People v. Miller

Sullivan, J. P.,

dissents in a memorandum as follows: Since, in my opinion, the officers who approached defendant had reasonable grounds to believe that he was armed, their conduct in stopping and frisking him was justified. Accordingly, I would affirm the judgment.

When the officers arrived at the scene they had been privy to the contents of a radio transmission reporting that three men had been at an abandoned building at 277 Edgecombe Avenue, and that one of them, a short Jamaican man wearing a tan leisure suit, was carrying a gun in his waistband. The man’s companions were reported to be black, and one of them was described as slightly taller and dressed all in gray. The three men reportedly ran into the basement, and the gun wielder looked as though he was going to shoot someone.

Officer Patterson testified that because of a distortion in the transmission she thought the second man was described as wearing a gray shirt and black pants. She also testified that she knew from prior experience that the basement of 277 Edgecombe Avenue was a location from which drugs were sold.

While the other officers who had responded were inside the building, Officer Patterson, who remained outside the building with Officer Popp, noticed defendant and another man sitting on the stoop of 277 Edgecombe Avenue. A third man, dressed in a brown uniform, was in front of the building sweeping the sidewalk. Defendant was wearing an opened gray shirt with a black tank top underneath and black pants. The man in the brown uniform was approximately 5 feet, 3 inches tall. No one else was on the street.

Officer Patterson, standing about 12 feet away, observed defendant remove his hand from inside the front waistband area of his pants. Since she knew from prior experience that *339this gesture could mean that defendant had a gun, she turned to Officer Popp and asked if he knew whether these men had been “checked”. While Officer Patterson trained her gun on him, Officer Popp began to pat down the other man on the stoop. Officer Patterson then patted down the outside of defendant’s clothing, noting a hard object which felt like a gun in the groin area. She turned to Officer Popp and said “he has something in his pants.” Officer Popp then pushed Officer Patterson aside, opened defendant’s pants, and pulled out a loaded .38 caliber pistol.

Defendant, who had previously been convicted of robbery, grand larceny and petit larceny, testified that he was standing or sitting in front of 277 Edgecombe Avenue with his friend Richard Lucas for about 8 to 10 minutes when two patrol cars arrived. There were at least three other persons on the street. All the officers ran into the building. A woman police officer approached defendant and asked him if he had seen three people run into the basement. After he said he had not, the officer asked Lucas the same question. The officer then told defendant to turn around, and she subsequently patted him down and felt the gun which he carried in his jockstrap. After a male police officer completed the search and recovered the gun, defendant was arrested. He was not given his Miranda warnings.

The court credited the police officers’ testimony, and denied in its entirety defendant’s motion to suppress the gun and statements. The court found that the officers had reason to fear for their safety when, in responding to a call reporting a man with a gun at a specified location in a high-crime area known for its drug activity, one of them saw defendant, who partially matched the description of the accomplice of the reportedly armed man, reach into his waist, thereby arousing the officer’s suspicions that he was pushing a gun deeper into his pants.

In opposing a motion to suppress, “[T]he People must take the initiative to show that in view of all the circumstances the action taken was justified”. (People v Benjamin, 51 NY2d 267, 270, citing People v Lypka, 36 NY2d 210.) That burden has been met here. The majority, too casually in my view, dismisses defendant’s conduct in reaching into his waist as suspicious behavior because it was equivocal. That persons may, on occasion, for a variety of reasons, make similar hand movements does not require the experienced police officer on the scene to disregard potentially dangerous conduct and jeopardize his safety. As innocuous as the motion might seem *340to the untrained eye, it is an incontrovertible fact that defendant had a gun secreted in his pants.

Nor can I agree with the majority’s characterization of the officers’ testimony as to their recollection of the radio report as incredible as a matter of law. Three men were reported at the building, one of whom was described as short, dressed in tan and carrying a gun; another was described as being dressed all in gray. Officer Patterson testified that because of a distortion in the radio transmission she thought one man had been identified as wearing a gray shirt and black pants, which was what defendant was wearing. Officer Popp, called by defendant, testified that she could only recall a description of a man wearing a gray shirt. Aside from the discrepancy in the color of the pants, the testimony was not so outrageous as to warrant a finding that it was categorically false and tailored to meet constitutional exigencies.

In People v Bezares (103 AD2d 717), upon which the majority relies, one officer had testified seeing four men and his partner only two. This major discrepancy was used to bolster the finding that the officer had tailored his testimony as to what he heard on the radio report regarding the colors of the shirts the suspects were wearing. Here, three men were reported at the identified address, and three men were observed at the location when the officers arrived. One of them was wearing gray, as was reported on the radio; another was short (5 feet, 3 inches) and wearing a brown (tan?) uniform. All were black, as described. The parallels between what was reported and what the officers saw at the scene are close enough not to disturb the findings of the suppression court, which, with the opportunity that this court does not have of observing the demeanor of the witnesses, credited the officers’ testimony.

When an officer responds to a radio run and finds no manifest indicia of criminal activity his investigation must concededly be less intrusive than if he were to observe conduct evincing such activity. At the same time, however, he must be permitted to combine his prior knowledge, i.e., a report he had heard on the radio, with his own assessment and corroboration of the events with which he finds himself involved, and be able to undertake certain reasonable self-protective and investigatory steps. (People v Chestnut, 51 NY2d 14, cert denied 449 US 1018; People v McRay, 51 NY2d 594.) "[A] radioed tip may have almost no legal significance when it stands alone, but * * * when considered in conjunction with other supportive facts, it may * * * collectively, *341although not independently, support a reasonable suspicion justifying intrusive police action.” (People v Benjamin, 51 NY2d, at p 270.)

Clearly, an officer may conduct a frisk of a person for weapons without having probable cause to arrest when the officer has reason to believe that the person is armed and may be dangerous. (CPL 140.50 [1]; Terry v Ohio, 392 US 1, 14; People v Carney, 58 NY2d 51.) Here, the radio run description of a man dressed in "all gray” who was in the company of a man with a gun and wearing a tan suit provided the officers with enough information to stop and question those individuals at the scene matching the descriptions. Since defendant, with his gray shirt, partially fit the description of the armed man’s companion, the officers’ suspicions were reasonably aroused that he might be one of the persons described in the radio run. (See, e.g., People v Fernandez, 58 NY2d 791, 793.) At that point the officers were entitled to approach defendant and request information. (People v De Bour, 40 NY2d 210, 213.)

While the radio run did not indicate that the man in gray had committed a crime, additional factors independently observed by officers at the scene, including any furtive movements by suspects indicating that weapons may be present, can also give the officers reason to investigate. (People v Russ, 61 NY2d 693, 695; People v Benjamin, 51 NY2d, at p 271.) Here, Officer Patterson’s knowledge that drugs were dealt at the given location could also reasonably have led her to conclude that defendant might be armed with his own gun. (See, People v Soler, 92 AD2d 280, 286.) In any event, when she observed him reach into his waistband before any investigation could begin she had reasonable suspicion to believe that he might be in possession of a handgun. Under the circumstances, the officers were justified in conducting the limited, self-protective frisk which followed before making any inquiry. (See, People v Foster, 83 AD2d 282, 286-287.)