People v. Roberts

Sullivan, J. P. (dissenting).

The issue is the legality of police conduct in stopping three individuals who had been observed, apparently “casing” stores in contemplation of a robbery, and frisking one of them, the defendant herein, who had been seen reaching into his waistband.

On August 8, 1981, at approximately 5:00 p.m. on a sunny, summer afternoon, Housing Officers Owens and Riley, in uniform and on patrol in a marked police car, espied three men, each standing in front of, and looking into, the window of separate but adjacent stores on the east side of Ninth Avenue between 17th and 18th Streets. Defendant was looking into the displayless window of a delicatessen, while the others were peering into a pharmacy and liquor store.

As the officers drove past the men, defendant moved his hand toward “the pit of his stomach”. Defendant’s conduct *244was characterized as “reaching into the front waistband of his pants.” When they saw the officers’ car the three men gathered together and then walked away toward 18th Street. Meanwhile, the officers decided to drive around the block. When they returned to Ninth Avenue they saw the same three men looking into the window of another delicatessen, a block away, near 19th Street. Again, they observed defendant reach inside his waistband.

The officers responded to this second incident by pulling their vehicle over to the curb on the west side of Ninth Avenue, halfway between 19th and 20th Streets, from where they could continue their observations. The three men began to walk away from the store after one of them had glanced in the officers’ direction. Without drawing their weapons the officers exited from their vehicle, halted the men, who were by now crossing Tenth Avenue, and directed them to place their hands on the patrol car. Defendant’s two acquaintances, who were stopped first, were not frisked. Defendant, hands in his pockets and trailing the other two by about 15 feet, was told to come over to the car where Officer Riley patted him down. A loaded handgun was found in the waistband where he had earlier been observed placing his hand. Arrested immediately and taken to the station house defendant, after receiving the Miranda warnings and agreeing to speak to Officer Owens, stated, when asked why he had the gun, that he “had some problems on 42nd Street with some Hispanics”.

After a combined Huntley and Mapp hearing the court, despite crediting the police testimony, suppressed the gun, finding that at most the officers were entitled to question defendant, but had no right to frisk him, especially since Officer Owens, the only witness at the hearing, never testified that he was in danger. The statement was suppressed as the fruit of a poisonous tree. We would reverse and deny suppression since we find, in balancing the government’s interest in the detection and apprehension of criminals with the potential encroachment upon an individual’s right to privacy and personal security (see People v DeBour, 40 NY2d 210, 215; Terry v Ohio, 392 US 1, 20-21), *245that the officers acted reasonably throughout the entire encounter.

“The touchstone of [any] analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” (Pennsylvania v Mimms, 434 US 106, 108-109, citing Terry v Ohio, supra, p 19.) In determining reasonableness a court is required to consider “whether or not the police action was justified in its inception and * * * whether or not * * * [it] was * * * related in scope to the circumstances which rendered its initiation permissible.” (People v De Bour, supra, at p 215.)

Reasonableness turns on an assessment of the entire situation confronting the police officer and not any single, isolated incident. “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.” (People v Chestnut, 51 NY2d 14, 23.) The reasonableness of an officer’s actions “must necessarily turn on the facts in each individual case.” (People v Green, 35 NY2d 193, 195.)

A police officer has a common-law right to inquire, which, “activated by a founded suspicion that criminal activity is afoot” (People v De Bour, supra, at p 223), “carries with it the right to interfere with a citizen to the extent necessary, short of a forcible seizure, to obtain an explanation” (People v Santiago, 64 AD2d 355, 359). Justification for more invasive police behavior is governed in New York by statute. CPL 140.50 (subd 1) provides that “a police officer may stop a person in a public place * * * when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the [P]enal [L]aw, and may [inquire] of him”. Under CPL 140.50 (subd 3) an officer may search an individual whom he has so stopped for a weapon if he “reasonably suspects that he is in danger of physical injury”. From a constitutional viewpoint, “[t]he officer need not be absolutely certain that the individual is armed; *246the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry v Ohio, supra, at p 27.)

Measured by these precepts the police conduct in this case comports with constitutional standards. Although suspicious at the outset by virtue of their observation of three men standing in front of three adjoining stores, each looking into the window of a different store, while one of the group, defendant, was reaching into his waistband, the officers chose not to stop them at that juncture, as they might have done, but instead drove their car around the block for further opportunity to confirm their suspicions. Once again they came upon the same group, this time in front of a different delicatessen. Again defendant was seen thrusting his hand toward his waistband. By now he and his two companions had been observed looking into four different store windows. Significantly, these stores — two delicatessens, a liquor store, and a pharmacy — were hardly the type usually associated with random window shopping. Officer Owens testified that the view into these stores was unobstructed. Furthermore, the officers could properly take into account the trio’s reaction to their presence. When the men first spotted the marked police car they gathered together and then moved on. As soon as they noticed the patrol car after it circled the block, they began to walk away from the delicatessen.

After circling the block and finding the same trio gathered in front of yet another store, a different delicatessen, and looking into its window, with defendant again reaching into his waistband, the officers fairly concluded that the men were “casing” the various stores and were justified in detaining them and investigating their actions. Fraught with danger in view of the suspicion that defendant was armed, the situation called for a quick, ydt measured, response. And that is precisely what occurred here. The officers’ conduct cannot be described as anything less than sound police work. Without drawing their guns, they merely approached the three men, and conducted a limited “pat-down” search of defendant, who at the time was the one suspected of carrying a weapon. “[T]he predicate estab*247lished defines the scope of permissible police conduct.” (People v Stewart, 41 NY2d 65, 66.) Once the predicate for the stop and inquiry is established — the suspicion that the trio was contemplating a holdup and that defendant was armed, as evidenced by his movements toward his waistband — the foundation was laid for the protective frisk. After all, as the Court of Appeals has noted, “[i]t is quite apparent to an experienced police officer, and indeed it may almost be considered common knowledge, that a handgun is often carried in the waistband.” (People v Benjamin, 51 NY2d 267, 271.) While ideally the lesser intrusion would have been to inquire first, in these violent times the oft-repeated adage “[t]he answer to the question propounded by the policeman may be a bullet” (People v Rivera, 14 NY2d 441, 446) remains a sapient truism. “It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety.” (People v Benjamin, supra, at p 271.)

That the testifying officer never stated that he feared for his life does not mean that his conduct exceeded constitutional limitations. His narrative obviated the need for any mechanical incantation of fear (see People v Fernandez, 88 AD2d 536; see, also, People v Samuels, 50 NY2d 1035; People v Clee, 89 AD2d 188, 191), since the potential for harm and the officers’ apprehension for their safety was self-evident.

Nor does the recent decision in People v Farrell (90 AD2d 396, affd 59 NY2d 686) compel a different result. There, the defendant and his companion were observed “casing” only one store by officers in plain clothes who were in an unmarked car. Thus, the Farrell suspects were not necessarily reacting to the presence of police officers when they left the scene, as is the case here. Moreover Farrell (supra) involved a single “tugging” gesture which occurred long after the officer’s attention had been drawn to the defendant. Most importantly, however, the police response here was far less intrusive. In Farrell the police followed the defendant’s car, blocked and surrounded it with a number of police cars, and then converged upon him with guns drawn. This court found the nature of the intrusion so excessive as to constitute an arrest (supra, p 399). In *248contrast, the stop here was a routine street encounter without drawn guns — an intrusion which obviously constitutes a lesser invasion of one’s freedom of movement.

Since defendant’s rights were not violated during the course of the justified and limited intrusion which yielded the loaded gun, defendant’s postarrest statement can no longer be considered the “fruit of a poisonous tree”. Accordingly, the order suppressing both the gun and the statement should be reversed and suppression denied.

Fein and Milonas, JJ., concur with Kassal, J.; Sullivan, J. P., and Ross, J., dissent in an opinion by Sullivan, J. P.

Order, Supreme Court, New York County, entered on January 5, 1982, affirmed.