Petition — State of New York v. Robert Earl

‘Me FILED °

October Term, 1976

No. W6- ] ] 16

THE PEOPLE OF THE STATE OF NEW YORK,

: Petitioner,

Vv.

ROBERT EARL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Joun J. Santucot

District Attorney

Queens County

Attorney for Petitioner

125-01 Queens Boulevard

Kew Gardens, New York 11415

(212) 520-2090

ANNAMARIE POLIORITI

Assistant District Attorney

| FER 19 1077

TABLE OF CONTENTS

PAGE

ERE ERAN ISET S, O AS EO EOE 1

tial 2

I a 2

Constitutional Provisions Involved ..............0........00000.... 3

ETE A CON es A TCD 3

Reasons for Granting the Writ ....0...0..0.0..0.....0..cccees 6

I 11

Appendices :

A—Order of the Supreme Court of the State of

RRS ye S re eel oenirameeron ds Al

B—Majority and Dissenting Opinions of the Appel-

late Division of the State of New York .............. A2

C—Decision of the Court of Appeals of the State of

RRA SS AAS aie ROD men Fey Ber ev A18

D—Judgment of the Court of Appeals of the State

| RAR Ree ARERR HO NN sel ABET AE A19

I!

TABLE OF AUTHORITIES

PAGE

Cases:

Adams v. Williams, 407 U.S. 143 (1972) 000000000000... 8

California v. Green, 399 U.S. 149 (1970) 20.00... 11

Hoffa v. United States, 385 U.S. 293 (1966) 000... 11

Katz v. United States, 389 U.S. 347 (1967) .................... 11

Lewis v. United States, 385 U.S. 206 (1966) ................ 10

Oregon v. Hass, 420 U.S. 714 (1975) oon, 10

Terry v. Ohio, 392 U.S. 1 (1968) o20..0.0occccccccccceeeee. 7, 8,9

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 8

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 11

Constitutional and Statutory Provisions:

United States Constitution

Fourth Amendment 200.00. 3, 5, 6, passim

Fourteenth Amendment, Section 1 .......................... 3

New York Constitution

SESE Re SC ICN Si 6n

United States Code

Title 28, Section 1257(3) .............0.c cece cceeeeeeees 2

New York Crimina! Procedure Law

EE id ne 3

eS 4n

Section 470.05 .0....0....0.....ccooooeceeee. Pa AN ARE 5n

IN THE

Supreme Court of the United States

October Term, 1976

THe PEOPLE oF THE State oF NEw York,

Petitioner,

Rosert Eakt,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

The District Attorney of Queens County in the City of

New York on behalf of the People of the State of New York

petitions for a writ of certiorari to review the judgment of

the Court of Appeals of the State of New York in this case.

Opinions Below

There is no written opinion by the Supreme Court of

the State of New York, Queens County. The order of the

Supreme Court of the State of New York is set forth in

2

Appendix A. The majority and dissenting opinions of the

Appellate Division of the Supreme Court of the State of

New York, Second Judicial Department, are reported at

50 A.D.2d 289, 377 N.Y.S.2d 649, and are set forth in

Appendix B. The decision of the Court of Appeals of the

State of New York is reported at 40 N.Y. 2d 941 and is set

forth in Appendix C.

Jurisdiction

The judgment of the Court of Appeals of the State of

New York was entered on November 18, 1976, and is set

forth in Appendix D. The jurisdiction of this Court is in-

voked pursuant to Title 28 of the United States Code,

Section 1257 (3).

Questions Presented

1, Whether an investigatory seizure of a person by a

police officer who draws his gun before there is probable

cause to arrest constitutes an illegal arrest in violation of

the Fourth Amendment made applicable to the States by

the Fourteenth Amendment?

2. Whether a gun voluntarily displayed by a person

who is seized by a police officer must be excluded from

evidence if the seizure of that person violated the Fourth

Amendment made applicable to the States by the Four-

teenth Amendment?

Constitutional Provisions Involved

1, The Fourth Amendment to the United States Consti-

tution which provides:

The right of the People to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the person or things

to be seized.

2. The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution which provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Statement of the Case

Robert Earl was convicted on October 9, 1974, in the

Supreme Court of the State of New York, Queens County,

of the crime of possession of weapons and dangerous in-

struments and appliances as a misdemeanor upon a plea of

guilty entered after his motion to suppress physical evi-

dence was denied (see Appendix B, p. A2). The motion

to suppress evidence was made pursuant to New York

Criminal Procedure Law §710.30(1) which provides for a

motion by a defendant to suppress ‘‘tangible property ob-

tained by means of an unlawful search and seizure under

4

circumstances precluding admissibility thereof in a criminal

action against such defendant.’’ This motion, which was

denied following a hearing on September 9, 1974 (Appendix

A), raised the Federal questions herein sought to be re-

viewed in the court of first instance.

On December 29, 1975, the Appellate Division of the

State of New York, Second Judicial Department, with one

justice dissenting, affirmed the judgment of the lower court,

including the decision denying the motion to suppress

physical evidence which raised the Federal questions herein

sought to be reviewed (Appendix B).'

The Appellate Division, based on the testimony at the

hearing held on the defendant’s motion to suppress physical

evidence, found that on September 13, 1970, shortly after

midnight, Jesse Carter, an off-duty New York City Hous-

ing Authority Police Officer, while driving home from the

movies in his private car with a female companion, saw

two men crouched behind a car in a partly deserted un-

fenced parking lot in the South Jamaica section of Queens

County in New York City. The officer pulled into the park-

ing lot, turned off the lights, parked his car two ear lengths

away from the two men and observed them for a “‘brief

moment.’’ The men were crouched behind a car adjacent

to the officer’s car and he saw that one of them, Robert

Earl, was holding an object in his upraised hands while

the other man was putting something from his hand into his

rear pants pocket, although he could not identify the ob-

1. New York Criminal Procedure Law §710.70(2) provides that :

“An order finally denying a motion to suppress evidence ma

be reviewed upon appeal from an ensuing judgment of poder 4

a ee age

a guilty.

5

jects. Officer Carter turned the headlights of his car back

on and drove around toward the two men. He stopped his

car, got out facing the men with his pistol in his hand and

said, ‘‘Freeze—police officer.’”” Earl came up from the

crouched position and dropped the object he had been

holding. The officer told the men to put their hands up on

the car and retrieved the cbject, a loaded handgun. He then

informed them they were under arrest and searched them.

Robert Earl had six more bullets in his pocket and the

other man had a second handgun (Appendix B, pp. A3,

A10-11).?

In an opinion by Mr. Justice M. Henry Martuscello, the

majority at the Appellate Division stated that while the

conduct observed by the officer was admittedly equivocal,

and hence capable of innocent interpretation, it was pre-

cisely the sort of suspicious street conduct which should be

investigated, and found that the ‘‘officer, by reason of the

hour, the location, and the nature of the activity observed

came to harbor a ‘founded suspicion’ that criminal activity

was afoot, and acted reasonably to test that suspicion.’’

The majority concluded ‘‘that under the circumstances of

this case, the ‘seizure’ was reasonable within the meaning

of the Fourth Amendment”’ and that by drawing his weapon

because of the element of danger, the officer did not convert

an otherwise lawful detention into an illegal arrest for

they did not ‘‘believe that the Fourth Amendment’s pro-

scription against unreasonable searches and seizures re-

quire[d] officers in Carter’s stead to risk their lives need-

lessly in the performance of their duty’’ (Appendix B, pp.

A3-9).

2. The Appellate Division of the State of New York may review

OMeKins of law and issues of fact. N.Y. Crim. Proc. Law §470.15

McKinney 1971).

6

The dissenting justice, Hon. J. Irwin Shapiro, was of

the view that Robert Earl was under arrest at the moment

the officer pointed his gun at him and ordered him to

freeze, ‘‘a moment when the police officer as yet had no

probable cause to believe a crime was being committed.”’

He found that ‘‘Patrolman Carter had neither probable

cause nor a founded suspicion of criminal activity afoot

when he seized the defendant’’ and stated that ‘‘constitu-

tionally protected Fourth Amendment rights cannot be

dispensed with solely because the results of an unreason-

able search and seizure, made without probable cause,

demonstrate that the person whose constitutional rights

have been infringed was, in fact, armed with illegal wea-

pons.’’ Justice Shapiro then concluded that his duty ‘‘to

support and defend the Constitution’? made it necessary

for him to vote to suppress the product of the seizure and

search (Appendix F, pp. A9-17).

The New York Court of Appeals, in a decision dated

November 18, 1976, with two justices dissenting, reversed

the order of the Appellate Division and dismissed the in-

dictment on the dissenting opinion at the Appellate Divi-

sion. The two dissenting justices voted to affirm on the

majority opinion at the Appellate Division (Appendix C).*

Reasons for Granting the Writ

This case presents two important and related questions

concerning the right of an officer to make an investigative

seizure of a person with gun drawn without probable cause

3. The jurisdiction of the New York Court of Appeals in non-

capital cases is limited to questions of law. N.Y. Const., Art. 6, §3

(McKinney 1969).

7

to arrest. The first question deals with the constitutionality

of such a seizure. The second is whether a gun which was

displayed by the person thus seized must be excluded from

evidence if the seizure was unreasonable. The decision of

the New York Court of Appeals should be reviewed by this

Court because it determines these important questions of

Federal constitutional law in a manner which probably con-

flicts with the applicable decisions of this Court.

1. The New York Court of Appeals in our view errone-

ously adopted the dissenting opinion of the Appellate Divi-

sion and held, as a matter of law, that the momentary

seizure of Robert Earl by the police officer with gun drawn

before there was probable cause to arrest violated consti-

tutionally protected Fourth Amendment rights.

This Court has stated that police conduct predicated

upon on-the-spot observations is not subject to the Warrant

Clause of the Fourth Amendment and does not require

probable cause to arrest. Instead, such conduct ‘‘must be

tested by the Fourth Amendment’s general proscription

against unreasonable searches and seizures.’’ In assessing

the reasonableness of such conduct, ‘‘it is necessary ‘first to

focus upon the governmental interest which allegedly justi-

fies official intrusion upon the constitutionally protected

interests of the private citizen,’ for there is ‘no ready test

for determining reasonableness other than by balancing the

need to search [or seize] against the invasion which the

search [or seizure] entails.’ Camara v. Municipal Court,

387 U.S. 523, 534-535, 536-537, 18 L.Ed.2d 930, 938-940, 87

S.Ct. 1727 (1967).’’ Terry v. Ohio, 392 U.S. 1, 20-22 (1968).

Considering the governmental interest in crime prevention

and detection, this Court has recognized that a police officer

8

may, in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating

possible criminal behavior though there is no probable

cause to make an arrest. See Terry v. Ohio, supra, 392 U.S.

at 22; Adams v. Williams, 407 U.S. 143, 145 (1972) ; United

States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975).

The dissenting opinion adopted by the New York Court

of Appeals failed to consider the governmental interest in

public safety and crime prevention in evaluating the rea-

sonableness of the officer’s intrusion to investigate the two

men he saw crouched behind a car in a public parking lot,

holding objects which might be weapons. It ignored

the public interest in having police investigate persons

lurking behind cars in parking lots without apparent

legitimate reason and the fact that if the officer in this

case had failed to investigate, the safety of others enter-

ing the parking lot would have been in jeopardy. It

also failed to consider the reasonable inferences which the

officer was entitled to draw from his observations in light

of his experience. Equating a founded suspicion of criminal

activity with probable cause to arrest, that opinion relied

upon standards of probable cause in determining the rea-

sonableness of the officer’s actions, and while acknowledg-

ing that ‘‘the arresting officer’s life may well have been

at stake, especially if he had failed to take the precaution

of having his gun in hand when he ordered the defendant

to ‘freeze,’ ’’ concluded that the seizure and search of the

respondent, Robert Fiarl, witbout probable cause, violated

his constitutionally protected Fourth Amendment rights

(Appendix C, p. Al4).

This Court has not specifically decided whether it is

reasonable for a police officer to draw his gun and seize

9

a person without probable cause to arrest. However, it

has acknowledged that in the course of police investigation,

‘a perfectly reasonable apprehension of danger may arise

long before the officer is possessed of adequate information

to justify taking a person into custody for the purpose of

prosecuting him for a crime’’ and that, in such instances

‘reliance on cases which have worked out standards of

reasonableness with regard to ‘seizures’ constituting ar-

rests and search incident thereto is * * * misplaced.’’ It

has concluded that ‘‘there must be a narrowly drawn

authority to permit a reasonable search for weapons for

the protection of the police officer, where he has reason to

believe that he is dealing with an armed and dangerous

individual, regardless of whether he has probable cause to

arrest the individual for a crime. The officer need not be

absolutely certain that the individual is armed; the issue

is whether a reasonably prudent man in the circumstances

would be warranteu in the belief that his safety or that of

others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91,

13 L. Ed.2d 142, 145, 85 S.Ct. 223 (1964); Brinegar v.

United States, 338 U.S. 160, 174-176, 93 L. Ed. 1879, 1889-

1891, 69 S.Ct. 1302 (1949); Stacey v. Emery, 97 U.S. 642,

645, 24 L. Ed. 1035, 1036 (1878).’’ Terry v. Ohio, supra, 392

U.S. at 6-27. The officer in this case was warranted in the

circumstances in believing that his safety and that of others

was in danger and the investigative seizure with gun drawn

did not violate Fourth Amendment rights, notwithstanding

the absence of probable cause.

By requiring probable cause to arrest before a police

officer can draw his gun and seize a person suspected of

criminal activity, the decision adopted by the New York

Court of Appeals imposed the restrictions of the Warrant

10

Clause of the Fourth Amendment upon police conduct

which this Court has held to be subject only to the Fourth

Amendment’s general proscription against unreasonable

searches and seizures. The ruling of the New York Court of

Appeals is subject to review by this Court for it imposed

greater restrictions on police activity by reason of the

Fourth Amendment than those which this Court has held

to be necessary and thereby deprived the prosecution of

otherwise relevant evidence. See Oregon v. Hass, 420 U.S.

714 (1975). It should be reviewed for it conflicts with the

public interest by unreasonably limiting and endangering

police officers in the exercise of their duty to protect the

public and prevent crime.

2. If the seizure of Robert Earl by the officer violated

the Fourth Amendment, the New York Court of Appeals

nevertheless improperly excluded from evidence the gun

displayed by Robert Earl before he was seized by the

officer.

In the area of the applicability of the Fourth Amend-

ment’s protection, it has been acknowledged that ‘‘each

case must be judged on its own particular facts.’’ Lewis v.

United States, 385 U.S. 206, 212 (1966). The gun which

was excluded from evidence as seized in violation of the

Fourth Amendment had been voluntarily displayed by

Robert Earl before he was seized by the officer. One of the

factors which impelled the officer, after entering the park-

ing lot, to make an investigatory seizure of Earl and his

companion, was the object in Earl’s upraised hand; al-

though the officer could not then definitely identify it as a

gun. Earl dropped this object, the gun, during the officer’s

investigative seizure and it was retrieved by the officer.

11

‘‘What the Fourth Amendment protects is the security a

man relies upon when he places himself or his property

within a constitutionally protected area * * *’’ Hoffa v.

United States, 385 U.S. 293, 301 (1966). The illegally

possessed gun was knowingly exposed by Earl in an area

accessible to the public and therefore should not be a subject

of Fourth Amendment protection. See Katze v. United

States, 389 U.S. 347, 351-352 (1967). The investigative

seizure merely permitted the officer to safely enter an area

of the public parking lot where he could clearly see the

object displayed by Earl and identify it as a gun. Karl’s

own action and not the seizure revealed the gun. Cf.,

Wong Sun v. United States, 371 U.S. 471 (1963). The

ruling of the New York Court of Appeals which excluded

from evidence the gun abandoned by Robert Earl dur-

ing the investigative seizure by Officer Carter, as seized in

violation of the Fourth Amendment, should be reviewed by

this Court, for it deprived the State of otherwise relevant

evidence as the result of an improper application of the

protection afforded by the Fourth Amendment. See Cal-

ifornia v. Green, 399 U.S. 149 (1970).

Conclusion

For all of the foregoing reasons, this petition

for a writ of certiorari should be granted.

Respectfully submitted,

Joun J. Santucci

District Attorney

Queens County

Attorney for Petitioner

AnnaMakieE Po.icritI

Assistant District Attorney

February, 1977

Al

APPENDIX A

Order of the Supreme Court of the State of New York

At a Criminal Term, Part V, of the Supreme

Court, held in and for the County of Queens,

at the Courthouse, 125-01 Queens Boulevard,

Kew Gardens, New York, on the 9 day of

September 1974.

Present:

Hon. Francis X. Samira, Justice.

Ind. No. 1541/74

Oral Motion to suppress evidence.

Hearing September 9, 1974.

eee

THe PEOPLE OF THE Srare or New York

against

Rosert Ear.,

Defendant.

EG

William J. Gallagher, Esq.

For the Motion

Nicholas Ferraro, D. A.

Opposed

Upon the foregoing papers, and for the reasons stated

on the record, after a hearing, the motion to suppress

evidence is denied.

GRANTED:

Date: September 9, 1974

/s/ Joun J. DuRantTE

/s/ Fraxcis X. Smitrn

J.8.C.

A2

APPENDIX B

Majority and Dissenting Opinions of the

Appellate Division of the State of New York

SUPREME COURT : APPELLATE DIVISION

Szconp JupiciaL DEPARTMENT

December 29, 1975

Rasin, Acting P.J., Hopxins, Martuscet1o,

Curist and SHapro, JJ.

Oo

Tue PEop.e ofr THE StaTE oF NEw York,

Respondent,

against

Rosert Eak1,

Appellant.

Appzat from a judgment of the Supreme Court, Queens

County (Francis X. Smirn, J.), rendered October 9, 1974,

convicting defendant of possession of weapons and danger-

ous instruments and appliances as a misdemeanor, upon

his plea of guilty, and imposing sentence. The appeal also

brings on for review a decision of the same court, rendered

September 9, 1974, which denied defendant’s motion to

suppress physical evidence.

William E. Hellerstein and William J. Gallagher, New

York, N. Y. (Elliot Schnapp of counsel), for

appellant.

Nicholas Ferraro, District Attorney, Kew Gardens,

N. Y. (Annamarie Policriti of counsel), for re-

spondent.

A3

Appendia B

MaRTUSCELLO, J. Shortly after midnight on the

morning of September 13, 1970, Patrolman Jesse Carter,

an off-duty New York City Housing Authority policeman,

was driving home from the movies with a female com-

panion, when he observed the defendant and another

‘‘crouched’’ behind a parked automobile in a partially

deserted parking lot in the South Jamaica section of

Queens. Although his vision was partly obscured by the

parked car, Carter stated that he could see the ‘‘whole

upper part’’ of the defendant’s body, and that the defend-

ant was holding an object in his hands. He further stated

that the defendant’s companion was holding an object in

his hands as well, which the latter thereafter placed in his

rear pants pocket. The officer admitted candidly that he did

not know what either object was at the time.

Continuing around the corner, Carter entered the lot,

turned off his lights, and parked in a parking space two

car-lengths away. He then paused for a ‘‘brief moment’’,

turned on his headlights, and drove towards the two men.

Halting the car, he exited briskly, identified himself as a

police officer, and ordered the defendant to ‘‘freeze’’. The

foregoing was accomplished with his pistol already drawn.

As the defendant rose up from his crouched position,

Carter observed him drop something to the ground, which

Carter later retrieved and found to be a loaded handgun.

The defendant was thereafter informed that he was under

arrest and was searched. Six additional bullets were found

in that search ; a search of the companion revealed a second

handgun.

A motion to suppress the physical evidence was denied

by the Criminal Term, whereupon the defendant elected to

A4

Appendia B

plead guilty. He now seeks a reversal of his conviction,

alleging, as the sole ground therefor, that the evidence was

unlawfully obtained by reason of an illegal seizure. This

contention cannot be sustained.

In light of the recent holding of our Court of Appeals

in People v. Cantor (36 NY2d 106), it can no longer be

seriously contended that the defendant’s gunpoint detention

was anything less than a ‘‘seizure’’ within the meaning of

the Fourth Amendment, as he was unquestionably, from

that moment forward, significantly deprived of his freedom

of movement as a direct result of official police action

(People v. Cantor, supra, p. 111; see, also, Terry v. Ohio,

392 US1). This being the case, it follows ex necessitate

that the legality of the seizure, and perforce the admissi-

bility of the evidence derived therefrom, must depend

ultimately upon the presence of probable cause for the

detention, or, in the alternative, ‘‘whether it fits within the

narrow exception carved out by the Supreme Court in

Terry v. Ohio (392 US 1) and Adams v. Williams (407 US

143) where forcible street encounters were found to have

been properly initiated by the police and reasonable under

the circumstances’’ (People v. Cantor, supra, p. 110). Here,

as in People v. Cantor, reliance upon probable cause has

been disclaimed; hence the question presented is whether,

under the facts of this case, the conduct of the police was

otherwise ‘‘justified at its inception and whether or not it

was reasonably related in scope to the circumstances which

rendered its initiation permissible (Terry v. Ohio, supra,

at p. 19; Cupp v. Murphy, 412 US 291; People v. Kuhn, 33

NY2d 203)’’ (People v. Cantor, supra, p. 111). This, in

A5

Appendia B

turn, requires us to weigh carefully ‘‘the government’s

interest in the detection and apprehension of criminals

against the encroachment involved with respect to an in-

dividual’s right to privacy and personal security (Terry v.

Ohio, supra; Camara v. Municipal Ct., 387 US 523)’’ (Peo-

ple v. Cantor, supra, p. 111; see, also, United States v.

Ward, 488 F2d 162, 168). We now embark upon this task,

eschewing, as per the cautionary language of the Court of

Appeals, the semantic trap of attempting to label the par-

ticular police action.

‘‘The proscription against unreasonable searches and

seizures is designed to prevent random, unjustified in-

terference with private citizens whether it is denomi-

nated an arrest, investigatory detention, or field inter-

rogation (Davis v. Mississippi, 394 US 721; Cupp v.

Murphy, 412 US 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). * * * Whenever a street encounter

amounts to a seizure it must pass constitutional mus-

ter’’ (People v. Cantor, supra, p. 112).

Discounting the existence of probable cause, the au-

thority of the police in New York to intercept persons on

the public street is derived from two independent sources:

the so-called stop and frisk law (CPL 140.50) and the

common-law right of inquiry (see People v. Rivera, 14

NY2d 441, cert. den. 379 US 978). Pursuant to statute, in

order for a person to be lawfully detained in a public place,

it is necessary that the detaining officer harbor a ‘‘reason-

able suspicion’’ that such person is committing, has com-

mitted, or is about to commit a crime, and, when used in

A6

Appendiz B

this context, ‘‘reasonable suspicion’’ has been defined as

that quantum of knowledge which, under the circumstances

then present, would prompt an ordinarily prudent and cau-

tious man to believe that criminal activity is at hand

(People v. Cantor, supra, pp. 112-113). Vague or unparticu-

larized hunches will rot suffice for this purpose; nor will

good will on the part of the police (see Terry v. Ohio,

supra). What is required, according to recent decisions,

are ‘‘specific and articulable facts which, along with any

logical deductions [therefrom], reasonably [prompt the

given] * * * intrusion’’ (People v. Cantor, supra, p. 113).

By way of contrast, the common-law right of inquiry

is not so strictly proscribed; it operates to permit lawful

detentive inquiry upon grounds less compelling than ‘‘rea-

sonable suspicion’’ (see People v. Rosemond, 26 NY2d 101,

104). As was stated by the Court of Appeals in People v.

Rivera (14 NY2d 441, 444-445, cert. den. 379 US 978,

supra):

‘‘The business of the police is to prevent crime if they

can. Prompt inquiry into suspicious or unusual street

action is an indispensable police power in the orderly

government of large urban communities. It is a prime

function of city police to be alert to things going wrong

in the streets; if they were to be denied the right of

such summary inquiry, a normal power and a necessary

duty would be closed off’’ (see, also, People v. Peters,

18 NY2d 238, 242-243, affd. sub. nom. Sibron v. New

York, 392 US 40).

Nevertheless, it is still clear that such authority cannot

operate as a license to violate the Constitution ; the common-

—

AT

Appendia B

law right of inquiry does not include the right to unlawfully

seize. To quote agaiu from People v. Cantor (p. 114):

‘The minimum requirement for a lawful detentive stop

is a founded suspicion that criminal activity is afoot

(e.g., United States v. Ward, 488 F2d 162; United

States v. Bugarin-Casas, 484 F2d 853, cert. den. 414

US 1136). Our court has consistently limited this

power when it has been exercised solely on the basis

of vague suspicion or as a means of harassment (see,

e.g., People v. Stokes, 32 NY2d 202; People v. Schan-

barger, 24 NY2d 288; Sibron v. New York, 392 US 40)”’

(accord, People v. Buffolino, 48 AD2d 904).

Applying the foregoing considerations to the case at

bar, we are of the opinion that Patrolman Carter’s actions

were, at the minimum, justified under the common-law right

of inquiry; he was clearly possessed of such information as

would warrant a ‘‘founded suspicion’’ that criminal ac-

tivity was ‘‘afoot’’. Thus, Carter was aware, by reason of

his observation, of the presence of two unidentified men

‘‘crouched’’ behind a parked car in a practically-deserted

parking lot in the South Jamaica section of Queens, and of

the presence of ‘‘objects’’ in their hands. The hour was

late, approximately 12:25 A.M. Although admittedly equiv-

ocal, and hence capable of innocent interpretation, the fore-

going is precisely the sort of suspicious street conduct

which should be investigated. In the absence of such in-

vestigation the cause of crime prevention may needlessly

suffer (see People v. Rivera, supra). Plainly, we are not

here dealing with that type of ‘‘random’’ or ‘‘ unjustified’’

interference which was condemned in People v. Cantor

(supra); nor are we dealing with a case of ‘‘vague suspi-

A8

Appendiz B

cion’’ on the part of the police. What we have here is a

situation wherein an officer, by reason of the hour, the

location and the nature of the activity observed, came to

harbor a ‘‘founded suspicion’’ that criminal activity was

afoot, and acted reasonably to test that suspicion. While

it may have been otherwise, given other details, the fact

remains that under the circumstances of this case, the

‘*seizure’’ was reasonable within the meaning of the Fourth

Amendment; the government’s interest in the prompt in-

vestigation of this caliber of unusual street conduct (and

the consequent potential for the prevention of crime) must

be held to take precedence over the undoubted (and initially

temporary) encroachment of individual rights of privacy

and personal security which necessarily results (see People

v. Cantor, supra, p. 111).

We cannot, as the dissent has attempted to do, demean

the quality of Carter’s suspicion; nor do we fault his deci-

sion in drawing his gun. The facts observed were not, as

has been suggested, equally consistent with changing a flat

tire. The record fails to reveal those normal incidents of

everyday life which we have come to associate with chang-

ing a tire (i.e., the raised or lopsided car, the bumper-jack,

and the upraised trunk lid). Moreover, we would be loathe

to hold that, in the absence of specific knowledge as to what

objects the defendant and his companion were holding in

their hands, a ‘‘founded suspicion’’ that criminal activity

was ‘‘afoot’’ could not have arisen (see United States v.

Bugarin-Casas, 484 F'2d 853), or that by drawing his wea-

pon, the officer converted an otherwise lawful detcation into

an illegal arrest (see People v. Wiggins [decided here-

with]). The element of danger in such circumstances is

A9

Appendia B

well-documented by the cases (see Adams v. Williams, 407

US 143, 146; Terry v. Ohio, 392 US 1, 24, supra; People v.

Rivera, 14 NY2d 441, 446, cert. den. 379 US 978, supra; ef.

CPL 140.50) and constitutes a factor which we can ill ig-

nore. Thus, we are impelled to state clearly and for the

record that the right of inquiry must be accompanied by a

coordinate right to act reasonably to protect the officer and

the public at large, and that, under the facts of this case,

Carter’s response to the situation was both reasonable and

necessary to his personal well-being. Clearly, a lesser re-

sponse by him may have rendered his own life forfeit. We

do not believe that the Fourth Amendment’s proscription

against unreasonable searches and seizures requires officers

in Carter’s stead to risk their lives needlessly in the per-

formance of their duty. Constitutionalism, at least in this

context, does not require the sacrifice of natural rights.

Rasin, Acting P.J., Hopxins and Curist, JJ., concur.

Suapmo, J. (dissenting). After the defendant’s

suppression motion was denied, he pled guilty to the crime

of possession of weapons and dangerous instruments and

appliances as a misdemeanor. This appeal involves an

aspect of the agonizing problem which often troubles the

courts, to wit, whether to allow a defendant whose guilt is

clear to go unwhipped of justice because the arresting

officer has breached his constitutionally protected rights

against unreasonable searches and seizures.

A10

Appendia B

Tue Facts

The defendant was arrested soon after midnight on

September 13, 1970 by Jesse Carter, an off-duty New York

City Housing Authority patrolman, who was in his private

automobile and on his way home from the movies with a

woman companion. As he was driving by an unfenced

parking lot in Queens, he saw the defendant and another

man, some 15 or 20 feet away, crouched behind an auto-

mobile parked in the partly deserted lot. Other cars were

also parked in the lot. Although the car behind which the

defendant and his companion were crouched was between

them and Patrolman Carter, the officer could see the whole

upper part of the defendant’s body. Patrolman Carter

testified that the defendant ‘‘had his hands up’’ and that he

saw an object in his hands but could not see what it was.

He also testified that he also saw the defendant’s companion

place an object into his rear pants pocket, but he did not

know what that object was. Patrolman Carter then pulled

his car into the parking lot, turned off his lights, and

parked it almost two car-lengths away from the defendant

and his companion. He then turned on his car headlights,

drove his car right up to the defendant, stopped his car,

and got out, facing the defendant. He had his pistol in his

hand and said ‘‘freeze, police officer’’, and told the de-

fendant to place his hands on his, Carter’s, car. He testified

that when he did this he still did not know what the object

was that he had seen in the defendant’s hand. He then

testified that he thereafter saw the defendant drop the

object in his hand to the ground. When he retrieved it,

All

Appendix B

Patrolman Carter found it to be a loaded gun. He then

searched the defendant and found six additional bullets in

his pocket.

Tue Decision Unper Review

The Criminal Term, in denying the defendant s sup-

pression motion, ruled that Patrolman Carter was properly

investigating the suspicious activities of the defendant and

his companion when he approached them and identified

himself to them as a police officer. It went on to say that,

as he did so, the defendant dropped an object to the ground

at his feet and that when Patrolman Carter picked it up he

found it to be a loaded gun, as a result of which he arrested

the defendant. The Criminal Term therefore found that the

arrest of the defendant was proper and that, consequently,

the ensuing search, which disclosed six more rounds of

ammunition in the defendant’s pocket, was also proper.

Tue Law

If the facts were as the Criminal Term stated them, that

Patrolman Carter arrested the defendant only after he

found that the object he had seen in the defendant’s hand

was, in fact, a gun, the correctness of its denial of the

motion to suppress would be beyond question. However,

Patrolman Carter’s testimony was that when he turned on

his headlights and limned the defendant in them and got

out of his car, his gun in hand, and told the defendant,

‘*freeze, police officer’’, he did so without knowledge that

either the defendant or his companion were armed and

that his only ground for thus proceeding was that he had

Al2

Ye Appendia B

seen them crouching behind a parked car, the defendant

with an unknown object in his hand. Clearly, therefore, at

the moment that Patrolman Carter pointed his gun at the

defendant and ordered him to ‘‘freeze’’, the latter was

being ‘‘physically or constructively detained by virtue of a

significant interruption of his liberty of movement as a

result of police action’’ and he had therefore been ‘‘seized

within the meaning of the Fourth Amendment’’ (People v.

Cantor, 36 NY2d 106, 111). As the Court of Appeals there

said (p. 111):

‘‘This is true whether a person submits to the au-

thority of the badge or whether he succumbs to force.’’

Clearly, because of the police officer’s gun and badge, the

defendant was then ‘‘deprived of his freedom of move-

ment’’ (id., p. 111) and was under arrest at that very

moment, a moment when the police officer as yet had no

probable cause to believe that a crime was being committed.

In People v. Cantor, the court said (pp. 112-113):

‘‘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 sufficient to induce an ordi-

narily prudent and cautious man under the circum-

stances to believe criminal activity is at hand. (Com-

pare Schwartz, Stop and Frisk: A Case Study in

Judicial Control of the Police, 58 J. Crim. L.C. & P.S.

433, 445 with La Fave, ‘Street Encounters’ and the

Constitution: Terry, Sibron, Peters and Beyond, 67

Mich. L. Rev. 40, 70.) To justify such an intrusion,

the police officer must indicate specific and articulable

at Oe en ta

Ai3

Appendix B

facts which, along with any logical deductions, reason-

ably prompted that intrusion. Vague or unparticula-

rized hunches will not suffice (Terry v. Ohio, 392 US 1,

supra; Wong Sun v. United States, 371 US 471, 479).

Nor will good faith on the part of the police be enough

to validate an illegal interference with an individual

(e.g., Terry v. Ohio, supra; Henry v. United States, 361

US 98, supra; Hill v. California, 401 US 797; Smith v.

County of Nassau, 34 NY2d 18).’’

Here, ‘‘the record is barren of any objective evidence

evincing criminal activity’’ (People v. Cantor, supra, p.

113), for, at the time Carter arrested the defendant at

gunpoint, he had no knowledge that the defendant’s be-

havior was ‘‘dangerous to the safety of the police or others

(Warden v. Hayden, 387 US 294)’’ (People v. Cantor,

supra, p. 113). The officer frankly conceded that at the

time when, gun in hand, he ordered the defendant to

‘*freeze’’, he had no notion what the object in the de-

fendant’s hand was; nor did he know that it was a gun

until he saw it at the defendant’s feet.

In Cantor the court also said (pp. 113-114) :

‘‘Turning to the common-law authority of the police

to make investigative inquiries, we note that this au-

thority does not give the police a license to violate the

Constitution (cf. People v. Rivera, 14 NY2d 441, 448

[Fuld, Cr. J., dissenting]). The common-law power to

inquire does not include the right to unlawfully seize.

The minimum requirement for a lawful detentive stop

is a founded suspicion that criminal activity is afoot

(e.g., United States v. Ward, 488 F2d 162; United

States v. Bugarin-Casas, 484 F2d 853, cert. den. 414 US

1136). Our court has consistently limited this power

Al4

Appendia B

when it has been exercised solely on the basis of vague

suspicion or as a means of harassment (see, e.g.,

People v. Stokes, 32 NY2d 202; People v. Schanbarger,

24 NY2d 288; Sibron v. New York, 392 US 40).’’

Here, Patrolman Carter’s testimony was that he saw the

defendant and another man crouching behind a car and

that the defendant had an object in his hand. Beyond that

fact, Patrolman Carter had no ground for suspicion. The

object might have been a tire iron for fixing a flat tire. By

itself it was no basis for ‘‘a founded suspicion that criminal

activity’’ was ‘‘afoot’’. The defendant and his companion

took no evasive action when Patrolman Carter’s car en-

tered the lot and parked near them. In brief, Patrolman

Carter had neither probable cause nor a founded suspicion

of criminal activity afoot when he seized the defendant.

Therefore, the motion to suppress should have been

granted. I reach this conclusion with a great deal of re-

luctance since I am not unaware that cases such as the

instant one raise serious problems for the courts, and even

more serious ones for the police officers involved. Here,

subsequent events demonstrated beyond the slightest doubt

the correctness of the arresting officer’s course of conduct.

Had he failed to have his gun drawn and to order the de-

fendant to ‘‘freeze’’, he might well have been a victim of

the guns of his armed arrestees. However, constitutionally

protected Fourth Amendment rights cannot be dispensed

with solely because the results of an unreasonable search

and seizure, made without probable cause, demonstrate

that the person whose constitutional rights have been in-

fringed was in fact armed with illegal weapons. The fact

Al5

Appendiz B

that the subject of the improper search and seizure, the

defendant, was in fact armed with a loaded weapon, and

had extra ammunition for the weapon in his pocket, cannot

serve to validate either his arrest without probable cause

or the subsequent search of his person. While it goes

against the grain to say to the arresting officer, whose life

may well have been at stake, especially if he had failed to

take the precaution of having his gun in hand when he

ordered the defendant to freeze, that the fact that he acted

on bald suspicion without sufficient prior evidence of the

defendant’s wrongdoing to constitute probable cause makes

it necessary to suppress the product of the seizure and

search, I must so vote. To do otherwise would be to fail

to carry out my duty to support and defend the Constitu-

tion.

I am cognizant of the fact that both the highest court

of our State and the Supreme Court of the United States

have applied to police officers a somewhat different standard

than that applied to ordinary citizens in determining what

constitutes probable cause to sustain an arrest. In Brinegar

v. United States (338 US 160, 175-176), Justice RutTLepce

said:

‘‘Since Marshall’s time, * * * it [probable cause] has

come to mean more than bare suspicion: Probable cause

exists where ‘the facts and circumstances within their

[the officers’] knowledge and of which they had rea-

sonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in

the belief that’ an offense has been or is being com-

mitted. Carroll v. United States, 267 US 132, 162.

A16

Appendiz B

‘“‘These long-prevailing standards seek to safeguard

citizens from rash and unreasonable interferences with

privacy and from unfounded charges of crime. They

also seek to give fair leeway for enforcing the law in

the community’s protection. Because many situations

which confront officers in the course of executing their

duties are more or less ambiguous, room must be al-

lowed for some mistakes on their part. But the mis-

takes must be those of reasonable men, acting on facts

leading sensibly to their conclusions of probability.

The rule of probable cause is a practical nontechnical

conception affording the best compromise that has been

found for accommodating these often opposing inter-

ests. Requiring more would unduly hamper law en-

forcement. To allow less would be to leave law-abiding

citizens at the mercy of the officers’ whim or caprice.’’

In People v. Valentine (17 NY2d 128), the court declared

that the standard of probable cause, as it applies to police,

is that which would be probable cause to a reasonable,

cautious, prudent police officer.

Applying that statement here, I find that the arresting

officer, based upon his own testimony, did not have, at any

time prior to his arrest of the defendant, reasonable ground

to believe that the defendant or his companion was armed

or that they were otherwise engaged in any criminal ac-

tivity. For all he knew, they may have been engaging in

perfectly proper activity. He had no grounds for believing

‘‘criminal activity’’ was ‘‘at hand’’ (People v. Cantor, 36

NY2d 106, 113, supra). He did not ‘‘indicate specific and

articulable facts which, along with any logical deductions,

reasonably prompted”’ his intrusion on the defendant in a

A17

Appendia B

public place (id., p. 113). The fact that his hunch as to the

defendant turned out to be right cannot serve to establish

the necessary probable cause, although it did turn out to

have secured his safety (see Sibron v. New York, 392 US 40,

63; Henry v. United States, 361 US 98, 103; Johnson v.

United States, 333 US 10, 16-17). The law has not yet

reached the stage where the proof of the pudding is in the

eating.

As a court of law, we are bound to safeguard constitu-

tionally protected rights against invasion when a police

officer proceeds on no more than a ‘‘vague suspicion’’, even

though the object of that invasion is a most despicable

character. Our claim to uniqueness among the nations of

the world is our deep commitment to constitutionalism

which, in a case such as this, requires a recognition of and

respect for individual rights and liberties. We may not

traduce our principles because their observance results, in

an individual case, in freeing a guilty defendant (cf. Peo-

ple v. Sanchez, —— NY2d — — [dec. Nov. 25, 1975]).

A18

APPENDIX C

Decision of the Court of Appeals of the

State of New York

Nov 18 1976

No. 488

or - O

The People &.,

Respondent,

vs.

Robert Earl,

Appellant.

Order reversed and the indictment dismissed on the

dissenting opinion by Mr. Justice J. Irwin Shapiro at the

Appellate Division (50 A D 2d 289, 294-299).

All concur except Jasen and Cooke, JJ., who dissent

and vote to affirm on the opinion by Mr. Justice M. Henry

Martuscello at the Appellate Division (50 A D 2d 289,

290-294).

ee en

A19

APPENDIX D

Judgment of the Court of Appeals of the

State of New York

COURT OF APPEALS

State or New York

The Hon. Charles D. Breitel, Chief Judge, Presiding

No. 488

rie

The People &c.,

Respondent,

vs.

Robert Earl,

Appellant.

The appellant in the above entitled appeal appeared by

William E. Hellerstein and William J. Gallagher; the

respondent appeared by Nicholas Fe raro, District Attor-

ney, Queens County.

The Court, after due deliberation, orders and adjudges

that the order is reversed and the indictment dismissed on

the dissenting opinion by Mr. Justice J. Irwin Shapiro at

the Appellate Division (50 A D 2d 289, 294-299). All concur

except Jasen and Cooke, JJ., who dissent and vote to affirm

ee aaa SS eee! Oe ee

A20

Appendia D

on the opinion by Mr. Justice M. Henry Martuscello at the

Appellate Division (50 A D 2d 289, 290-294).

The Court further orders that the papers required to

be filed and this record of the proceedings in this Court be

remitted to the Supreme Court, there to be proceeded upon

according to law.

I certify that the preceding contains a correct record of

the proceedings in this appeal in the Court of Appeals and

that the papers required to be filed are attached.

/8/ Josep W. BE.Lacosa

Joseph W. Bellacosa, Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, November 18, 1976.