People v. Castro

Murphy, P. J., dissents in a memorandum as follows:

The facts are lamentably spare. At 12:30 a.m., on March 7, 1982, plain-clothes Police Officers King, Mancuso and Escobar arrested three men on the corner of Bethune and Washington Streets for loitering for the purpose of engaging in prostitution. One of the arrested men, a transvestite of unknown identity, told Officer King that a Hispanic man clearly visible across the well-lit, little-trafficked street had a gun, and that this same man had threatened to "rip off a queen.” The police officers immediately crossed the street, and without any preliminary inquiry, had defendant and his two companions place their hands upon a nearby fence. A pat-down search of all three men produced a .22 caliber automatic revolver from defendant’s waistband. On returning to their car with defendant, the officers discovered that their anonymous informant had fled. He has been neither seen nor heard from since.

Defendant moved to suppress the gun. At the suppression hearing Officer King explained that he credited the anonymous informant’s tip because "the way he said it, I don’t know, the way he came out with it, it seemed like good information.” The motion to suppress was denied and defendant was convicted of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]).

The only question posed on this appeal is whether the search of defendant violated his 4th Amendment right to be free from unreasonable searches and seizures, thereby necessitating suppression of the illegally obtained evidence upon which defendant’s conviction is predicated.

It is by now well established that a police officer may stop and frisk a suspect only where "the officer [is] able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v Ohio, 392 US 1, 21; People v Carney, 58 *437NY2d 51, 53-54.) The articulable facts required by Terry may be supplied by a reliable informant, or that may be the product of the officer’s own observations, or a combination of the two when either alone would be insufficient. Yet whatever its source, the information must be specific because "specificity in the information upon which police action is predicated is the central teaching of * * * Fourth Amendment jurisprudence [citations omitted].” (Terry v Ohio, supra, p 21, n 18.)

In this case, the police acted exclusively upon information supplied by an anonymous informant, by definition a weak source. (People v De Bour, 40 NY2d 210, 224; cf. People v Green, 35 NY2d 193, 195; People v Moore, 32 NY2d 67, cert denied 414 US 1011; People v Francis, 108 AD2d 322, 324.) The informant was completely unknown to the police and to those arrested with him. Subsequent efforts to locate the informant proved futile. There was manifestly no basis to credit the informant’s tip.

The People urge, relying on People v Bruce (78 AD2d 169), that Officer King was able to assess the informant’s credibility based on his appearance and demeanor. Yet, the informant in Bruce, a tall, neatly dressed, middle-aged man with short grayish hair, at least presented conventional features which might, in some measure, support the belief, hov/ever superficially founded, that the informant was responsible and trustworthy. Here, by contrast, the informant was a transvestite whose somewhat exotic appearance and demeanor cannot seriously be advanced as indicia of reliability. Nor is the belief in the informant’s credibility, or capacity for responsible conduct, enhanced by his immediately preceding arrest for loitering for the purposes of prostitution.

Police action must be justified at its inception. (People v De Bour, supra, p 215; People v Francis, 108 AD2d 322, 324, supra.) In the present case, justification depends on the existence of the specific and articulable facts required by Terry (supra). (See also, People v Russ, 61 NY2d 693, 695.) Such facts are manifestly absent. Officer King was notably inarticulate when he tried to explain his reliance on the anonymous informant, stating: "I don’t know, the way he [the informant] came out with it, it seemed like good information.” An anonymous tip does not become the basis for police action simply because it seems good. Minimally, there must be some articulable fact indicating why the tip seemed good, otherwise Terry’s call for specific and articulable facts is all but meaningless.

It is undisputed that an anonymous tip of gun possession *438alone does not justify a frisk. (People v Benjamin, 51 NY2d 267, 270; People v Francis, 108 AD2d 322, 325, supra.) The only additional information supplied by the informant, that defendant had threatened to "rip off a queen”, does not appreciably increase the pool of articulable facts upon which the immediately ensuing police action rested. The informant did not specify, nor was he asked, who was to be "ripped off”, when the crime was to occur, or at what time. The circumstances under which the alleged threat was made were not described, and the police made no attempt to inquire further. The police did not even ascertain whether the informant had seen the gun with which the impending crime was presumably to be committed. (Compare, People v Klass, 55 NY2d 821.) No other details tending to substantiate the tip were elicited from the informant, nor were there other corroborative circumstances.

After speaking with the informant, the police officers immediately approached defendant. Defendant did not move suspiciously (see, People v Benjamin, supra; People v Bruce, supra, p 173); he did not refuse to respond to questions because he was asked nothing (see, People v Russ, supra); there was no suspicious bulge in defendant’s clothing (see, People v De Bour, supra, p 213); neither defendant nor his movements were concealed by darkness since the street was well lit (see, People v McLaurin, 43 NY2d 902, revg on dissent of Nunez, J. 56 AD2d 80, 84-85). Nevertheless, defendant and his companions were summarily placed up against a fence and frisked.

We are left with a conviction resting upon a search performed in exclusive and inexplicable reliance on a conclusory, nonspecific tip by an anonymous arrestee who promptly escaped from police custody upon investigation of the tip and has not been heard from since. A search under these circumstances affords innocent citizens little or no protection against police intrusions instigated by irresponsible meddlers and those dangerously seeking to divert police resources to improper ends. The entirely unwarranted police action in this case not only violated the 4th Amendment rights of defendant and, incidentally, his two wholly innocent companions, but it allowed an arrestee to escape. Neither public safety nor constitutional guarantees against unreasonable searches can be secured when the police are effectively put at the disposal of anonymous tipsters.

The judgment appealed from should be reversed; defendant’s motion to suppress should be granted, and the indictment against him dismissed.