People v. Clements

Murphy, P. J., and Carro, J.,

dissent in a memorandum by Carro, J., as follows: I dissent for the reasons stated by the hearing Judge after remand. The defendant was out of the car in full view of the officer. His hands were fully exposed and were occupied in fumbling through his wallet for his identification. His “weighted” pocket did not show the form or outline of a weapon. There was no “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” (People v Prochilo, 41 NY2d 759, 761). We are concerned with the safety of the officer, and we are concerned with the right of privacy and personal security of the individual. It is not always easy to reconcile the two. We must balance the individual’s interest to be unfettered by official interference, with society’s interest in stopping crime without subjecting the policeman to inordinate physical danger (Terry v Ohio, 392 US 1, 21-22; People v Stewart, 41 NY2d 65, 69-70). Before permitting the interference, it must be shown that the objective facts support the subjective concern for safety. “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he 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 order of Supreme Court, New York County (Galligan, J.), granting the motion to suppress the weapon, and the judgment of said court (Haft, J.) dismissing the indictment, should be affirmed, on the law.