# Petition — State of New York v. Robert Earl

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 943

## Text

‘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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1243%3A1. Public record. Not legal advice.