People v. Alba

Sullivan, J.

(dissenting). On Sunday, March 12, 1978, at about 7:00 P.M., defendant and four other individuals entered the arraignment part of the Bronx Criminal Court. Defendant, carrying a large attaché case resembling a suitcase, sat down in the rear of the courtroom and placed the case on his lap. He was immediately recognized by the two court officers on duty, Adler and Villanueva, as well as by the Assistant District Attorney, all of whom remembered him from earlier incidents in or around the courthouse. At one time defendant had led a demonstration outside the courthouse. Each of them knew of defendant’s reputed association with FALN, a terrorist group. They were aware, also, that a cache of arms had been seized in his apartment a year earlier.

Both court officers and the Assistant District Attorney immediately sensed trouble. They thought it strange that defendant, given his familiarity with courthouse operations, would arrive after 7:00 P.M., knowing that Sunday court sessions usually conclude by 8:00 p.m. In addition, defen*355dant, who usually occupied a front row seat, had now seated himself in the rear of the courtroom. The large attaché case, not recognized as a piece of defendant’s customary paraphernalia, as well as the manner in which he cradled it in his lap, only heightened an already aroused suspicion, and led Adler, Villanueva and the Assistant District Attorney to believe that defendant had a bomb in the attaché case. Even though one case on the court’s calendar remained to be called, the two court officers and the Assistant District Attorney agreed that a recess should be sought so that the court officers could inspect the attaché case.

We digress briefly to note that signs, 18 by 24 inches in size, bearing the legend “persons entering the building are subject to search”, were conspicuously posted at the entrance to the courthouse. Normally, a court officer assigned to the front desk near the entrance was instructed to inspect packages and any suspicious bulges on an individual’s person before allowing the individual to proceed any further. On weekends, however, the desk is not manned and the court officers assigned to the arraignment part are primarily responsible for the conduct of any courthouse search. Posted on the outside of the doors to all the courtrooms were signs reading: “all persons entering the COURTROOM ARE SUBJECT TO SEARCH”.

A recess was announced and the spectators, including defendant, left the courtroom and congregated in the hallway. Court Officer Adler, accompanied by Villanueva and four other court officers, all in uniform, approached defendant, who was standing in a group and said to him “Please step into the clerk’s office. I want to search your bag.” Indignant, defendant drew back and replied, “No, you’re not.” Adler persisted. Defendant was adamant, “No, you can’t search my bag if I am not under arrest. Am I under arrest?” Adler responded, “No, but I’m going to search your bag.” When defendant once again insisted that in the absence of an arrest his bag could not be searched, Adler, anxious to avoid a riot, and without any actual intention of effectuating an arrest, said, “All right, then you are under arrest.”

At this point Adler reached out to seize the attaché case. Shouting “take it, take it, take it”, defendant attempted *356to pass the case to one Gonzalez, who was standing nearby. Just as Gonzalez took the bag, Villanueva grabbed the handle and pulled it away. After Villanueva, assisted by another court officer, had secured control of the attaché case, defendant and his cohort were taken to the clerk’s office, about 10 feet away.

Once inside the clerk’s office defendant and the others with him were told to put their hands on the counter, a request with which they complied. Defendant, however, began to take his hands off the counter and to move them toward his midsection. Noticing this Adler commanded, “Put your hands back up.” Concerned that he might have a weapon, Adler then patted defendant down. At the waist he felt what appeared to be the butt of a gun. Adler then removed a gun, which turned out to be a loaded, six-shot, .38 calibre revolver, from a holster in defendant’s waistband. When asked why he needed a gun, defendant responded, “What’s the matter? FALN can’t come into court anymore.”

After being assured by defendant that it did not contain any explosives, Adler opened the attaché case. Inside were telephone numbers, mimeographed announcements, address books, and a picture of Mao Tse Tung. Defendant was arrested for possession of a weapon and related crimes arising out of the incident. In a well-reasoned and comprehensive decision Trial Term granted defendant’s motion to suppress the gun (104 Misc 2d 1095), a determination with which we agree.

At the outset we reject the People’s argument, accepted by the majority, that defendant impliedly consented to a limited search of his attaché case by entering the courtroom with notice that he was subject to search. Consent will not be implied from the posting of signs. (See Chenkin v Bellevue Hosp. Center, 479 F Supp 207, 213; see, also, Gaioni v Folmar, 460 F Supp 10.) “If this argument were accepted, the government and quasi-public institutions would gain broad power to refashion the contours of the Fourth Amendment merely by proclamation.” (Chenkin v Bellevue Hosp. Center, supra, at p 213.)

In recognition of the citizen’s lessened expectation of privacy upon entering such premises and the State’s legiti*357mate interest in maintaining security therein, courthouses, like airports1, schools2, military installations3 and prisons4, have been deemed special areas in which warrantless security searches under somewhat diminished Fourth Amendment requirements are permitted. (See Downing v Kunzig, 454 F2d 1230; McMorris v Alioto, 567 F2d 897; United States v Miller, 468 F2d 1041; United States v Bell, 457 F2d 1231; Barrett v Kunzig, 331 F Supp 266; Collier v Miller, 414 F Supp 1357, 1362; see, also, Jesmore, The Courthouse Search, 21 UCLA L Rev 797.) Such searches are designed “to assure that [government’s] property and personnel are protected against damage, injury or destruction” (Downing v Kunzig, 454 F2d, at p 1233).

We are unaware, however, of any decision which has treated the courthouse as a special enclave where random nonconsensual searches are permitted on the basis of mere hunch or suspicion, instead of requiring consent or the traditional showing of justification—probable cause or reasonable suspicion that an individual is armed and dangerous.

Downing, McMorris and Barrett (supra) all involved a challenge to the courthouse security procedures employed. The methods of search were essentially identical. Persons entering the courthouse were required to pass through screening procedures and, upon request, to make available for inspection the contents of their briefcases or parcels. In each case the procedures were sustained on the basis of implied consent because the screening process recognized the individual’s right to avoid the search by electing either not to seek access (Downing v Kunzig, 454 F2d, at p 1231; McMorris v Alioto, 567 F2d, at pp 899, 901), or to leave the briefcase for safekeeping or to permit a guard to accompany him to his destination (Barrett v Kunzig, 331 F Supp, at pp 270, 274). In McMorris (supra, p 901) the court noted that “[p]ersons entering the [courthouse] are not physic*358ally coerced to submit to the magnetometer search for the briefcase and parcel inspection. They may leave the premises at any time, even after activating the magnetometer.” Thus, defendant’s situation is readily distinguishable. He was never afforded the choice of leaving the courthouse or any other alternative that would have avoided the search. While normally an officer at the front desk would have offered him the option of opening his attaché case or being refused admittance, we fail to see why he should be denied these alternatives and his Fourth Amendment rights diluted because he entered the courthouse on a weekend. Furthermore, in each of the three cited cases, each person who sought entry to the courthouse was subject to the same procedures, unlike here, where defendant was singled out from among the 35 to 40 courtroom spectators, some of whom also were carrying bags.

The People also seek to justify the seizure of the gun as a limited, self-protective search by the court officer who reasonably suspected that defendant was armed and dangerous. In Terry v Ohio (392 US 1) the Supreme Court, recognizing (p 24) “the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause”, held (p 30): “[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

In courthouses, as elsewhere, a law enforcement officer may, of course, conduct a limited-scope, warrantless search based on his belief that the individual with whom he is dealing is armed. (United States v Miller, 468 F2d, at p 1045.) That right is embodied in CPL 140.50 which, by amend*359ment, extended the “stop and frisk” power to, among others, court officers of all criminal courts of this State in connection with their courtroom duties. (L 1972, ch 911, § 1, eff Sept. 1, 1972.) Such court officer “may stop a person in or about the courtroom to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law” (CPL 140.50, subd 2). When he “reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument * * * readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons.” (CPL 140.50, subd 3.)

The standard for determining the reasonableness of such a search was established in Terry v Ohio (392 US 1, 20, supra): “[Wjhether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Reasonableness is the touchstone by which official conduct is measured under the Fourth Amendment. (Cady v Dombrowski, 413 US 433, 439.) 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.) The reasonableness of an officer’s conduct “must necessarily turn on the facts in each individual case.” (People v Green, 35 NY2d 193, 195.)

The Court of Appeals has outlined the conduct necessary to justify a frisk: “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. * * * 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 * * * Nor will good faith on the part of the police be enough to validate an illegal interference with an individual”. (People v Cantor, 36 NY2d 106, 112-113.)

*360In determining the reasonableness of police conduct in citizen encounters it has been noted: “ [T] he proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether * * * that predicate justified the extent of the official intrusion on the individual. Thus, the predicate established defines the scope of permissible police conduct.” (People v Stewart, 41 NY2d 65, 66.)

Viewing the facts here within the framework of these guidelines we are unable to conclude that the officers’ suspicion that defendant was carrying explosives in his attaché case had a reasonable basis. That defendant had previously been arrested for possession of weapons and had on earlier occasions led disorderly demonstrations at the courthouse and, on this particular occasion, a Sunday evening, was seen carrying an attaché case which he cradled on his lap, rather than placing it on the floor and seated himself, after arriving late, in the rear of the courtroom, instead of his customary, front row station, does not give rise to a reasonable suspicion that the attaché case contained a bomb. Nor may one’s reputation or political affiliation be the primary basis for initiating a search. (See United States v Harris, 403 US 573, 582; Rice v Wolff, 388 F Supp 185, affd 513 F2d 1280, revd on other grounds sub nom. Stone v Powell, 428 US 465; also Nathanson v United States, 290 US 41, 46; Spinelli v United States, 393 US 410, 414.)

Furthermore, defendant’s refusal to submit to a search of his attaché case or to co-operate does not constitute an unusual activity which would trigger a reasonable suspicion that he was carrying a bomb. He had a constitutional right to refuse to be searched (People v Howard, 50 NY2d 583, 590), and his refusal to submit “cannot constitute a criminal act” (People v Schanbarger, 24 NY2d 288, 292). The arrest which followed was a pretext, intended solely to facilitate the desired search. Such arrests have been uniformly condemned. (See Bowling v United States, 350 F2d 1002; Taglavore v United States, 291 F2d 262; Williams v United States, 418 F2d 159, affd 401 US 646; see, also, Sibron v New York, 392 US 40, supra; People v De *361Bour, 40 NY2d, at p 224; People v Cantor, 36 NY2d, at p 114; People v Stewart, 41 NY2d, at p 69.)

The majority finds that, although defendant was told that he was “under arrest”, no arrest, in fact, took place. We disagree. “Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment”. (People v Cantor, 36 NY2d, at p 111; see Terry v Ohio, 392 US, at p 16.) That the court officers did not believe an arrest had occurred before seizure of the gun is of no moment. (See Bailey v United States, 389 F2d 305, 308.)

The illegality of the seizure, in turn, tainted the discovery of the weapon. Evidence discovered as a direct result of an illegal seizure must be suppressed as “the fruit of the poisonous tree.” (Wong Sun v United States, 371 US 471; see Miller v United States, 357 US 301; Silverthorne Lbr. Co. v United States, 251 US 385.) Nor was the taint of the illegal detention dissipated by defendant’s subsequent removal of his hands from the counter and movement of them toward his midsection. Since the “arrest” was designed to uncover a bomb or other incendiary device the court officers’ conduct “had a quality of purposefulness” (Brown v Illinois, 422 US 590, 605). Such purposeful exploitation taints the discovery of the weapon. (Cf. People v Boodle, 47 NY2d 398, 404.)

Accordingly, the order suppressing the gun should be affirmed.

Kupferman, J. P., and Lupiano, J., concur with Markewich, J.; Sandler and Sullivan, JJ., dissent in an opinion by Sullivan, J.

Order, Supreme Court, Bronx County, entered on July 1, 1980, reversed, on the law and the facts, and the matter remanded to Supreme Court, Bronx County, for further proceedings.

. United States v Albarado, 495 F2d 799; United States v Skipwith, 482 F2d 1272; United States v Davis, 482 F2d 893.

. N. M. v Anker, 607 F2d 588.

. United States v Ellis, 547 F2d 863.

. United States v Sihler, 562 F2d 349.