The defendant was charged with possession of weapons as a felony and reckless endangerment in the first degree. He moved to suppress the evidence against him on the ground that his constitutional rights had been violated. Following a hearing this motion was denied, the court finding that he had produced the weapon of his own volition. Shortly thereafter the defendant pleaded guilty to the crime of attempted possession of a weapon, a class E felony.
Expressed in its broadest terms the issue here is whether the defendant was subjected to an unreasonable search and seizure
On the night in question the defendant was with a female companion. Between 2:00 A.M. and 2:30 A.M. they were first observed by a surveillance team of three plain-clothes police officers as the couple were visiting with a friend in Brooklyn. One of the policemen, Officer Jacaruso, testified that from a nearby rooftop he was able to see the defendant and his female companion through the kitchen window. They were smoking cigarettes which the officer testified he believed to be marijuana.
This vigil lasted until the defendant and his companion emerged from the building, entered the defendant's automobile and drove away. The plainclothesmen, Jacaruso, Olson and Shields, followed in a private unmarked vehicle, a 1963 Chevrolet. The defendant drove directly to Queens where the plainclothesmen observed him park his car in front of a house which they later discovered was his residence. At this point, approximately 3:00 A.M., Officer Jacaruso testified that they decided to stop the defendant and ascertain his identity.
The officer's testimony at the suppression hearing established that when the defendant pulled to the curb in front of his home, the unmarked car halted some 20 to 40 feet behind the defendant's car and Officers Jacaruso and Shields exited. Pursuant to an impromptu plan, Officer Olson drove the private vehicle past the defendant's car and blocked it from moving forward while Jacaruso and Shields walked in a nonchalant manner along the sidewalk toward the defendant. Then Olson emerged from his vehicle and moved toward the defendant who had by this time alighted from his own car. The defendant testified that he was holding his dog and had his keys in his hand when he saw three men in street clothes approaching him from different directions.
The version of the ensuing incident, found credible by the trial court, was that of Officer Jacaruso. He testified that before
At the hearing Cantor denied ever drawing the pistol, asserting "[I] did not sir, no. I didn't have time, even if I wanted to. As soon as I got out of my car, they were just on top of me from three different angles — it is impossible, they were coming at me from three different directions, I had the dog with me and keys in my hand, it was impossible."
After arresting him the police conducted a full search of the defendant's person which turned up a quantity of barbiturates and marijuana. The officers then searched the defendant's vehicle and found a pipe on the console which, they concluded, contained marijuana residue. The defendant's female companion who was sitting in the defendant's vehicle was also placed under arrest and a search of her pocketbook revealed a quantity of pills and marijuana.
The defendant contends that the action of the police constituted an unlawful seizure. The People counterargue that the stop and subsequent search of the defendant was reasonable under the circumstances. We agree with the defendant.
The threshold question is whether, on the facts of this case, there has been a search or a seizure. If there has been a search or a seizure, then its legality depends on the presence of probable cause or whether it fits within the narrow exception carved out by the Supreme Court in Terry v. Ohio (392 U.S. 1) and Adams v. Williams (407 U.S. 143) where forcible street encounters were found to have been properly initiated by the police and reasonable under the circumstances.
Here the People have disclaimed reliance on probable cause, so we must determine whether the conduct of the police in this
Applying these principles to this case, we note the trial court's finding that the defendant produced the pistol of his own volition and that the seizure of the weapon occurred only after the arrest. Accordingly, we cannot and do not consider the propriety of the search, if indeed there was one. Rather we focus on the initial seizure of the defendant's person noting, however, that if the initial stop of the defendant was unlawful the evidence thereafter acquired must be suppressed absent an independent establishment of probable cause. (See Chambers v. Maroney, 399 U.S. 42; Rios v. United States, 364 U.S. 253; Henry v. United States, 361 U.S. 98; People v. Loria, 10 N.Y.2d 368.)
Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment (Terry v. Ohio. supra). This is true whether a person submits to the authority of the badge or whether he succumbs to force. Here the defendant was deprived of his freedom of movement when he was encircled by three police officers as he stood alongside his car which was blocked by the police vehicle.
We place no significance on the fact that the defendant did not know he was being accosted by the police thinking instead that he was about to be robbed. The crucial factor was that depriving the defendant of his freedom of movement was effected by the police. Constitutional protections do not vanish merely because the victim of the unlawful governmental action fails to perceive the identity of the violator as a police officer.
Other than to consider it a seizure, we have consciously eschewed the semantic trap of labeling the police action. The proscription against unreasonable searches and seizures is designed to prevent random, unjustified interference with private citizens whether it is denominated an arrest, investigatory detention, or field interrogation (Davis v. Mississippi, 394 U.S. 721; Cupp v. Murphy, 412 U.S. 291, supra; see, generally, La Fave, Arrest: The Decision to Take a Suspect into Custody; Reich, Police Questioning of Law Abiding Citizens, 75 Yale L. J. 1161). Street encounters between the patrolman and the average citizen bring into play the most subtle aspects of our constitutional guarantees. While the police should be accorded great latitude in dealing with those situations with which they are confronted it should not be at the expense of our most cherished and fundamental rights. To tolerate an abuse of the power to seize or arrest would be to abandon the law-abiding citizen to the police officer's whim or caprice — and this we must not do. Whenever a street encounter amounts to a seizure it must pass constitutional muster.
In New York the authority to intercept persons on the street is derived from two sources, the stop-and-frisk law (CPL 140.50) and the common-law power to inquire. Although the former is more narrowly circumscribed than the latter, because it entails a greater intrusion on the privacy of the individual, neither may be exercised in derogation of the State and Federal Constitutions.
Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge
Here the record is barren of any objective evidence evincing criminal activity. Considering the long distance and less than credible observations made in Brooklyn, abandoned by the prosecution, and not adopted by the trial court as a justification for the police action, the officers did not observe the defendant participate in any criminal acts. Moreover, the police lacked independent knowledge or information from an informer, reliable or otherwise, to indicate that a crime had been committed (People v. Hunter, 30 N.Y.2d 774) or that the defendant was engaged in criminal pursuits (cf. People v. Arthurs, 24 N.Y.2d 688). Nor was the defendant's behavior furtive or evasive (People v. White, 16 N.Y.2d 270; see, generally, Search and Seizure: "Furtive" Movement or Gesture as Justifying Police Search, Ann., 45 ALR 3d 581; Commonwealth v. Jeffries, 454 Pa. 320) or dangerous to the safety of the police or others (Warden v. Hayden, 387 U.S. 294). Indeed, the events preceding the unlawful stop could not even be classified equivocal or suspicious (see People v. Corrado, 22 N.Y.2d 308). Therefore, we conclude that the seizure under these facts was not predicated on specific, articulable facts and hence not justified under the Criminal Procedure Law.
Turning to the common-law authority of the police to make investigative inquiries, we note that this authority does not give the police a license to violate the Constitution (cf. People v. Rivera, 14 N.Y.2d 441, 448
Having concluded that the initial seizure of the defendant was unlawful, the fruits of that unconstitutional seizure must be suppressed. The pistol was revealed as a direct consequence of the illegal nature of the stop. Consequently, the conviction should be reversed and the accusatory instruments dismissed.
Order reversed, etc.