People v. Tratch

— Appeal by the People from an order of the Supreme Court, Queens County (Rotker, J.), dated April 20, 1982, which, after a hearing, granted defendant’s motion to suppress physical evidence.

Order reversed, on the law and the facts," defendant’s motion to suppress denied, and matter remitted to Criminal Term for further proceedings.

The evidence adduced at the suppression hearing was uncontradicted. On January 29, 1982, at about 7:45 a.m., a police officer on radio motor patrol duty received a radio run that there was a man with a gun at a luncheonette at Metropolitan Avenue and 116th Street, Queens County. The officer immediately proceeded to that busy location, where he observed several other police officers speaking with a “white female, grey-haired” pedestrian. The officer overheard the woman say that “a man was carrying a shopping bag walking on Metropolitan Avenue, that he had a gun”. The officer noticed a “tall man in * * * blue coat and blue jeans” carrying a shopping bag who was walking in the vicinity. Upon inquiry, the woman told the officer that it was the man with the blue coat and blue jeans who had the gun. The officer thereupon jumped back into his radio car and followed the man. Shortly thereafter, the officer approached the man, the defendant herein, drew his revolver and called out “turn around, it is the police”. After defendant turned around, the officer told the defendant to put the shopping bag down and raise his hands. The defendant complied with the officer’s request. The officer then lifted the shopping bag, and from its weight, thought that “it contained a gun”. He opened the shopping bag and observed a vinyl carrying case which was “designed to carry a revolver”. The officer opened the case and found an unloaded “22 caliber long rifle”. The officer then immediately searched the defendant and found a loaded ammunition clip with 10 rounds in defendant’s right-hand coat pocket. The defendant was handcuffed, put in the radio car and brought to the station house.

In granting defendant’s motion to suppress the gun and the ammunition clip, Criminal Term held that (1) the quantum of information possessed by the police officer rose only to the level of reasonable suspicion and only justified a frisk of the defendant’s person for the officer’s protection and (2) the intrusion by *504the police officer into defendant’s shopping bag constituted a search which was constitutionally infirm in view of the absence of probable cause.

We disagree with the reasoning and holding of Criminal Term.

It is beyond dispute that the detailed description of a man with a gun, received by the police officer from the woman pedestrian, rose to the level of reasonable suspicion and gave the police officer the right to frisk the defendant’s person for weapons, in order to protect himself, even without any preliminary inquiry (People v Green, 35 NY2d 193; People v McLaurin, 43 NY2d 902; Terry v Ohio, 392 US 1; cf. Adams v Williams, 407 US 143).

Although the police officer did not exercise this right, he took an equally proper precautionary measure for his own safety when he lifted, opened and essentially “frisked” the shopping bag which was in defendant’s possession at all times and which could have easily contained a gun (People v Moore, 32 NY2d 67; People v Lambert, 84 AD2d 849; People v De Jesus, 92 AD2d 521; Commonwealth v Anderson, 366 Mass 394). Upon the subsequent discovery of a vinyl carrying case which was “designed to carry a revolver”, the officer acted reasonably in opening the case and seizing the gun (People v Moore, supra; People v De Jesus, supra; Michigan v Long, 463 US 1032, 103 S Ct 3469; United States v McClinnhan, 660 F2d 500). In this regard, we reiterate the admonition of the Court of Appeals in People v Chestnut (51 NY2d 14, 23): “Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented.”

Once having properly seized the gun, the police officer had probable cause to search defendant’s person and seize the ammunition clip.

Accordingly, the order granting defendant’s motion to suppress must be reversed and defendant’s motion to suppress must be denied. Titone, J. P., Mangano and Thompson, JJ., concur.