Summary
ruling that the defendant's failure to respond by itself would not have permitted further action by the police
Summary of this case from MATTER OF YODAOpinion
Argued May 1, 1980
Decided July 3, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRWIN M. SILBOWITZ, J., JOHN C. LEONFORTE, J.
Hillard Wiese, William E. Hellerstein and Ellen J. Schneider for appellant.
Robert M. Morgenthau, District Attorney (Gabrielle Rhodes and Norman Barclay of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The case comes to us on the following affirmed findings of fact: Detective Fougere observed defendant enter a novelty shop on 42nd Street and purchase a holster for a .25 caliber automatic pistol. The detective followed defendant down 42nd Street after defendant left the shop, showed his shield and identified himself as a police officer and asked defendant why he purchased the holster. Defendant's only response was to put his hand into his coat pocket. Told to remove his hand from his pocket, defendant failed to do so. The detective then grabbed defendant's hand by grabbing the coat pocket with defendant's hand in it and in doing so felt a gun.
Defendant argues that Brown v Texas ( 443 U.S. 47) requires reversal and the granting of his motion to suppress. We disagree. Brown involved no more articulable reason to detain the person arrested than that his passing another person in an alleyway "looked suspicious" (cf. United States v Mendenhall, 446 U.S. 544 [Justices STEWART and REHNQUIST]). Here defendant had been observed buying a holster for a gun. While such a purchase is not criminal, it furnished a sufficient basis for the inquiry made by Detective Fougere (see People v Skinner, 48 N.Y.2d 889, 890). There being no display of force nor anything more than the addressing of a question to defendant, the encounter clearly was not a seizure up to that point.
Defendant's failure to respond without more would not have permitted further action by the police (cf. People v Howard, 50 N.Y.2d 583). But when to that failure is added defendant's placing of his hand in his overcoat pocket and refusal to withdraw it, Detective Fougere's interest in his own safety was sufficient basis for his grabbing the hand through the coat for he had reason to believe that he might be dealing with an armed and, therefore, dangerous individual (cf. Sibron v New York, 392 U.S. 40, 64). Under those circumstances it is reasonable to infer, as did the courts below, that he grabbed defendant's hand to protect himself, even though he never expressly so testified. Under the Supreme Court's ruling in Terry v Ohio ( 392 U.S. 1, 27) he had a right to do so "regardless of whether he has probable cause to arrest the individual for a crime."
People v Prochilo ( 41 N.Y.2d 759, 763) is distinguishable for there there was nothing to suggest that the heavy object in defendant Bernard's pocket was a gun, whereas here the purchase of a holster is directly suggestive of the presence of a gun. Though not sufficient evidence of criminality to permit more than an inquiry, the purchase of the holster together with the potential menacing movement of defendant's placing his hand in his coat pocket was sufficient to warrant Fougere's protective action (see CPL 140.50, subd 3).
I agree that there should be an affirmance, but solely on the ground that, in these circumstances, the purchase of a holster designed for use with an automatic weapon furnished reasonable suspicion of criminality. On this view, there is no occasion to reach the question whether the police may detain an individual briefly for questioning on less than reasonable suspicion of criminal activity (compare Brown v Texas, 443 U.S. 47, with United States v Mendenhall, 446 U.S. 544 [STEWART and REHNQUIST, JJ.]).
It would appear, under recent authority, that reasonable suspicion of criminality is the minimum standard which would support such a limited stop (see Brown v Texas, supra, at pp 48-50; People v Skinner, 48 N.Y.2d 889, 890; but cf. United States v Mendenhall, supra [STEWART and REHNQUIST, JJ.]). Of course, this standard would apply to investigatory stops only, and the police would remain free to elicit information from citizens, for example concerning a lost child, in noninvestigatory and unintrusive street encounters.
The circumstances here fell far short of the narrowly circumscribed ones which would have permitted either the initial stop or the ultimate search and seizure of the defendant.
The majority concedes, as indeed it must, that it was perfectly lawful for the defendant to patronize the novelty store in order to purchase a holster. For no law forbids or regulates its sale. It also is not, and cannot be, denied that the item might just as well have been bought as a gift, as a housing for a toy gun or as a container for one of the nearly three quarters of a million handguns whose possession is licensed in New York State (see Annual Report of New York State Police Department [Jan. 31, 1980]). Nor is it as much as suggested that defendant's conduct in buying and carrying one from the store was in any sense furtive or clandestine.
Yet, on these facts the court is willing to condone what I would have thought was a patently unjustified infringement on a person's freedom to move about in public without police interference. In this I cannot concur.
We need look no further than the Supreme Court's recent decision in Brown v Texas ( 443 U.S. 47, 51) for the demanding principle that the police may detain an individual briefly for questioning only if they "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." (Cf. Delaware v Prouse, 440 U.S. 648.) The objective facts here, however, utterly fail to approach, much less cross, the threshold of ambiguity, and no superimposed interpretation or categorization can remedy the defect (see People v Howard, 50 N.Y.2d 583).
As I see it, in countenancing the police confrontation with Samuels, the court is effectively announcing that anyone who purchases a holster for a not uncommon variety of gun, whether in this store or, say, Abercrombie and Fitch or Modell's or Herman's or any other of the numerous novelty and sporting goods shops that sell such articles in New York City, forfeits the constitutional right to be secure from unwarranted harassment. Or, for that matter, by permitting the police to cavalierly compromise the right to privacy in this fashion, the court might just as well be saying that anyone who leaves with a parcel from an establishment that carries holsters as part of its stock is open to such invasion. The same could be said of the "scissors and needles, nails and knives" (Gilbert Sullivan, Patience, Act II) and the plethora of other everyday articles that our citizens are free to buy and to own without molestation until and unless there is specific, credible reason to believe they are being put to criminal use.
This is not a strained assumption. In this very case, the arresting officer's testimony indicated that the police made a habit of indiscriminately confronting patrons of the store who as much as examined the holsters offered for sale.
The tone of life and spontaneity of spirit that characterizes a free society could not long survive if the police were allowed to exploit any unusual circumstance, rationalized with 20-20 hindsight as giving rise to suspicion, as a basis for an escalating intrusion into the privacy of anyone who insists on his right to be left alone (see, generally, Greenawalt on Reasonableness and Probable Cause, in Dorsen, The Rights of Americans, p 303 et seq.). This factor is crucial here, for without the initial baseless encounter, the officer could not conceivably claim that he was placed in a position where concern for his own safety compelled him to frisk defendant (see Terry v Ohio, 392 U.S. 1, 27).
In his testimony, the officer himself, unlike the majority in its opinion, never characterized the defendant's action as menacing.
In this connection, it appears appropriate to note that the mushrooming lexicographical distinctions into which the reasonableness of street stops and seizures are being categorized present a disturbing problem. Since the circumstances of no two stops are ever precisely the same, the semantics necessarily employed to effect such compartmentalization, however well intended, in the end make it all the easier to substitute labels for liberties. It is encouraging therefore that such cases as Dunaway v New York ( 442 U.S. 200, 213) and Brown v Texas ( 443 U.S. 47, supra) appear to be leading a trend away from the artificial and "unworkable" hierarchy of police conduct erected in People v De Bour ( 40 N.Y.2d 210, 222-223) (see Note, People v. De Bour: The Power of the Police to Stop and Frisk Citizens, 30 Syracuse L Rev 893).
United States v Mendenhall ( 446 U.S. 544), cited by the majority, does not indorse the De Bour analysis, since a majority of the court there declined to hold that the authorities could confront the defendant with questions as to her identity and business on less than "reasonable suspicion".
But, assuming that so much of De Bour as allows an officer to "inquire" has survived, our contemporaneous decision in People v Howard ( 50 N.Y.2d 583, supra) makes the important point that one to whom an inquiry such as the one made here was directed is free to refuse to respond. Now, the privilege to do so must mean more than that the person addressed may remain mute. Howard itself, for instance, holds that the defendant there was not even obliged to stop. And, by the same token, one would expect that the individual approached would not have to, for example, hearken to a request that he loosen his clothing; remove the contents of his pockets or of the purse or parcels he may be carrying; or refrain from putting his hands in his pockets, keeping them at his sides or, let us suppose, using them to don or doff his hat, to reach into his coat for his cigarettes or to perform any one of the myriad of commonplace things a person normally is permitted to do without yielding up his constitutional right not to be searched or seized.
These observations are more than pertinent here. For it must be remembered that there is not even a claim that defendant's pocket "bulged" (cf. De Bour, supra, at p 213), much less that it presented the outline of a gun. If, therefore, only the fact that the defendant chose to put his hand in his pocket and keep it there was needed to earn him the officer's threat "to break his head" and to subject him to the forcible removal of his hand and a search of his person, for all practical purposes what the court says in Howard becomes a toothless statement that might just as well have never been written. I believe that this would be a significant impairment of the values which form an important barrier against a police State (see Brinegar v United States, 338 U.S. 160, 176; and People v De Bour, 40 N.Y.2d 210, 227-228 [my dissent] [discussing the balance intended to be struck by the drafters of our Constitutions]). But, since I do not view Howard as embodying such an empty intention, I also believe adherence to that decision and the Fourth Amendment requires that the fruits of the unfounded suspicion on which the police here acted should be suppressed. Concordantly, the order of the Appellate Division should be reversed and the indictment dismissed.
In People v Prochilo ( 41 N.Y.2d 759, 763), even though the police officer was able to observe a visibly heavy object in defendant Bernard's pocket, we ordered the gun suppressed, in part because the officer was completely unable to connect his observations with the presence of a weapon until after he had taken the impermissible step of reaching into the pocket.
These facts derive, as they must, from the police officer's version of the events, which was found to be credible by Trial Term. It is informative to note, however, that defendant himself testified that his right hand was in his pocket as he left the novelty store; that when the police inquired what he had purchased, he volunteered that it was a holster; that he responded in the negative to the ensuing question whether he had a gun; and that he was nonetheless patted down, two attempts being necessary before the firearm was discovered.
Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER concur in memorandum; Chief Judge COOKE concurs in a separate opinion; Judge FUCHSBERG dissents and votes to reverse in an opinion.
Order affirmed.