rejecting Supreme Court's expansive view of "stop and frisk" procedures as applied to automobilesSummary of this case from People v. Scott
Argued May 2, 1989
Decided July 11, 1989
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Jay Gold, J.
Norman L. Reimer for appellant.
Robert M. Morgenthau, District Attorney (Maryjane C. Shimsky and Norman Barclay of counsel), for respondent.
A police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50 (1). In People v Lindsay ( 72 N.Y.2d 843, 845), we left open the question whether under article I, § 12 of our State Constitution such an intrusion may extend to items within the passenger compartment of the suspects' vehicle solely on the theory that "if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and will then have access to any weapons inside" (Michigan v Long, 463 U.S. 1032, 1052). Having been squarely presented with the issue by the parties' submissions on this appeal, we now answer that question in the negative and hold that, despite the Supreme Court's approval of such intrusions in Michigan v Long (supra), our more protective State constitutional provisions prohibit them under the circumstances presented here (NY Const, art I, § 12).
At approximately 11:00 A.M. on the morning of October 25, 1985, the police received a telephone tip from an anonymous caller that an individual known as "Poppo," who was wanted on homicide charges, could be found having his hair cut at a barber shop located at 116th Street and Third Avenue in Manhattan. The suspect was described as a large, six-foot tall Hispanic male wearing a white sweater, driving a black Eldorado and carrying a gun in a shoulder bag.
Arriving at the specified address shortly after this tip was received, two plain-clothes detectives saw defendant leave the barber shop with another man and enter a black Eldorado. Defendant, who fit the anonymous caller's description, was wearing a white sweater and carrying a green nylon shoulder bag. The detectives approached the car with their guns drawn and, after identifying themselves, ordered the two occupants to exit and immediately frisked each of them. While defendant was still being frisked, the detective who had just patted down defendant's companion reached into the car and took the shoulder bag from the front seat, where it had been left by defendant. Having immediately noticed its unusual weight, the detective felt the outside of the bag, discerned the shape of a gun and, upon unzipping the bag, discovered a three-inch Rossi revolver and several rounds of live ammunition.
Defendant pleaded guilty to third degree criminal possession of a weapon after his motion to suppress the physical evidence was denied. The suppression court held that the anonymous tip, coupled with the detectives' on-the-scene observations, was sufficient to justify the detectives' intrusive actions. On appeal from the judgment of conviction, a divided Appellate Division affirmed ( 143 A.D.2d 40). Dissenting alone, the Presiding Justice argued that, regardless of whether the initial frisk was proper, there was no basis for the detectives to reach into the car and remove the shoulder bag, since its presence presented no immediate threat to the officer's safety ( 143 A.D.2d, at 42-44 [Murphy, P.J., dissenting]). We agree with the dissenter's view and, accordingly, reverse.
Three of the Justices on the Appellate Division panel concurred in a memorandum that questioned the detectives' right to conduct an immediate frisk, but nevertheless found that it was reasonable for them to have removed the bag from defendant's car for their own protection ( 143 A.D.2d 40, 40-41 [Smith, J., concurring]). Two of the Justices who joined that memorandum, and another Justice who did not, concurred in a separate memorandum, which stated that both the frisk and the touching of the shoulder bag were justified by the anonymous tip and the detectives' detailed confirmatory observations ( 143 A.D.2d, at 41-42 [Rosenberger, J., concurring]).
On this record, there is room for disagreement as to whether the anonymous tip, coupled with the detectives' on-the-scene observations, provided support for the finding below that the forcible stop and frisk was reasonable. However, even assuming the reasonableness of the detectives' conduct in ordering the suspects out of the car and conducting a protective pat-down, once the detectives had frisked the two men, and had thereby satisfied themselves that there was no immediate threat to their safety, there was, as a matter of law, no justification for conducting a further, more intrusive search extending to the removal of personal effects on the front seat of defendant's car. At most, the detectives may have had a reasonable basis for suspecting the presence of a gun. Their information plainly did not rise to the level of probable cause to search closed containers within the car's passenger compartment for a weapon (People v Elwell, 50 N.Y.2d 231; see, People v Belton, 55 N.Y.2d 49 [on remand]). Thus, the actions of the detectives may be justified only if the expansive view of the Terry v Ohio ( 392 U.S. 1) "stop and frisk" procedure that was adopted in Michigan v Long ( 463 U.S. 1032, supra) is determined to be consistent with the privacy rights guaranteed by our State Constitution (NY Const, art I, § 12).
In concluding that it is not, we note that although the history and identical language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; N Y Const, art I, § 12) generally support a "policy of uniformity," this court has demonstrated its willingness to adopt more protective standards under the State Constitution "when doing so best promotes `predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens'" (People v P.J. Video, 68 N.Y.2d 296, 304 [on remand], quoting People v Johnson, 66 N.Y.2d 398, 407). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v P.J. Video, supra [warrant application requirements in obscenity cases]; People v Bigelow, 66 N.Y.2d 417 [declining to follow "good faith" test outlined in United States v Leon ( 468 U.S. 897) and Massachusetts v Sheppard ( 468 U.S. 981)]; People v Johnson, 66 N.Y.2d 398, supra [declining to apply "totality of circumstances" test outlined in Illinois v Gates ( 462 U.S. 213) to warrantless arrests]; People v Class, 67 N.Y.2d 431 [on remand] [search for vehicle identification number in connection with traffic stop]; People v Gokey, 60 N.Y.2d 309 [warrantless search incident to arrest]; People v Belton, 55 N.Y.2d 49, supra [search of personal effects within automobile]; People v Landy, 59 N.Y.2d 369 [reiterating Elwell rule]; People v Elwell, 50 N.Y.2d 231, supra [probable cause predicated on informant's tip]; see also, People v Stith, 69 N.Y.2d 313, 316, n [exclusionary rule as it pertains to inevitable discovery doctrine]).
Our present decision to add to this emerging body of precedent rather than to follow the Federal position was foreshadowed by our analysis in People v Belton ( 55 N.Y.2d 49, supra). Indeed, it is significant that Michigan v Long (supra), the decision on which the People's and dissenter's positions are premised, was, at least in part, an elaboration of the Supreme Court's analysis in New York v Belton ( 453 U.S. 454), an analysis which we have declined to follow (see, People v Belton, 55 N.Y.2d 49, supra; see also, People v Gokey, supra).
Two of the dissenter's three theories in support of his conclusion that the detectives' actions were justified are based either directly on Michigan v Long ( 463 U.S. 1932) or on our own decision in People v Lindsay ( 72 N.Y.2d 843), which was, in turn, a simple application of the Michigan v Long holding (see, dissenting opn, at 234). The third "theory" discussed in the dissenting opinion is not so much an independent ground for approving the detectives' conduct as it is an effort to distinguish prior State precedent suggesting the contrary (see, People v Belton, 55 N.Y.2d 49).
In Belton, which involved a search of a closed container within the passenger compartment of an arrestee's automobile, we invoked the State Constitution and held that, under our own "automobile exception" to the rule against warrantless searches, an automobile's passenger compartment, and closed containers within that compartment, may be searched "where police have validly arrested an occupant * * * and * * * have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted" (id., at 55). In adopting this position, we expressed our dissatisfaction with the Supreme Court's position under the Fourth Amendment that such a search is permissible as an incident to a lawful arrest (id., at 52-53; see, New York v Belton, 453 U.S. 454, supra). We noted that the Supreme Court's position in Belton was a drastic departure from Chimel v California ( 395 U.S. 752) and that "[o]nce the exception is employed to justify a warrantless search for objects outside an arrested person's reach it no longer has any distinct spatial boundary" ( 55 N.Y.2d, at 53). Quoting from then-Judge Wachtler's opinion in People v Brosnan ( 32 N.Y.2d 254, 267), we observed that "`search and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded'" ( 55 N.Y.2d, at 53). That observation is equally apt in this context.
The dissenter's attempt to avoid the implications of Belton by characterizing this case as "partak[ing] mostly of a street and only incidentally and fortuitously of a vehicle encounter" is unpersuasive (see, dissenting opn, at 234). First, if this had been a true street encounter and defendant had simply dropped his bag on a park bench or automobile fender in response to the detectives' lawful approach, the officers' right to seize and inspect its contents would have been governed by the entirely separate body of case law involving abandoned property, as to which there is generally no expectation of privacy (see, 1 Ringel, Searches and Seizures § 8.4, at 8-32 — 8-37 [2d ed]; see generally, People v Boodle, 47 N.Y.2d 398). It is precisely because an automobile was involved here that defendant had an expectation of privacy in personal effects not on his immediate person and the need for a constitutionally adequate justification for the intrusion arises. Thus, the presence of an automobile in this encounter is not, as the dissenter suggests an analytically insignificant part of this fact pattern (dissenting opn, at 234). Second, although the ultimate holding in Belton was based on the so-called "automobile exception" to the general rule requiring warrants, the aspect of the Belton analysis on which we rely concerns its insistence upon a logical and conceptual relationship between the property to be seized or searched and, the predicate for that action ( 55 N.Y.2d, at 52-53). As is evident from our holding in People v Gokey, 60 N.Y.2d 309), that portion of the Belton decision is not limited to automobile encounters, but rather extends to all so-called "grab area" searches.
A police officer's entry into a citizen's automobile and his inspection of personal effects located within are significant encroachments upon that citizen's privacy interests (cf., People v Class, 63 N.Y.2d 491, 495, revd 475 U.S. 106, adhered to on remand 67 N.Y.2d 431, supra). Under our own long-standing precedent, such intrusions must be both justified in their inception and reasonably related in scope and intensity to the circumstances which rendered their initiation permissible (People v De Bour, 40 N.Y.2d 210, 215). While there are certainly legitimate law enforcement concerns that would justify such an intrusion (see, People v Blasich, 73 N.Y.2d 673; People v Belton, 55 N.Y.2d 49, 55, supra), such concerns were simply not present here.
The need here, as one commentator has noted, was "only to find implements which could be reached by the suspect during the brief face-to-face encounter, not to uncover items cleverly concealed and to which access could be gained only with considerable delay and difficulty" (1 La Fave Israel, Criminal Procedure § 3.8 [e], at 309; see also, People v Smith, 59 N.Y.2d 454, 458). In this instance, for example, the suspects had already been removed from the car, a permissible intrusion if there was reasonable suspicion of criminality in light of the need to protect the detectives' safety (Pennsylvania v Mimms, 434 U.S. 106; People v McLaurin, 70 N.Y.2d 779). Further, the suspects had been patted down without incident. At that point, there was nothing to prevent these two armed detectives from questioning the two suspects with complete safety to themselves, since the suspects had been isolated from the interior of the car, where the nylon bag that supposedly contained the gun was located. Any residual fear that the detectives might have had about the suspects' ability to break away and retrieve the bag could have been eliminated by taking the far less intrusive step of asking the suspects to move away from the vicinity of the car (see, 1 La Fave Israel, op. cit., at 310). Finally, it is unrealistic to assume, as the Supreme Court did in Michigan v Long (supra, at 1051-1052), that having been stopped and questioned without incident, a suspect who is about to be released and permitted to proceed on his way would, upon reentry into his vehicle, reach for a concealed weapon and threaten the departing police officer's safety. Certainly, such a far-fetched scenario is an insufficient basis upon which to predicate the substantial intrusion that occurred here (see, People v De Bour, supra).
This is not to suggest that the degree of probable cause outlined in People v Belton ( 55 N.Y.2d 49, 55) is always required as a predicate for conducting a limited intrusion and search of the passenger compartment of the suspect's car. Indeed, there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers' safety sufficient to justify a further intrusion, notwithstanding the suspect's inability to gain immediate access to that weapon. Of course, in such circumstances, the police officers would have a right to take further steps to protect themselves so that their investigation could be completed without risk to themselves. What we reject here is simply the suggestion that the substantial intrusion involved in even a limited entry into and search of a suspect's vehicle could be justified purely on the theoretical basis, adopted in Michigan v Long ( 463 U.S. 1032), that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle.
For all of these reasons, we conclude that the detective's conduct in reaching into defendant's car and removing his bag, conduct which revealed the presence of a gun, was not reasonably related to the need to protect the officers' safety in this street encounter. The detective's actions were thus improper under article I, § 12 of our State Constitution, and the resulting evidence should have been suppressed.
Finally, addressing the dissent, we are not unmindful of the reality of the day, including the risks faced by police officers in street encounters in the course of discharging their official duties. Nor are we unmindful of the fact that what is at issue here is an anonymous tip. The rule we fashion asks only that, once the officers have taken steps to secure their own physical safety, they limit their intrusion to the inquiry permitted by CPL 140.50. Accordingly, the order of the Appellate Division should be reversed, the evidence suppressed and the indictment against defendant dismissed.
Chief Judge WACHTLER and Judges SIMONS, KAYE and HANCOCK, JR., concur with Judge TITONE; Judge ALEXANDER concurs in result in a separate opinion; Judge BELLACOSA dissents and votes to affirm in another opinion.
Order reversed, etc.
The majority concedes that on this record reasonable minds may differ over whether the anonymous tip, together with the observations of the detectives at the scene, provided reasonable suspicion for the forceable stop and frisk. Because I believe the actions of the detectives in converging on the defendant with guns drawn and ordering him out of the car without any inquiry or observation of criminal activity were unreasonable and alone justify reversal of defendant's conviction, I need not and do not reach the issue that divides the court — whether the rationale of Michigan v Long ( 463 U.S. 1032) should be adopted under our State Constitution. Moreover, I do not understand the majority's holding to conclude that such a forceable detention — unsupported by observed indicia of criminality — is always reasonable under the Fourth Amendment whenever the noncriminal details of the anonymous tip are confirmed by observations at the scene. Accordingly, I concur in result only.
I would affirm the Appellate Division order upholding the conviction for criminal possession of a weapon in the third degree. Inasmuch as sufficient evidence was adduced at the hearing to support the lower courts' findings that the police officers acted on verified detailed information and in their reasonable self-protection, the order of the Appellate Division should be affirmed (see, People v Salaman, 71 N.Y.2d 869, 870-871; People v Jones, 69 N.Y.2d 853, 855).
The court accepts for purposes of addressing the frisk of the bag with the gun that the basic stop and frisk of the person of the defendant were justified by a reasonable suspicion of ongoing criminality and, alternatively, by an articulable basis for the officers to fear for their safety. I thus proceed directly to the safety-based justification for also removing and securing the nylon bag, reportedly containing a gun, from the front seat of the defendant's car. The finely spun and bifurcated analysis of the majority may work in the cloister, but it does not work and is not warranted for the hard streets. The dangers may be "far-fetched" (majority opn, at 230) to Judges in the protected enclave of the courthouse, but not to cops on the beat.
The conclusion by the reversing Judges is necessarily made as a matter of law, and it thus displaces the undisturbed, supportable lower courts' findings of over-all reasonableness as to the police action in these circumstances. That conclusion substitutes a disembodied, retrospective judgment that the police officers here lacked a reasonable basis, in light of this particularly dangerous street encounter, to complete their concededly lawful approach and frisk by unrealistically and unnecessarily curtailing the officers' authority to reach for and secure the reported weapon to insure their own contemporaneous safety (see, People v Salaman, 71 N.Y.2d 869, 870, supra; People v De Bour, 40 N.Y.2d 210, 223; see also, Adams v Williams, 407 U.S. 143; Terry v Ohio, 392 U.S. 1, 27).
The Appellate Division in this case affirmed the denial of suppression on a record establishing that the approach to this defendant was reasonably predicated on a very detailed anonymous tip taken and corroborated in many relevant details by two homicide detectives pursuant to what I accept in law and in the majority's assumption as a lawful and official obligation to investigate. The tip included the defendant's sex; ethnicity; large size; specific clothing; current activity; nickname; car make, model and color; that he was located at 116th Street and Third Avenue in Manhattan in a barber shop; that he was carrying a shoulder bag; that the bag contained a gun; and that he was a homicide suspect. The officers' investigation corroborated all these details except the nickname, suspect status and gun possession. Based upon the number and specificity of the confirmed details and the character of the details yet to be corroborated — an armed homicide suspect named "Poppo" — the officers responded to the scene; saw defendant exit the barber shop with a companion; saw that the defendant was carrying the reported shoulder bag allegedly containing the gun; and saw him get into the black Cadillac Eldorado. Only then did they have an opportunity to approach, which they did with guns drawn. They ordered defendant to step out of the car, where he had only been momentarily seated, and frisked him. The majority nevertheless formalistically and arbitrarily draws a line against reasonable completion of the investigation and precautionary procedures. It condemns the officers for almost simultaneously reaching in to retrieve the shoulder bag from the front car seat where it had been placed only moments before when the suspect entered the car with it. Once the weight and outline of a gun were felt through the bag's nylon material, the encounter escalated to probable cause and the police searched the bag and found the loaded revolver (see, People v Stewart, 41 N.Y.2d 65, 66; People v De Bour, 40 N.Y.2d 210, supra). Yet, the reversers unreasonably suppress the gun.
A police officer's concededly lawful duty to investigate includes the right to protect his or her own survival, based commonsensically and reasonably on safety concerns not only for the officer but also for innocent bystanders; this embraces the right to frisk for weapons when the officer has a reasonably record-justified belief that the suspect may be armed (see, People v Salaman, 71 N.Y.2d 869, 870, supra; People v Benjamin, 51 N.Y.2d 267, 270; People v McLaurin, 56 A.D.2d 80, revd on dissenting opn 43 N.Y.2d 902). A frisk for weapons, in turn, encompasses personal property capable of or reported as concealing a weapon within the suspect's grabbable reach (see, People v Brooks, 65 N.Y.2d 1021, 1023; People v Davis, 64 N.Y.2d 1143, 1144; People v Pugach, 15 N.Y.2d 65, 69).
The acknowledged duty to investigate, plus the right to inquire, plus the right to frisk authorized in this case, also includes, in my view, the concomitant right to frisk the bag in this case. Three theories support this reasonable action. First, under a realistic view, the present case partakes mostly of a street and only incidentally and fortuitously of a vehicle encounter because of the unity and contemporaneity of defendant's person and the bag with the gun on the street. This particular bag was part of this person's aura and, as such, falls flat within the majority's primary rationale recognizing the legality of the frisk of the person (majority opn, at 231, n 4). As such, this is not a People v Belton ( 55 N.Y.2d 49) automobile category search and we should not allow a hardening of the search categories to mechanically control and to displace the distinctive analytical composition of this fact pattern. Second, the real threat to these officers, acknowledged by the majority as a proper basis for a frisk of defendant, is in no respect dissipated or attenuated where the container within which a weapon is reportedly secreted is immediately and proximately accessible to the suspect upon reentering or even just reaching into a car (see, People v Lindsay, 72 N.Y.2d 843, 845). Finally, the frisk of the bag was proper under Michigan v Long ( 463 U.S. 1032). Indeed, "if the police officer possesses a reasonable belief based on `specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous" and that a weapon may be contained within the car, the authorization for the expanded frisk is self-evident (id., at 1049, quoting Terry v Ohio, 392 U.S. 1, 21). The police here are in at least as much danger, if not more, than police throughout this country. Thus, in these particular circumstances, there is no justification for bestowing a different and more onerous and far more dangerous rule of reason, operative only in the State of New York and based only on our State Constitution.
Thus, this case is not controlled by the postarrest, probable cause, automobile exception and container standards of People v Belton, but rather is supported in an indirect way by that case and its most recent progeny ( 55 N.Y.2d 49, supra, on remand 453 U.S. 454, revg 50 N.Y.2d 447; see also, People v Blasich, 73 N.Y.2d 673). Belton was the occupant of a car stopped for speeding and he was arrested for marihuana possession. Relying on the automobile search exception, we upheld a subsequent warrantless search of the car and of Belton's jacket, which was on the back seat, even though the occupants had been separated, arrested, searched, removed to a point distant and there was no evidence the arresting officer feared for his safety. The far different fact and legal category scenario here was that of a stop and frisk performed by officers investigating the detailed report of an armed homicide suspect. The predicate for frisking Torres — safety concerns arising from the presence of a weapon in the shoulder bag of a reported homicide suspect — was not increased or diminished by the incidental involvement of the automobile. The removal of the bag from its temporary resting place — not discernibly different from a park bench or car fender or hood for Fourth Amendment purposes or even for our article I, § 12 State Constitution purposes — does not implicate Belton and should not require a higher threshold for preventative protective measures.
Highly detailed information reported to the police and manifestly based on personal knowledge, corroborated in every observable aspect and coupled with yet-to-be confirmed data that the suspect is a violent felon — armed and suspected of murder — provides more than an adequate basis for upholding the reasonableness of the officers' safeguarding actions (see, People v Lindsay, 72 N.Y.2d 843, supra; People v Russ, 61 N.Y.2d 693, 695; People v Benjamin, 51 N.Y.2d 267, 270, supra; People v Kinlock, 43 N.Y.2d 832; People v McLaurin, 56 A.D.2d 80, revd on dissenting opn 43 N.Y.2d 902, supra; People v Stroller, 42 N.Y.2d 1052). The two courts below have so found and this court has no reasonable basis in law or in fact to conclude contrariwise (People v Harrison, 57 N.Y.2d 470, 477).
I understand and accept that the majority is expressly not deciding but only assuming the legality of the threshold stop and frisk authorization — deeming it valid in order to use a separate dispositional path. To my mind, however, there is little question that firm legal authorities support the legality of the stop and frisk here and, thus, if we were to confront that issue, I would be on the opposite side of the views expressed in Judge Alexander's separate concurring opinion.
Courts should face the reality of the day and gauge the reasonableness of police officers' conduct in these circumstances in the full light of that harsh glare (cf., People v La Pene, 40 N.Y.2d 210). It is not reasonable to hold that police officers — thrust into this kind of emergency situation where their official duty obligates them to act and where the difference between life and death is often measured in seconds — must differentiate on the spot between finely spun legal doctrines of authority to frisk based on a multiple choice test of the available categories. This case proves the point and turns the tactical and very dangerous advantage over to the suspected criminal. The officers' and innocent bystanders' safety concerns are not alleviated, in law and certainly not in fact, by a frisk of the person only, in this circumstance given the continuing, frighteningly real nature of the threat presented by the accessibility of the gun as soon as the defendant might reenter or reach into the car. The attribution of unreasonableness, of unreliability, and of suspicion in a gun-homicide case condemning police safeguarding actions based on especially detailed anonymous warnings and reports is not founded in empirical data or in sound legal principles. The majority rule allows persons, reasonably suspected of carrying a gun in a bag to avoid a frisk of the container by merely dropping the bag through a car window and unnecessarily leaves the investigating officer holding a different bag of continuing jeopardy.
Whether we dislike generally the police procedure of approaching vehicles with drawn weapons and without announced inquiry in the dangerous setting of cases like this is not determinative because those particular facets, even if viewed as unjustified in hindsight or even if viewed as preferable precautionary procedure — and I do not accept either in this case — do not eliminate the reasonable basis for the police acting as they were supposed to and as they did in their own and in others' safety, under valid precedents and under all the evidence adduced (see, Michigan v Long, 463 U.S. 1032, supra; People v Lindsay, 72 N.Y.2d 843, supra; People v Salaman, 71 N.Y.2d 869, 870, supra; People v Chestnut, 51 N.Y.2d 14).