a rehearing for proof on that question (People v Whitehurst, 25 N.Y.2d 389). To hold otherwise would be to deny the People the opportunity for a full and fair hearing.
But having established this procedure for a sound reason, it would be wrong to assume that the People's right to a rehearing is without limitation. The practice should not be followed when its underlying principle is not served. Generally, where "no contention is made that the People had not had [a] full opportunity to present evidence * * * [t]here [is] no justification * * * to afford the People a second chance to succeed where once they had tried and failed" ( People v Bryant, 37 N.Y.2d 208, 211; but see People v Cardaio, 18 N.Y.2d 924 ). Denial of a rehearing under these circumstances accords with a system that offers a single opportunity for the presentation and resolution of factual questions. If such a practice were not followed, the defendant, having prevailed at the hearing, would be haunted by the specter of renewed proceedings. Success at a suppression hearing would be nearly meaningless, for a second and perhaps a third hearing, could later be ordered.
It is of equally great concern that a perfunctory remand would magnify the potential for abuse and injustice. "A remand with the benefit of hindsight derived from an appellate court opinion offers too facile a means for establishing probable cause after the event" (People v Hendricks, 25 N.Y.2d 129, 138). Tailoring the evidence at the rehearing to fit the court's established requirements, whether done unconsciously or otherwise, would surely be a considerable danger. A procedure which fails to shield a criminal defendant from abuses so inimical to the rights guaranteed him should not be tolerated.
Under certain circumstances, however, the risk of the introduction of distorted testimony at a rehearing is minimal. Thus a rehearing was ordered where information supporting a search was furnished by an interstate bulletin (People v Lypka, 36 N.Y.2d 210, supra) or by a communication from one division of a police department to another (People v Horowitz, 21 N.Y.2d 55, supra). In such cases the lack of familiarity and personal contact between the sending and receiving officers diminished the potential for distortion.
Today, we confront quite a different case, the sending and receiving officers being members of the same police department, and working closely with one another on a daily basis. The rationale of Lypka and Horowitz, which supported a remand for a new hearing, is therefore inapplicable. Nor were the People deprived of a full opportunity to present evidence at the initial hearing. No erroneous ruling interfered in any way with the People's opportunity to advance evidence to justify the challenged police activity. Although both Arlotta and Hechinger were available to testify at the initial hearing, the People were content to offer only the testimony of Patrolman Bassano which was legally insufficient to uphold the search. Having had a full opportunity to be heard, the People should not be heard again on the same issue.
Accordingly the order of the Appellate Division should be reversed and the indictment dismissed.
The majority, by its holding, is extending the rules developed in probable cause hearings to hearings where the question is reasonable suspicion for limited frisks of a suspect. It seems to be imposing a per se rule that in order for the police to establish reasonable suspicion to frisk they will invariably have to produce the person who informed them of criminal activity. While this sort of testimony may be necessary to establish probable cause, the rule should not be extended into the area of stop and frisk, where the infringement of a person's rights is so much less egregious.
Furthermore, in addition to establishing this hitherto unacceptable rule of law (People v Mack, 26 N.Y.2d 311, cert den 400 U.S. 960), the majority is denying the People an opportunity to comply with the new standard, ignoring a considerable body of law which we have established. There are many instances where we have allowed the People to produce further proof after reversing a finding of probable cause (see, e.g., People v Lypka, 36 N.Y.2d 210; People v Verrecchio, 23 N.Y.2d 489; People v Horowitz, 21 N.Y.2d 55; People v Cardaio, 18 N.Y.2d 924; People v Malinsky, 15 N.Y.2d 86). In each of these cases the initial determination of probable cause was made without testimony by the party who initially warned the police of possible criminal activity. In reversing we required further proof to establish probable cause, but gave the People an opportunity to meet the burden without summarily suppressing the evidence; and in each case determination of the appeal was withheld and the case remitted to nisi prius for further hearings on the motion to suppress, consistent with the opinion. By their decision today, the majority condemns use of this procedure without adequate explanation for the departure from the well-established prior law, resulting in further erosion of long-established judicial determinations dealing with justified and effective police procedures.
It is not necessary to here detail the circumstances prevailing in the above-cited Lypka, Verrecchio, Horowitz, Cardaio and Malinsky cases. The established principles there enunciated and followed for many years are legion and require no further elucidation. It will suffice if we quote from but one case, People v Horowitz ( 21 N.Y.2d 55, 60) wherein Judge VAN VOORHIS, writing for an unanimous court, stated:
"The controlling principle seems to be that it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest. This record does not show that any of the law enforcement officers had facts before them sufficient to indicate that this anonymous informer was reliable, or that the police had other information, not derived from the informer, which was sufficient, in itself, to constitute probable cause.
"Under the procedure adopted in People v. Malinsky ( 15 N.Y.2d 86, 96; 19 N.Y.2d 262) where we withheld determination of the appeal and remitted the case to the Supreme Court for a further hearing on the motion to suppress in order that it might be determined whether `the police actually received a tip from a dependable informer, or had evidence, apart from or in addition to the informer's communication, to establish probable cause for the arrests of the defendants', the determination of this appeal is withheld and the case remitted to the Supreme Court, New York County, for a further hearing on the motion to suppress in accordance with this opinion" (emphasis added).
The defendant was arrested on January 23, 1973, for unlawfully possessing two weapons, a fully loaded .38 caliber revolver and a blackjack. He moved to suppress the weapons, but following a hearing the County Court Judge found that the arresting officer had reasonable suspicion that a crime was being committed, and therefore the search which uncovered the weapons was authorized (CPL 140.50, subd 3). At the hearing there was testimony by Patrolman Bassano, the arresting officer, which established that his actions were the result of information received from fellow officers, Sergeant Arlotta and Lieutenant Sabia, who told him there had been a phone call warning the police of a shootout that night near the Depot Tavern. The court further found that the police were involved as a result of a tip from one Hechinger, a party known to the police as the owner of the Depot Tavern. There was also testimony that members of the Tribe Motorcycle Club frequented that tavern and that the defendant, a club member, knew and was known to Hechinger. There was extensive testimony describing conduct that could reasonably have been interpreted as foreshadowing the predicted shootout. Upon the basis of this testimony, the Trial Judge determined that Bassano was justified in relying on the information supplied by his fellow officer to find the reasonable suspicion necessary to frisk Havelka. In these circumstances it was not felt necessary to produce Hechinger to establish the reasonableness of the police actions.
The Appellate Division remitted the case for a further hearing, in order that Hechinger, the person who actually gave the information to the police, could testify and it could then be determined whether there was reasonable cause for the search. In doing so, that court concluded that Officer Bassano's testimony alone was insufficient in these circumstances, in the absence of testimony from the person who initially informed the police of the criminal activity. The majority of our court agrees with the Appellate Division to the extent that Bassano's testimony alone was insufficient and they substantially rely upon the rationale, in part, of People v Lypka ( 36 N.Y.2d 210, supra) and People v Horowitz ( 21 N.Y.2d 55, supra). However, those cases dealt with the issue of probable cause to conduct a full search, whereas we are here presented with a determination of whether there was reasonable suspicion that a crime is being committed, a situation where less evidence is required (People v Mack, 26 N.Y.2d 311, cert den 400 U.S. 960, supra). Thus it is clear that the majority is now extending the rule appropriate for probable cause cases to situations where only reasonable suspicion is required for the police to act. By reversing the procedural device utilized by the Appellate Division in its remittal (which, as noted, the Court of Appeals has sanctioned, and indeed itself ordered, on many occasions), the majority implicitly says that the more exacting rule has applied to frisks since its inception in People v Horowitz (supra). Such a concept cannot prevail and certainly is not the law, as is clearly delineated in People v Mack (supra), decided three years following Horowitz. People v Mack (supra) was a case where, as here, a limited frisk of defendant was conducted and a revolver was seized. The arresting officer testified as the sole witness at the suppression hearing that the basis for his suspicion was a tip from another officer. Although the officer who had described the defendant never testified, we nevertheless upheld the search. The holding was based on the description by an unidentified officer, his statement that there had been three burglaries in the area, and the "furtive conduct" of defendant and another going into two buildings briefly. These facts are no more or less supportive of a reasonable suspicion than the facts here, yet the court now requires that the person supplying the arresting officer with information testify as well. This was not necessary under the rationale of Mack, and the prosecutor who conducted the suppression hearing in this case had no reason at that time to doubt that the testimony presented at the hearing was sufficient.
As will be demonstrated, although remittal was not necessary, the procedure there adopted followed our holding in Lypka, infra, decided 10 months earlier.
In reply to the majority's attempt to distinguish Lypka and Horowitz on the ground that in this case the officer was a member of the same police department and working daily with Officer Bassano, we note that in Mack the officer was never identified.
The court's holding today will require exhaustive testimony whenever an officer discovers an illegally possessed weapon during a frisk, despite recognition that the infringement of a person's constitutional rights is minimal. Aside from the substantial question of whether this is mandated by the Constitution (see Terry v Ohio, 392 U.S. 1), this appeal is especially troublesome because the result wrongly assumes that the People had an opportunity for a full and fair hearing. Since the rule being established today is a new one, it is clear they did not.
I furthermore take exception to the comment that rehearings will allow evidence to be tailored to fit the guidelines announced. This is an assumption which has no foundation in fact. There is a possibility of abuse in any procedure, yet we live in a society where we expect integrity from public officials. To develop a rule of law on the assumption that the police and prosecutors will conform their testimony to fit within new standards unwarrantedly denigrates the judicial system and cheapens us all. I prefer to maintain the belief that our public servants support the law which they have sworn to uphold and enforce.
Having determined that the remittitur was proper, I now discuss the propriety of the search that led to the discovery of Havelka's loaded revolver. There is no need to establish probable cause for the search, since the limited frisk performed by Patrolman Bassano is authorized by CPL 140.50 (subd 3) if the officer reasonably suspected that he was in danger of physical injury. The testimony at the second suppression hearing clearly establishes that Patrolman Bassano had sufficient grounds for performing the frisk when he did.
If the frisk that uncovered the revolver was proper, the subsequent full search of defendant's person was incident to his arrest, and therefore the discovery of the blackjack was certainly supported by probable cause.
In relying on the testimony introduced at the second suppression hearing I do not intimate that the testimony at the first was insufficient to establish reasonable suspicion. In fact, it established that a named complainant had notified the police of criminal activity by members of a motorcycle gang who had had prior dealings with the police. Furthermore, the observations by the officers supported the suspicion that members of the gang had committed or were about to commit a crime (see People v Mack, 26 N.Y.2d 311, cert den 400 U.S. 960, supra). However, due to the above conclusion that the remand for a further hearing was proper, this discussion need not be confined to the testimony elicited at the first hearing.
Hechinger had called and informed the police that members of the Tribe Motorcycle Club were in and out of the tavern that night, that some of them had weapons, and that he had been informed there was going to be a shootout in the area that night. He was known to the police as a local businessman whose establishment was located next to the Tribe headquarters. Acting on this tip, the police placed the area under surveillance. Within 20 minutes several events took place to corroborate the report made by Hechinger. Two or three cars and two motorcycles drove up to the Tribe headquarters. Seven or 8 young males left their vehicles and were joined by approximately 10 members exiting from the Tribe headquarters. This group, numbering 15 or 20, moved in concert down the street toward the Depot Tavern. They were dressed in dungarees with, for the most part, black leather jackets or dungaree jackets bearing the Tribe insignia. Given the additional factors that it was around midnight on a January night and that a telephone call had alerted the police to a shootout by members of the motorcycle club in the area, there were reasonable grounds to suspect that some or all members of the group were committing the crime of weapons possession.
When the small group of policemen descended to the street to confront the 15 or 20 Tribe members who were believed to be on their way to a shootout, Patrolman Bassano had good cause to fear for his own safety or the safety of others, and in this case that is sufficient (People v Moore, 32 N.Y.2d 67, cert den 414 U.S. 1011). There was no need for Bassano to particularize the danger he may have perceived; under these circumstances the limited infringement of a frisk is preferable to the alternative of serious injury to the officer (People v Mack, 26 N.Y.2d 311, cert den 400 U.S. 960, supra; Terry v Ohio, 392 U.S. 1, 33, concurring opn by Mr. Justice HARLAN, supra). The officer acted in a proper and responsible manner in making a limited pat down of the suspect's clothing to avoid the very real possibility of danger to himself and others (People v Taggart, 20 N.Y.2d 335, app dsmd 392 U.S. 667).
The order of the Appellate Division sustaining the conviction should in all respects be affirmed.
I, too, vote for affirmance, but my reasons differ from those of my brother Gabrielli.
Prior to our decision in People v De Bour ( 40 N.Y.2d 210, 223), no reasonable suspicion case required the prosecution to produce the testimony of a sender of a police communication at a suppression hearing (compare People v Lypka, 36 N.Y.2d 210, 214, and People v Horowitz, 21 N.Y.2d 55, with People v Mack, 26 N.Y.2d 311). Nor did any case furnish notice that such a rule was emerging, with the exception of People v Lypka ( 36 N.Y.2d 210, supra). Both De Bour and Lypka were decided after the first suppression hearing in this case. Hence the District Attorney handling the initial hearing could not have known that the testimony of Sergeant Arlotta and Mr. Hechinger would be needed to establish reasonable suspicion.
Where, as here, a new rule of law altering the proof needed to establish reasonable suspicion is laid down subsequent to the suppression hearing, the People effectively have not been afforded "a full opportunity to present evidence" at that hearing. Measured against the standard adopted by the majority, then, the remittal in this case was proper, and the testimony elicited at the second hearing may be considered in assessing the legality of the challenged police conduct. Taken together, the facts developed at the two hearings demonstrate that the officer acted upon reasonable suspicion.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge BREITEL and Judges JONES and FUCHSBERG concur with Judge WACHTLER; Judge GABRIELLI dissents and votes to affirm in an opinion in which Judge JASEN concurs; Judge COOKE dissents and votes to affirm in a separate dissenting opinion.
Order reversed, etc.