People v. Chestnut

OPINION OF THE COURT

Sullivan, J.

At issue is the propriety of the denial of defendant’s motion to suppress physical evidence, and statements made by him contemporaneously with the seizure of a gun and at the station house after his arrest. Subsequent to the denial of his motion defendant entered a plea of guilty.

The following facts were adduced at the suppression hearing. On the evening of January 4, 1977, at 8:45 p.m. police officers Dieterich and Stryker, assigned to an anticrime unit, were in plainclothes in an unmarked taxi. Stryker was the operator. Driving south on West End Avenue, they observed a Black male and a white male and female huddled in apparent conversation in a phone booth at the corner of 64th Street. Their suspicions aroused, the officers made a U-turn and stopped at 63rd Street from which vantage point they observed the individuals for about one minute. The Black male, subsequently identified as Anthony Hernandez, left the booth and walked south to 63rd Street. As he walked away he was observed turning his head several times and looking over his *44shoulder. Hernandez turned east onto 63rd Street, but returned to the corner and peeked back „m the direction of the phone booth.

Dieterich left the taxi and followed Hernandez for a few steps on 63rd Street, and observed him enter a playground which was part of a housing project. Dieterich then returned to the taxi and the officers drove north on West End Avenue, made a right at 64th Street and drove east for a half block, stopping by the north side of the playground. Dieterich again got out of the taxi, this time to see if he could find the other male and female who had been seen earlier in the phone booth. Stryker, who had Hernandez under observation in the playground, saw him engaged in apparent conversation with the defendant Chestnut, and he observed Hernandez hand something to Chestnut. At about this time, Stryker received a radio transmission of a robbery at 64th Street and West End Avenue. The perpetrator was described as a young, Black male wearing a blue jacket and a black flop hat, and armed with a silver gun. Stryker called Dieterich back to the taxi and informed him of the radio report. The officers agreed that Hernandez fitted the description.

As the officers spoke they noticed Hernandez and Chestnut walking out of the playground towards the taxi. As they approached they looked at Dieterich and Stryker and then abruptly reversed direction and returned to the playground. Dieterich told Stryker to transmit an alarm that they were were following a possible suspect in the robbery and then followed the pair into the playground where they were joined by a female. The trio then walked from the playground through the housing project towards Amsterdam Avenue. Stryker drove around the corner to Amsterdam Avenue and exited the taxi. He attempted to contact his communications dispatcher on his portable radio, but failed to receive an acknowledgment. As he walked south along Amsterdam Avenue he observed Hernandez and Chestnut, accompanied by the female, walking out of the project in his direction. As the group approached, Stryker identified himself as a police officer, showed his shield and, with revolver drawn, shouted: "Police Officer, freeze. Don’t move, lay down on the ground.” Hernandez and Chestnut turned and saw Dieterich behind them, and then lay down. The female stepped aside. While . they were on the ground Dieterich asked: "Where is the gun?” Chestnut answered "it’s right here”, and pointed to his right-*45hand pocket. Dieterich reached into the pocket and removed a silver-plated revolver. Hernandez and Chestnut were then arrested and handcuffed.

Eventually, more police arrived, together with the complaining witnesses, who identified the revolver as the weapon used in the robbery. At the police station, after Chestnut had been given his Miranda warnings, he denied participation in any robbery but admitted ownership of the gun, and claimed that he had let Hernandez hold it.

A subsequent search of Chestnut at the station uncovered three manila envelopes of marihuana and two 5-dollar bills, which Chestnut admitted had been given to him by Hernandez. The complainants had reported that they each had a 5- and a 10-dollar bill taken from them. Two 10-dollar bills were found on Hernandez.

At the close of the hearing, the court found that the police officers had probable cause to arrest Hernandez and that the circumstances justified a frisk of Chestnut, and that no preliminary questions were required, since one of the officers had observed Hernandez pass an object of some type to Chestnut, and the officers were aware that a robbery had taken place. We agree.

One of the most vexing of judicial issues is the delineation of permissible police intrusion upon the liberty of the private citizen in a street encounter. Judges are called upon to balance "the legitimate interests of the defendants against the reasonableness and appropriateness of the police action.” (People v Prochilo, 41 NY2d 759, 761.) Immutable legal abstracts, easily enunciated in an atmosphere conducive to research, reflection and deliberation are applied, less facilely, to the infinite vagaries of human activity, oft-times carried out in a caldron of emotion. The central figure in these confrontations and whose conduct it is that we are asked to judge is the police officer, who is faced with the daily possibility that any incident might become a life or death situation, with little or no time for reflection, let alone deliberation.

CPL 140.50 (subd 3) authorizes police officers to frisk an individual, whom they have stopped for an explanation of his conduct, if they reasonably suspect that they are in danger of physical injury. To justify a "self-protective search for weapons”, an officer "must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (Sibron v New York, 392 US 40, 64.)

*46Whether a police officer’s conduct is reasonable "must necessarily turn on the facts in each individual case” (People v Green, 35 NY2d 193, 195), and is based on how justifiable his suspicions. It has been held that: "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. [Citations omitted.] To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice. [Citations omitted.] Nor will the good faith on the part of the police be enough to validate an illegal interference with an individual [citations omitted].” (People v Cantor, 36 NY2d 106, 112-113.)

The Court of Appeals has identified three preliminary areas of inquiry in the resolution of whether an officer’s actions wére reasonable in the conduct of a frisk which leads to the seizure of a gun: "Was there proof of a describable object or of describable conduct that provides a reasonable basis for the police officer’s belief that the defendant had a gun in his possession? Was the manner of the officer’s approach to the defendant and the seizure of the gun from him reasonable in the circumstances? Was there evidence of probative worth that there had been a pretext stop and frisk or that the police were otherwise motivated by improper or irrelevant purpose?” (People v Prochilo, 41 NY2d 759, 761-762, supra.) We are of the view that on the facts here the answers to these questions are compellingly in the police officers’ favor.

As the officers approached Hernandez and Chestnut, they were aware that a gunpoint robbery had been committed and that Hernandez matched the description of the robber. Moreover, the officers themselves had seen Hernandez involved with two individuals at the intersection where the robbery reportedly occurred, and thus the officers had valid reasons to believe that the description of the robber was confirmed by their own continuing observation of Hernandez. Under such circumstances they quite clearly had probable cause to stop and arrest Hernandez. "Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed”. (People v Oden, 36 NY2d 382, 384.)

Before the officers had reason to seize Hernandez, however, one of them had seen him pass an object to Chestnut. *47While it might well be that the object was innocuous, as the dissent suggests, from the perspective of the police officer, there was a likelihood that the object passed was a gun, particularly since Hernandez, the robber, was less than a block from the crime scene and would have an interest in disgorging himself of the incriminating weapon.* To label as "sheer speculation” the inference that it was a gun that Hernandez passed to Chestnut is to ignore the reality of the situation. Even the most naive individual would be wary when he saw a suspected armed robber pass "something” to another individual minutes after the crime had been committed.

Furthermore, Officer Stryker, who gave the command to lie down, had also attempted, to no avail, to call his dispatcher. Hence, he was aware that in a situation where he wanted the security of reinforcements, he had only Dieterich to assist him. Since "we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty.” (People v Rivera, 14 NY2d 441, 446.)

The situation confronting the officers was certainly an unusual street incident. They had reason to believe that they were coming face-to-face with a man wanted for armed robbery, and were confronted with the distinct possibility that his companion was now in possession of the gun. In People v Sterling (63 AD2d 210, 215), where the police had received a radio report of an armed robbery, and, after having approached a suspect, discovered that he had a gun, this court found that "the officers were endowed by statute with the authority to frisk [his companions in a car] so as to ensure that the result of their inquiry would not be a hail of bullets.” We fail to see why Dieterich and Stryker should be deprived of the same self-protective right to frisk. Unsure as to who was in possession of the gun, the officers necessarily had to frisk Chestnut to assure their own safety.

The dissent argues that the order to Hernandez and Chestnut to lie on the ground was a seizure, and thus an arrest. But a seizure does not, ipso facto, constitute an arrest. (See Terry v Ohio, 392 US 1; Dunaway v New York, 442 US 200.) There is in any frisk the element of a seizure, since an individual’s movement is curtailed and his person is subject to touching by *48other persons. But it requires more than an impairment of mobility to elevate a stop into an arrest. We are unaware of any statute or decisional authority that states that there is only one constitutionally acceptable manner of accomplishing a frisk. Some officers may simply pat down an individual while he is standing upright. Others may conduct the frisk with the detainee positioned against a wall or the side of a motor vehicle. And others may accomplish the frisk, like the officers here, by ordering a suspect to lie on the sidewalk. The nature of a frisk, as opposed to a search, is that it is essentially a pat down. The position of the suspect during the pat down does not convert the frisk into a search.

Although Dieterich denied that the confrontation was a stop and frisk, Stryker testified that Dieterich frisked both men, and Dieterich himself stated only that he asked where the gun was. The intrusion upon Chestnut’s person was not inconsistent with classic stop and frisk procedure, no matter what label Dieterich gave to it. Dieterich’s denial that the confrontation was a frisk does not make it a search. To hold otherwise would mean that what a policeman calls a good frisk, but which is in reality a bad search, would have to be sustained by his appellation, permitting a triumph of form over substance.

The dissent also suggests that the officers’ approach with their guns drawn elevated immediately the order to lie down into an arrest situation. However, "the predicate established defines the scope of permissible police conduct.” (People v Stewart, 41 NY2d 65, 66.) Here, it is clear that the officers were justified in drawing their guns as they approached two men, one of whom had just committed a gunpoint robbery. Consequently, of necessity, any commands the officers might subsequently give to Hernandez and those with him, or questions they would ask, would have to be at gunpoint. To hold that Chestnut was, ipso facto, arrested by the drawing of the gun would mean that anytime an officer draws his gun and gives an order, or perhaps just asks a question, all those to whom he is speaking would be under arrest. In an emergency situation an officer is unable to cull out those against whom reasonable force is necessary from the innocent bystander, or the individual, like Chestnut, whose conduct, although not meriting arrest, is certainly suspicious enough to warrant a frisk.

*49 Finally, we note that Chestnut’s statement "it’s right here” and his indication as to the gun’s location, given in response to Dieterich’s inquiry, "Where is the gun?”, only hastened the inevitable. Had he said nothing, or the police asked nothing, the frisk for which the officers were positioning Hernandez and Chestnut on the ground would have produced the gun anyway. "[E]vidence obtained as a result of information derived from an unlawful search or other illegal police conduct is not inadmissible under the fruit of the poisonous tree doctrine where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence.” (People v Fitzpatrick, 32 NY2d 499, 506; see, also, United States v Seohnlein, 423 F2d 1051, cert den 399 US 913; People v Reisman, 29 NY2d 278; People v Mendez, 28 NY2d 94.) Thus any failure to inform Chestnut of his Fifth and Sixth Amendment rights before he answered does not impair the legality of the frisk and seizure of the gun. We do not believe, however, that the single question asked by Dieterich constituted an interrogation to which the Miranda warnings are applicable. (See People v Huffman, 41 NY2d 29, 33, 34.) Nevertheless, even if Chestnut’s response to Dieterich’s inquiry were suppressed, the plea should not be disturbed.

Accordingly, the judgment, Supreme Court, New York County (Coon, J.), rendered September 6, 1977, convicting defendant, on his plea of guilty of criminal possession of a weapon in the third degree and sentencing him thereupon to a term of statutory probation, should be affirmed.

That Hernandez was still apprehensive is evidenced by the fact that he turned hack into the playground with Chestnut after seeing Dieterich and Stryker standing by the taxi.