People v. Behlin

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Owens, J.), entered February 20, 1980, as granted that part of defendant’s motion which was to suppress certain physical evidence. Order reversed insofar as appealed from, on the law and the facts, motion denied as to the physical evidence and case remanded to Criminal Term for further proceedings consistent herewith. Indicted for criminal possession of a weapon (i.e., a pistol) in the third degree (Penal Law, §265.02), defendant moved to suppress the pistol as illegally obtained by the police. At the hearing of this motion, the People produced William Martin, the police officer who had seized defendant’s pistol. Martin testified that while with his partner on radio motor patrol in the early morning hours of September 27, 1978 he had observed a vehicle traveling in the wrong direction on a one-way street. He stated that he and his partner had stopped the vehicle and approached it on foot, and that while his partner spoke with the driver, who had gotten out of the vehicle, he (Martin) had observed a bulge in the driver’s right-hand pocket. Martin further testified that the driver had been wearing tight pants, and that the bulge had appeared to reveal the imprint of a gun, which he then seized, after frisking the driver. Finally, Martin identified the defendant as the driver of the vehicle and the person from whom he had taken the gun. Defendant, the only other witness to testify at the hearing, denied almost entirely the police officer’s account. He stated that, after he had been stopped for what the police charged was a traffic violation, he had been held at gunpoint by one officer while the other searched his vehicle and discovered the gun in question under the driver’s side of the front seat. Criminal Term rendered an oral decision after the hearing. In reviewing the testimony it observed that defendant’s account was as credible as that of the police officer. Nevertheless, it stated that, even if the officer’s testimony were credited as true, it failed to prove the existence of probable cause to search the defendant. We reverse. Initially, it is our determination that Police Officer Martin took the gun in question from defendant’s pocket, after having observed a bulge that revealed the imprint of a gun and after having frisked the defendant. We also find that the search and seizure took place while defendant was stopped for a traffic violation, which the police had observed, and that this entire incident occurred in the early morning hours of September 27, 1978. On the issue of the search and seizure, we note that CPL 140.50 (subd 3) predicates a search for weapons on a police officer’s reasonable suspicion that the individual to be searched is presently dangerous. (People v Moore, 32 NY2d 67, 70; see Sibron v New York, 392 US 40, 64.) Thus, on the particular facts of this case, we must decide whether Police Officer Martin could have reasonably suspected that he and his partner were in danger of physical injury and whether defendant posed a threat to their safety. (See People v Chestnut, 51 NY2d 14, 21-22; see, also, Pennsylvania v Mimms, 434 US 106; Terry v Ohio, 392 US 1; People v Prochilo, 41 NY2d 759; People v Green, 35 NY2d 193.) Given the lawfulness (cf Delaware v Prouse, 440 US 648), time and circumstances of the initial stop, and Officer Martin’s observation of the imprint, configuration or outline of a gun, it was reasonable for him to suspect that the defendant posed a threat to his own safety and that of his partner. (See People v Prochilo, supra, p 761.) The search was, therefore, warranted, and the seizure of the gun valid. Mangano, Cohalan and Weinstein, JJ., concur.