Opinion
February 2, 1999
Appeal from the Supreme court, New York County, (Dorothy Cropper, J.).
Defendant was indicted for two counts of criminal possession of a weapon in the third degree after he was found in possession of a loaded 9 millimeter automatic pistol on September 22, 1995. A hearing was held on defendant's motion to suppress the gun, at which Police Officers O'Keefe, Cuadrado and O'Sullivan testified for the People. The officers' testimony, fully credited by the suppression court, established that the officers observed defendant trying on a holster in a store on 42nd Street between Seventh and Eighth Avenues. After defendant purchased the holster and left the store, two of the officers approached him from the front, while another stood behind him. With their shields displayed, the officers announced that they were the police and that they wanted to speak to him. Defendant became nervous and stated "[o]h, my God." Defendant quickly reached for his waist area with both hands and the three officers then grabbed him. The two officers in front grabbed his arms, while the officer behind him, O'Keefe, grabbed the bottom of a knapsack he was carrying to "control him before he could reach for a weapon." When he touched the knapsack, O'Keefe felt the distinct outline of a large pistol. O'Keefe opened the knapsack and recovered a 9 millimeter pistol, which was loaded with a clip containing 14 live rounds.
Defendant's motion to suppress the gun was improperly granted. Defendant's purchase of a holster provided the police with a common-law right of inquiry ( People v. Samuels, 50 N.Y.2d 1035, cert denied 449 U.S. 984; People v. Wood, 216 A.D.2d 5, lv denied 86 N.Y.2d 785). The situation immediately escalated when defendant responded "[o]h, my God" and reached for his waistband ( see, People v. Giles, 223 A.D.2d 39, 42, lv denied 89 N.Y.2d 864; People v. Montague, 175 A.D.2d 54), which gave the police reasonable suspicion that defendant was armed and dangerous ( People v. Samuels, supra, at 1037). As has been recognized in the past, handguns are often carried in the waistband ( People v. Giles, supra, at 41; People v. Montague, supra, at 55), and a police officer need not "await the glint of steel before he can act to preserve his safety" ( People v. Benjamin, 51 N.Y.2d 267, 271).
The search of the bag was also lawful. Since defendant carried the knapsack on his person during this rapidly unfolding encounter, O'Keefe was entitled to pat down the bag for safety purposes ( People v. Brooks, 65 N.Y.2d 1021, 1023; People v. Cartagena, 189 A.D.2d 67, 72, lv denied 81 N.Y.2d 1012). Having felt the distinct outline of a gun in the bag, O'Keefe was authorized to open the bag and recover the gun. ( People v. Nials, 209 A.D.2d 324, 325, lv denied 85 N.Y.2d 912).
Concur — Sullivan, J. P., Rosenberger, Wallach and Mazzarelli, JJ.