People v. Miller

Judgment of the Supreme Court, New York County (Beatrice Shainswit, J.), rendered May 23, 1984, which convicted defendant, upon his guilty plea, of criminal possession of a weapon in the third degree, is reversed, on the law and the facts, suppression granted and the indictment dismissed.

Defendant was indicted on a single charge of criminal possession of a weapon in the third degree, based upon the seizure of a loaded .38 caliber gun on his person. The sole issue on this appeal is the propriety of that search.

At 9:24 a.m. on August 5, 1983, the police received an anonymous telephone call from a person saying that he was at 219 Edgecombe Avenue. He stated that a short, black, Jamaican man, wearing a tan leisure suit, had taken a gun out of a case and placed it in his waistband; that the man had been standing with two other black men, one of whom was dressed all in gray and was a little taller than the gun carrier; that all three men had run into the basement of 277 Edgecombe Avenue; and that the man carrying the gun looked as if he was going to shoot someone. (A tape of this 911 call was played to the court.)

Five minutes later, at 9:29 a.m., a radio run was transmitted stating that three men had entered the basement apartment at 277 Edgecombe Avenue; that a man with a tan leisure suit had a gun in his waist and a second man in the party was wearing all gray. (A tape of the radio run was also played to the court.) The transmission was received by Officers Pátterson and Popp, in separate patrol cars, as well as by other officers.

Officer Patterson, the sole prosecution witness, claimed that due to distortion in transmission, she heard the second man’s description as wearing a gray shirt and black pants. Further, she testified that she knew the specified address as a drug-dealing location. Officer Popp, called as defendant’s witness, testified that his sole recollection of the description of the second man was that he was wearing a gray shirt. As Patterson’s car was nearby, it took no more than a minute to reach the reported location. Three other patrol cars were already at the location, including the one which had brought Officer Popp to the scene.

Patterson joined Popp on the street in front of the building, all other officers having run into the basement of the building. In front of the specified building, she noted defendant wearing *336an open gray shirt with a black tank top underneath, and black pants; a man approximately 5 feet, 3 inches tall, in a brown uniform, sweeping the sidewalk, whom she assumed was the building’s superintendent; and a third man sitting on the stoop of the building with defendant. No one else was on the street. Initially, Patterson paid little attention to these three men because she believed that they had been checked out by the officers who had arrived earlier; further, they made no attempt to leave the scene.

However, three to four minutes later, Patterson, standing 12 feet away from defendant, observed him remove his hand from inside the front waistband area of his pants, consistent with either tucking in his shirt or, in her experience, the act of a gun carrier pushing the weapon down to make sure it does not slip out. She asked Popp if anyone had checked these men. Popp said no and proceeded to frisk the man sitting on the stoop with defendant. Patterson drew her gun and pointed it at that individual. No weapon was recovered. Patterson then frisked defendant, while Popp drew his gun and pointed it at defendant. She felt a hard object which felt like a gun in defendant’s groin area. Officer Popp completed the search and pulled out the loaded .38 from defendant’s pants. Defendant was then arrested, taken to the station house and given his Miranda warnings. Thereupon, defendant stated he had purchased the gun on the street for $75.

Defendant, 6 feet, 1 inch, testified in his own behalf that he had been in front of the building with his friend, Richard Lucas, 8 to 10 minutes before the police arrived. He was wearing blue jeans, a black tank top, and carried a gray shirt with a white collar over his arm because it was too hot to wear it. There were at least three other individuals on the street when the police arrived. A woman officer asked him and his friend whether they had seen three people run into the basement. After both answered no, defendant was directed to turn around and was patted down, with a male officer completing the search by pulling the gun out of his jockstrap. Defendant denied he had made any effort to conceal the gun prior to the conduct of the pat down. Defendant also testified he was arrested but not given his Miranda warnings, and on the way to the station house he told the officers he had not done anything wrong because he had purchased the gun on the street for $75 only to protect his wife, who had problems with burglars.

Criminal Term denied the suppression motion, relying essentially on the combination of the radio run description, *337defendant’s gray shirt, and defendant’s waistband gesture to support the stop and frisk. However, the combination of the information contained in the anonymous tip and defendant’s equivocal waistband gesture did not justify the police intrusion. (People v Benjamin, 51 NY2d 267, 271; People v Roberts, 94 AD2d 237.)

Utilization of information obtained from an anonymous tip must meet a specific standard, a "showing that the information conveyed was so specific and congruous with that which was actually encountered that its reliability reasonably could have been assumed”. (People v Benjamin, 51 NY2d, at p 270; People v McLaurin, 43 NY2d 902, revg under dissenting opn below 56 AD2d 80, 84.) Measured by this standard, the tip was not self-verifying and failed to cast suspicion on defendant. Clearly, defendant was not the described gun wielder of 10 minutes earlier, as he was not "very short” and wore nothing resembling a tan leisure suit. Indeed, no such person was ever found by any officer. Nor was there any basis to believe that defendant was such individual’s described "accomplice”, to whom the gun might have been passed in the interval between the caller’s observation and the officers’ arrival. He was taller than the description of that individual, certainly did not match the specific description of wearing "all gray”, and was sitting calmly in front of the described building, not only as the first police officers arrived, but for nearly five minutes thereafter. The officers’ testimony that they either heard the radio run description of the second man as one wearing a gray shirt and black pants or remembered a description only of a gray shirt appears to have been patently tailored in an effort to nullify constitutional safeguards. (People v Bezares, 103 AD2d 717.)

In any event, the officers’ actions must be judged against the actual content of the radio run, not on the basis of their claimed mistaken impression of it. (People v Lypka, 36 NY2d 210, 214.) Here, the officers’ actions belied their claimed suspicion of defendant being armed. Their fellow officers had all run right past defendant and Officers Patterson and Popp ignored defendant and his companions for three to four minutes. This was hardly the behavior of officers with specific information and a reasonable suspicion that defendant or his companions were the subject of the radio run. (See, People v Benjamin, supra, at p 270.)

Thus, the only predicate for the frisk was defendant’s subsequent hand movement. It should be noted that even this stated reason may be doubted in light of the fact that the *338officers frisked defendant’s companion first, after the claimed gesture by defendant alone. In any event, this testimony did not include any observation of a bulge in the area of the gesture. Officer Patterson conceded that the defendant could have been doing anything, including tucking in his shirt. Behavior which is susceptible of innocent as well as guilty interpretation cannot constitute probable cause and "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand [citations omitted].” (People v De Bour, 40 NY2d 210, 216; see also, People v Farrell, 90 AD2d 396, affd 59 NY2d 686; People v Allen, 109 AD2d 24, 32.) Concur — Asch, Fein, Kassal and Ellerin, JJ.