Petition — New York v. Howard

& (0) om 5 4 8 Pe Supreme Court, U.S.

No. <puenehn ae F } L E D

ICT 1 1980

IN THE MICHAEL RODAK, Jn. CLERK

Suprene Court of the United States —

October Term, 1980

STATE OF NEW YORK,

Petitioner,

a,

ARCHIE WILLIAM HOWARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

Mario Merona

District Attorney

Bronx County

Counsel for Petitioner

215 East 161 Street

Bronx, New York 10451

(212) 590-2060

Auan D, Mangus

Assistant District Attorney

Of Counsel

Questions Presented

1. Whether a police officer who has sufficient basis to

make inquiry of, but not arrest, an individual on the street

who is acting suspiciously, may pursue that individual if

he runs away.

2. Whether an individual, pursued by the police, who

throws a vanity case into a pile of junk in the corner of

a basement in a building and then attempts to get out of

the basement through a locked door and a small window

on the far side of the room has abandoned the vanity case.

III

TABLE OF CONTENTS

PAGE

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Constitutional and Statutory Provisions Involved ..... 2

Statement of the Case ....................0.0ccee fp ever eee aoe 8 4

Reasons for Granting the Writ ......................0.cccceeee 8

The decision below raises substantial federal

questions which should be settled by this Court 8

The Lawfulness of the Police Pursuit ........... 9

The Abandonment Issue .........00....0..0ccccceeeeeeee, 11

tase cspecddesas cathe sas vinsdasevesovss eS tauen 13

Appendix A—Judgment and Opinion of New York

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Appendix B—oUrder of the Appellate Division Ap-

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Appendix C—Order of the Appellate Division on the

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Opinion of the Appellate Division on the Prior

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PREVIOUS PAGE WAS BLANK |

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TABLE OF AUTHORITIES

‘

PAGE

Cases:

Brookhart v. Janis, 384 U.S.1 (1966) 0. 11

Davis v. Mississippi, 394 U.S. 721 (1969) 00000. » 10

Johnson v. Zerbst, 304 U.S. 458 (1938) oo, 11

People v. Dread, 49 A.D.2d 401 (1st Dept. 1975) .......... 11

People v. Holdman, 383 N.E.2d 155 (Ill. 1978} ............ 11

People v. Howard, 50 N.Y.2d 583 (1980) .....0000000000... +

People v. Howard, 72 A.D.2d 503 (1st Dept. 1979) ...... 6

People v. Howard, 65 A.D.2d 714 (1978) 20000. 4)

People v. Kreichman, 37 N.Y.2d 693 (1975) 00000. 11

People v. Schneider, 58 A.D.2d 817 (2d Dept. 1977)... 11

Sibron v. New York, 392 U.S. 40 (1968) 0.00000... 9

SWEEy Vi CO, Te aes E CRID oiinncccseesdteeentccsncccscneses, 10

United States v. Mendenhall, 100 S.Ct. 1870 (1980)... 10

IN THE

Supreme Court of the United States

October ‘erm, 1980

State or New York,

Petitioner,

ArcHie Wituiam Howarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

The petitioner State of New York respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the New York Court of Appeals entered in this

proceeding on July 3, 1980.

Opinions Below

The opinion of the New York Court of Appeals, reported

at 50 N.Y.2d 583, appears as appendix ‘‘A’’ hereto. The

two prior opinions of the Appellate Division, First Depart-

ment, of the Supreme Court of the State of New York,

reported at 72 A.D.2d 503 and 65 A.D.2d 714, appear in

Appendix ‘‘B’’ and Appendix ‘‘C’’, respectively.

Jurisdiction

The judgment of the New York Court of Appeals was

entered on July 3, 1980. This petition for certiorari was

filed within 90 days* of that date. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1257(3).

Constitutional and, Statutory Provisions Involved

United States Constitution, Fourth Amendment:

The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

United States Constitution, Fifth Amendment:

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forees, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself; nor be deprived of life,

liberty or property, without due process of law, nor shall

* Petitioner understands that by a recent change of this Court’s

rules this petition for certiorari should have been filed within 60

days of the entry of judgment. Unaware of this rule change, peti-

tioner was relying on former rule 22(1). Petitioner, therefore, asks

this Court to waive this rule and accept this petition taking into

account the seriousness of the issues presented and the former rule

which allowed such petitions to be filed within 90 days.

3

private property be taken for public use, without just

compensation.

New York Criminal Procedure Law § 140.50 Tem-

porary questioning of persons in public places; search

for weapons:

1. In addition to the authority provided by this

article for making an arrest without a warrant, a police

officer may stop a person in a public place located

within the geographical area of such officer’s employ-

ment when he reasonably suspects that such person

is committing, has committed, or is about to commit

either (a) a felony or (b) a misdemeanor defined in

the penal law, and may demand of him his name,

address and an explanation of his conduct.

* * *

3. When upon stopping a person under cireum-

stances prescribed in subdivisions one and two a police

officer or court officer, as the case may be, reasonably

suspects that he is in danger of physical injury, he

may search such person for a deadly weapon or any

instrument, article or substance readily capable of

causing serious physical injury and of a sort not ordi-

narily carried in public places by law-abiding persons.

If he finds such a weapon or instrument, or any other

property possession of which he reasonably believes

may constitute the commission of a crime, he may take

it and keep it until the completion of the questioning,

at which time he shall either return it, if lawfully

possessed, or arrest such person.

Statement of the Case*

‘*Indicted for criminal posession of a controlled sub-

stance in the first degree and criminal possession of a

weapon in the third degree, defendant Howard moved to

suppress the gun and drugs which formed the basis for the

indictment. They had been taken from him by Officers

Charles Hanley and Cornelius Brosnan, who on the day of

the seizure were on anticrime patrol in The Bronx in plain-

clothes and in an unmerked automobile. At about 1 p.m.,

in broad daylight, on University Avenue in the vicinity

of Father Zeiser Place (an area which had a high incidence

of burglaries), the officers observed Howard crossing Uni-

versity Avenue diagonally in a southeasterly direction.

Their curiosity was aroused by the fact that defendant was

carrying what appeared to be a woman’s vanity case. As

they passed defendant, both officers saw him look over

his shoulder in their direction, in a manner described by

Officer Hanley as ‘‘furtive’’. Defendant looked in the diree-

tion of the car two or three more times until he reached

the center of University Avenue. Then as Hanley pulled

the car to the right side of the street, defendant reversed

direction, walked to the west side of the street and pro-

ceeded south on the sidewalk.

The police car made a U-turn and once again the officers

saw defendant look in their direction. As the car neared

him, defendant’s pace quickened. As the car came

parallel with defendant, Officer Brosnan displayed his

police shield and said, ‘Police Officer. I would like to speak

*The quoted portion of the Statement is taken verbatim from

the opinion of the New York Court of Appeals. 50 N.Y.2d 586-88.

4)

to you.’ Though looking directly at the officers, defendant

ignored them and continued walking south. The police

followed and at the next opening between parked cars, Bros-

nan repeated the same words, and began to get out of the

ear. Defendant, without saying anything, started to run,

holding the vanity case to his chest like a football would

be held. The officers pursued and were joined in the chase

by Victor Dragaj, a college freshman. Defendant pro-

ceeded over an iron fence, through an alleyway and into the

basement of a building, at which point, pursued by Dragaj,

defendant threw the vanity case into a pile of junk in the

corner and sought but was unable to escape through a

door which was locked, or a small window on the far side

of the room. Dragaj restrained defendant and was joined

by Officer Brosnan, who asked defendant why he had tried

to get away. About 25 seconds later they were joined by

Officer Hanley, who identified himself as a policeman and

asked about the vanity case or box. Dragaj pointed to

it and Hanley retrieved it from the rubbish pile, which was

beyond defendant’s reach, and immediately opened it, re-

vealing a .38 caliber revolver and heroin in glassine enve-

lopes. Hanley then placed defendant under formal arrest.

Criminal Term granted defendant’s motion to suppress,

concluding that defendant’s flight could not escalate sus-

picion to anything more, that even if defendant’s flight

made a stop and frisk permissible the officers went beyond

the allowable scope of CPL 140.50 since defendant was no

threat to the officers’ safety and the vanity case was outside

the grabbable area, and that there had been no abandon-

ment. The Appellate Division reversed on both grounds,

‘on the law and the facts’ (65 A.D.2d 714). Since reversal

6

was not on the law alonc, defendant’s application for per-

mission to appeal was dismissed (46 N.Y.2d 1080). Howard

then pleaded guilty to criminal possession of a controlled

substance and appealed as permitted by CPL 710.70 (subd

2).’’ The Appellate Division unanimously affirmed the

conviction. 72 A.D.2d 503.

Leave to appeal to the New York Court of Appeals was

granted by a judge of that court. 48 N.Y.2d 801. Ina 4

to 3 decision, the Court of Appeals reversed the judgment

of conviction, holding that a police officer ‘‘may not pursue,

absent probable cause to believe that the individual has

committed, is committing, or is about to commit a crime,

seize or search the individual or his po sessions, even

though he ran away.’’ 50 N.Y.2d at 586 (emphasis added).

Applying the stringent ‘‘probable cause’’ standard, the

four-judge majority ruled that the pursuit was unlawful

despite the fact that it had ‘‘no difficulty’’ in concluding

that the officers’ inquiry of the defendant was justified:

In an area beset by a high burglary rate defendant

was seen carrying a woman’s vanity case by the offi-

cers, one of whom testified that it was not uncommon

for a burglar to carry away loot in his victim’s luggage.

Considering those facts together with defendant’s

numerous glances at the officers’ car, his change of

direction and his quickened pace, we conclude that,

though the carrying by a man of a woman’s purse does

not constitute probable cause (People v. Davis, 36

N.Y.2d 280, cert. den. 423 U.S. 876) and though defend-

ant could, the car being unmarked and the officers in

plainclothes, have acted evasively out of fear for his

safety, the circumstances constituted a sufficient basis

for the inquiry made, which of itself constituted no

7

more than a minor inconvenience to defendant (Davis

v. Mississippi, 394 U.S. 721, 727, n.6, and cases cited,

infra, pp 7 and 8; see 3 La Fave, Search and Seizure,

§ 9.2).

50 N.Y.2d at 589-90.

The majority also ruled that there was no abandonment

of property ‘‘when the individual, cornered by his pursuers

in the basement of a building and while looking for a way

out of the basement, drops or throws a package he was

carrying into a pile of junk....’’ 50 N.Y.2d at 586. Judge

Meyer declared that the issue of abandonment is ‘‘essenti-

ally a question of constitutional law.’’ 50 N.Y.2d at 593.

His opinion for the majority concluded that ‘‘it cannot be

found that defendant’s act in dropping or throwing the

case in the corner while seeking to open or break down the

door and window in the basement was an act ‘involving

a calculated risk’ rather than a spontaneous reaction to

the necessity of evading his pursuers... or that he pur-

posefully divested himself of possession of the vanity

case.’’ Id.

Three judges on the Court dissented in an opinion

written by Associate Judge Matthew Jasen. The dissenters

agreed that there was sufficient basis for the police to

approach the defendant and question him and that an

individual has an absolute right to refuse to answer such

an inquiry. The dissenting opinion, however, disagreed

with the rulings that the police could not pursue the defend-

ant when he fled and that the defendant had not abandoned

the vanity case. Judge Jasen characterized the first ruling

as ‘‘absurd’’:

Yet, faced with these facts of an incriminating

nature, the majority today holds that the officers could

—_—

8

do no more than follow defendant to observe him from

a distance. Such a conclusion borders on the absurd.

The officers had every right, if not the obligation, to

pursue defendant in order to investigate this highly

suspicious conduct. In my opinion, once defendant

ran away, the officers’ level of suspicion was elevated

to one of probable cause, remembering that ‘‘[p]rob-

able cause exists if the facts and circumstances known

to the arresting officer warrant a prudent man in believ-

ing that [an] offense has been committed’’ by the

person to be arrested. (People v. Oden, 36 N.Y.2d

382, 384; Brinegar v. United States, 338 U.S. 160,

175-176.)

50 N.Y.2d at 595.

As to the second ruling concerning the abandonment, the

dissenters concluded that ‘‘there can be no doubt but that

the defendant, by throwing the vanity case on the pile of

junk in the corner of the basement, intended to rid himself

of the case containing incriminating evidence.’’ Id. at 596.

Reasons for Granting the Writ

The decision below raises substantial federal

questions which should be settled by this Court.

The four-to-three decision of the New York Court of

Appeals holds that the Fourth and Fifth Amendments to

the United States Constitution prohibit the police from

pursuing individuals who flee from legitimate police inquiry.

The decision also precludes trial courts from finding that

property has been abandoned, even though it has been

thrown in a junkpile from which the defendant appears to

be running away at the time he was apprehended by the

police while attempting to effectuate his flight. These

9

rulings unduly restrict the police from carrying out their

responsibilities, underestimate the probative value of flight

as consciousness of guilt, and impose unreasonable consti-

tutional standards for courts to find that property has been

abandoned.

The Lawfulness of the Police Pursuit

That the police may not pursue a suspect whom they

have attempted to lawfully stop, but who runs away, is an

unreasonable and illogical burden to place on our police.

As the three judges of the New York Court of Appeals

who dissented in this case observed, this holding ‘‘serves

merely to deal another serious and unjustifiable blow to

effective law enforcement.’’ 50 N.Y.2d at 594.

Indeed, the decision below seems to contradict language

employed by this Court in Sibron v. New York, 392 U.S.

40, 66 (1968) :

[D]eliberately furtive actions and flight at the ap-

proach of strangers or law officers are strong indicia

of mens rea, and when coupled with specific knowledge

on the part of the officer relating the suspect to the

evidence ©. crime, they are proper factors to be con-

sidered in the decision to make an arrest.

Ironically, the majority opinion below relies, in part, on

the Sibron decision for its ruling.

The essence of the decision below is that two experi-

enced police officers, in the presence of a man carrying a

woman’s vanity in an area noted for burglaries, who looked

furtively at them on six different occasions, who reversed

directions and increased his walking speed upon their

10

approach, and who, in response to the single request, ‘‘I

would like to speak to you,’’ put both arms around the bag

and fled, should not pursue the man. According to Judge

Meyer, the police may only continue observation of the

suspect if they do so ‘‘unobtrusively and do not limit

defendant’s freedom of movement by so doing.’’ 50 N.Y.2d

at 592. How can the police ‘‘unobtrusively’’ observe a

man who flees through the streets and alleys and hurdles an

iron fence? Inhibiting our police officers in such situations,

as the dissent below noted, ‘‘borders on the absurd.’’ 50

N.Y.2d at 595.

The rationale for the majority’s conclusion is its de-

termination to validate the right of an individual under

the Fourth and Fifth Amendments to be free from de-

tentions absent probable cause and to be able to remain

silent in the face of police interrogation. Surely this Court

should review this application of the Fourth and Fifth

Amendments to the United States Constitution, particu-

larly where, as here, the New York Court of Appeals

ostensibly relies on several of this Court’s decisions for

its ruling. United States v. Mendenhall, US. —,

100 8. Ct. 1870 (1980) ; Davis v. Mississippi, 394 U.S. 721

(1969) ; Terry v. Ohio, 392 U.S. 1 (1968).

Apparently the majority opinion equates flight from

police inquiry with refusal to answer police interrogation.

Petitioner can find no authority in this Court’s decisions

or the New York Court of Appeals’ own decsions for this

equation. Judge Meyer appears to have had the same

problem, as his opinion notes that there are ‘‘surprisingly

few cases’’ in this area and that, ‘‘[n]o New York appellate

11

opinion has dealt with the subject other than as it is touched

upon inferentially in general discussion of the right to

remain silent... .’’ 50 N.Y.2d at 590-91. At the same

time, the majority opinion disregarded numerous appellate

decisions emphasizing the value of flight as a factor de-

termining probable cause. See, e.g., Sibron v. New York,

supra; People v. Kreichman, 37 N.Y.2d 693, 699 (1975) ;

People v. Schneider, 58 A.D.2d 817, 818 (2d Dept. 1977) ;

People v. Dread, 49 A.D.2d 401, 405 (1st Dept. 1975) ; Peo-

ple v. Holdman, 383 N.E.2d 155, 158 (Ill. 1978).

Not only is the majority opinion below without prece-

dential support, illogical, and unduly burdensome on the

police, it may actually be dangerous. It sanctions flight

by suspects from the exercise of reasoned authority. Such

suspects may, as was the case here, be armed and poten-

tially dangerous. It should not be difficult to envision

additional perils to innocent bystanders on the street if

more individuals fiee from police authority rather than

deal face to face with police officers seeking to inquire.

Implicit in the majority holding is that a suspect may have

nothing to lose and everything to gain by running away

from a police officer who approaches.

The Abandonment Issue

According to the majority opinion, whether there is an

abandonment is ‘‘essentially a question of constitutional

law.’’ 50 N.Y.2d at 593. It allegedly applied the con-

stitutional standard enunciated by this Court in Brookhart

v. Janis, 384 U.S. 1, 4 (1966) and Johnson v. Zerbst, 304

U.S. 458, 464 (1938)—that the People must show ‘‘an inten-

tional relinquishment or abandonment of a known right or

12

privilege’’—to the facts of this case. Id. Yet, incredibly,

the majority opinion concluded that a vanity case tossed

amidst a pile of old furniture and junk in a basement by a

defendant in flight who is apprehended on the opposite

side of the room attempting to get out through a door and

a window is not an abandonment. Indeed, the majority

opinion overruled a unanimous ruling of the Appellate

Division that there had been a> abandonment. 65 A.D.2d

714 (1st Dept. 1978).

If the Court of Appeals’ ruling on this issue is permitted

to stand, therefore, it will be infinitely more difficult for

the police to respond intelligently to the common, everyday

types of on-the-street situations this case represents. The

ruling in this case will make it difficult, if not impossible,

to establish that property tossed away by defendants seek-

ing to avoid apprehension has been abandoned and is, there-

fore, seizable by the police.

Moreover, the dissenting opinion in the Court of Ap-

peals noted, ‘‘this is not the typical case where the theory

of abandonment is utilized to explain the dissipation of

taint flowing from illegal police activity. Instead, the

record reveals that this is a case where defendant attempted

to divest himself of the drugs and gun so that no incrimi-

nating evidence could be discovered by the police who were

rightfully in pursuit.’’ 50 N.Y.2d at 595.

Thus, significant questions are presented by the ma-

jority opinion’s ruling on the abandonment issue as well

as on the question of the legality of the police pursuit. If

the four-judge, majority opinion is allowed to stand, the

Federal Constitution will now preclude police officers in

13

New York (and perhaps other jurisdictions which will fol-

low this decision) from pursuing suspects who flee from

inquiry, which is unquestionably legitimate and reasonable.

Of the twelve New York appellate judges who have re-

viewed these issues, eight decided them in favor of the

People. The four-judge, majority opinion of the New York

Court of Appeals will, of course, stand nevertheless, unless

this Court agrees to review the significant constitutional

questions presented by this novel and ill-advised decision.

Conclusion

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the New York

Court of Appeals.

Respectfully submitted,

Mario Merona

District Attorney

Bronx County

Counsel for Petitioner

215 East 161 Street

Bronx, New York 10451

(212) 590-2060

Avan D. Marrus

Assistant District Attorney

Of Counsel

September 1980

=

a he.

Appendices

APPENDIX A

Judgment and Opinion of New York Court of Appeals

la

STATE OF NEW YORK—COURT OF APPEALS

1 No. 362

—SSEE

Tue Propie, &c.,

Respondent,

vs.

Arcuiz W. Howarp,

Appellant.

(362) Henry Winestine & William E. Hellerstein, N.Y.

Legal Aid, for appellant.

Mario Merola, DA, Bronx County (Cary W. Sucoff &

Timothy J. McGinn of counsel) for respondent.

Meyer, J.

An individual to whom a police officer addresses a

question has a constitutional right not to respond. He may

remain silent or walk or run away. His refusal to answer

is not a crime. Though the police officer may endeavor

to complete the interrogation, he may not pursue, absent

probable cause to believe that the individual has committed,

is committing, or is about to commit a crime, seize or

2a

search the individual or his possessions, even though he

ran away. Nor when the individual, cornered by his pur-

suers in the basement of a building and while looking for

a way out of the basement, drops or throws a package he

was carrying into a pile of junk, has he been shown to have

intentionally abandoned the package so as to make ° war-

rantless search and seizure permissible. The order of

the Appellate Division should, therefore, be reversed, the

motion to suppress should be granted and the indictment

should be dismissed.

Indicted for criminal possession of a controlled sub-

stance in the first degree and criminal possession of a

weapon in the third degree, defendant Howard moved to

suppress the gun and drugs which formed the basis for

the indictment. They had been taken from him by Officers

Charles Hanley and Cornelius Brosnan, who on the day

of the seizure were on anti-crime patrol in the Bronx in

plainclothes and in an unmarked automobile. At about

1 p.m., in broad daylight, on University Avenue in the

vicinity of Father Zeiser Place (an area which had a high

incidence of burglaries), the officers observed Howard cross-

ing University Avenue diagonally in a southeasterly direc-

tion. Their curiosity was aroused by the fact that defend-

ant was carrying what appeared to be a woman’s vanity

case. As they passed defendant, both officers saw him look

over his shoulder in their direction, in a manner described

by Officer Hanley as ‘‘furtive’’. Defendant looked in the

direction of the car two or three more times until he

reached the center of University Avenue. Then as Hanley

pulled the car to the right side of the street, defendant

reversed direction, walked to the west side of the street

and proceeded south on the sidewalk,

3a

The police car made a U-turn and once again the officers

saw defendant look in their direction. As the car neared

him, defendant’s pace quickened. As the car came parallel

with defendant, Officer Brosnan displayed his police shield

and said ‘‘Police Officer. I would like to speak to you.”’

Though looking directly at the officers, defendant ignored

them and continued walking south. The police followed

and at the next opening between parked cars, Brosnan re-

peated the same words, and began to get out of the car.

Defendant, without saying anything, started to run, hold-

ing the vanity case to his chest like a football would be

held. The officers pursued and were joined in the chase

by Victor Dragaj, a college freshman. Defendant pro-

ceeded over an iron fence, through an alleyway and into

the basement of a building, at which point, pursued by

Dragaj, defendant threw the vanity case into a pile of

junk in the corner and sought but was unable to escape

through a door which was locked, or a small window on the

far side of the room. Dragaj restrained defendant and

was joined by Officer Brosnan, who asked defendant why

he had tried to get away. About 25 seconds later they

were joined by Officer Hanley, who identified himself as

a policeman and asked about the vanity case or box. Dragaj

pointed to it and Hanley retrieved it from the rubbish pile,

which was beyond defendant’s reach, and immediately

opened it, revealing a .38 caliber revolver and heroin in

glassine envelopes. Hanley then placed defendant under

formal arrest.

Criminal Term granted defendant’s motion to suppress,

concluding that defendant’s flight could not escalate sus-

picion to anything more, that even if defendant’s flight

made a stop and frisk permissible the officers went beyond

4a

the allowable scope of Section 140.50 of the Criminal Pro-

cedure Law since defendant was no threat to the officers’

safety and the vanity case was outside the grabbable area,

and that there had been no abandonment. The Appellate

Division reversed on both grounds, ‘‘on the law and the

facts’’ (65 AD2d 714). Since reversal was not on the law

alone defendant’s application for permission to appeal was

dismissed (46 NY2d 1080). Howard then pleaded guilty to

criminal possession of a controlled substance and appealed

as permitted by subdivision (2) of Section 710.70 of the

Criminal Procedure Law. The Appellate Division having

affirmed without opinion (72 AD2d 503), leave to appeal

was granted by a judge of this court (48 NY2d 801).

Defendant argues that there was no justification for

police action of any kind; that in any event he had a consti-

tutional right to refuse to answer a police inquiry; that

his exercise of that right by walking and then running

away did not justify detention of him or seizure of the

vanity case; and that as a matter of law there was no

abandonment. While we hold that there was a sufficient

basis to permit inquiry, we agree that defendant had the

right not to answer, that his running did not, absent any

indication that any crime had been or was about to be com-

mitted, permit detention; that there was no probable cause

for defendant’s arrest; and that the vanity case had not

been abandoned.

As we have recently had reason to reiterate in People

v Belton (50 NY2d —— [decided June 5, 1980]), ‘‘[t]he

privacy interest of our citizens is far too cherished a right

to be entrusted to the discretion of the officer in the field.’’

That privacy interest is protected by the mardate of the

Fourth Amendment to the United States Constitution and

5a

Section 12 of Article I of our state Constitution both of

which, in identical language, state: ‘‘The right of the people

to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures, shall not be

violated.’’ It is protected as well by Section 140.50 of the

Criminal Procedure Law, which outlines when a police offi-

cer may stop and search persons in a public place,’ and

by decisional law expounding the common law and inter-

preting the constitutional and statutory safeguards.

The principles that have evolved seek to balance soci-

ety’s interest in the detection and prevention of crime and

in the protection of the lives and safety of law enforcement

officers with the interest of individuals in living their lives

free from governmental interference. Therefore, whether

there has been an unreasonable breach of legitimate expec-

tations of privacy involves consideration of (1) the nature

and scope or severity of the interference with individual

1. Subdivisions 1 and 3 of CPL §140.50 read, in pertinent part:

“1, ... [A] police officer may stop a person in a public

place . . . when he reasonably suspects that such person

is committing, has committed or is about to commit

either (a) a felony or (b) a misdemeanor . . . and may

demand of him his name, address and an explanation of

his conduct.

i ae

“3. When upon stopping a person under circumstances

prescribed in [subdivision] one .. . a police officer .. .

reasonably suspects that he is in danger of physical

injury, he may search such person for a deadly weapon

or any instrument, article or substance readily capable

of causing serious physical injury and of a sort not

ordinarily carried in public places by law-abiding persons.

If he finds such a weapon or instrument, or any other

property possession of which he reasonably believes may

constitute the commission of a crime, he may take it and

keep it until the completion of the questioning, at which

time he shall return it, if lawfully possessed, or arrest

such person.”

6a

liberty, (2) the public interest serYed, and (3) the objective

facts upon which the enforcement officer relied, in light

of his knowledge and experience (Kee United States v Men-

denhall, US ——, USLW 4975, 4580 [Powell, J., con-

curring]; see also Brown v Texds, 443 US 47, 50-51; Duna-

way v New York, 442 US 200, 211-214; Delaware v Prouse,

440 US 648, 654-655; Terry v Ohio, 392 US 1, 20-22; which

it is argued affect the classifications we enunciated in Peo-

ple v De Bour, 40 NY2d 210).

We have no difficulty in concluding that the officers’ re-

quest for information from defendant was justified under

those criteria. In an area beset by a high burglary rate

defendant was seen carrying a woman’s vanity case by

the officers, one of whom testified that it was not uncommon

for a burglar to carry away loot in his victim’s luggage.

Considering those facts together with defendant’s numerous

glances at the officers’ car, his change of direction and his

quickened pace, we conclude that, though the carrying by

a man of a woman’s purse does not constitute probable

cause (People v Davis, 36 NY2d 280, cert den 423 US 876)

and though defendant could, the car being unmarked and

the officers in plainclothes, have acted evasively out of fear

for his own safety, the circumstances constituted a sufficient

basis* for the inquiry made, which of itself constituted no

more than a minor inconvenience to defendant (David v

Mississippi, 394 US 721, 727, n 6, and cases cited infra,

pp 7 and 8; see 3 La Fave, Search & Seizure, par 9.2).

2. While Officer Brosnan conceded that he was “curious as to

what was in the bag,” his inquiry cannot be said to have resulted

from “mere whim, caprice or idle curiosity” (Peoplev De Bour, 40

NY2d at p 217, supra) in light of the other circumstances, nor is

there any indication that it was “undertaken with the intent to

harass” (id).

7a,

There was, therefore, basis for questioning defendant,

but there was nothing that made permissible any greater

level of intrusion. The officers had no information that

a crime had occurred or was about to take place, had not

seen defendant do anything criminal, and were confronted

only by facts susceptible of innocent interpretation (State

v Saia, 302 So2d 869 [La], cert den 420 US 869). Presence

in an area of ‘‘frequent burglaries’’ was an insufficient

basis (People v Schanbarger, 24 NY2d 288, 291); in this

day of unisex haireuts and clothing, the carrying of a

woman’s vanity case was at best equivocal (People v Davis,

36 NY2d 280, cert den 423 US 876; ef. People v Larkin,

21 AD2d 902, supra); and defendant’s ‘‘furtive’’ move-

ments (repeated glances, change of direction, quickened

pace) were, the car being unmarked and the officers not in

uniform as already noted, at best ambiguous (cf. People v

Batista, 68 AD2d 515, 517; People v Towers, 49 AD2d 839;

see .\nnotation: Search & Seizure: Furtive Movement or

Gesture as Justifying Police Search, 45 ALR3d 581, 600

ff). The circumstances justified the inquiry made and

would have justified the officers in keeping defendant under

observation (People v Sobotker, 48 NY 559, 564) but were

not a predicate for anything more (cf. Dunaway v New

York, 442 US 200, 211-214; Sibron v New York, 392 US

40, 64).

But while the police had the right to make the inquiry,

defendant had a constitutional right not to respond. This

is so both because the Fifth Amendment to the United

States Constitution and its state counterpart (New York

Const, Art 1, Sec 6) permitted him to remain silent and

because the Fourth Amendment and its Article 1, Section

12 state counterpart protect him from detention amounting

8a

to seizure unless there is probable cause. As Mr. Justice

Brandeis put it long age in Olmstead v United States (277

US 438, 478), defendant had ‘‘the right to be let alone.’’

There are surprisingly few cases explicitly so hold-

ing, probably because few individuals feel they can walk

away or refuse to answer (see Illinois Migrant Council v

Pilliod, 398 F Supp 882, 899, affd 540 F2d 1062, on reh 548

F2d 715; A.L.I. Model Code of Pre-Arraignment Procedure

[1975], p 257). No New York appellate opinion has dealt

with the subject other than as it is touched upon inferen-

tially in general discussion of the right to remain silent

(e.g., People v Conyers, 49 NY2d 174), but it has been

passed upon at Criminal Term and in out-of-state cases

and legal commentaries. Thus, People v Burns (91 Mise

2d 1080, 1086 [Goldfluss, J.]) held that ‘‘What sets this

Nation apart from others is that its system of criminal

prosecution is accusatorial, not inquisitorial. A citizen may,

if he so chooses, exercise the right to demand that the police

secure evidence of his guilt from other sources than from

out of his own mouth,’’ and in People v De Fillippo (80 Mich

App. 197, 202, reversed on other grounds sub nom De Fil-

lippo v Michigan, 443 US 31) the Michigan Court of Appeals

held that ‘‘While police may under certain circumstances

intrude upon a person’s privacy by stopping him and

asking questions (Z'erry v Ohio, 392 US 1; 88 S Ct 1868;

20 L Ed 2d 889 [1968]), there can be no requirement that

the person answer.’’ In support of that holding the Michi-

gan court cited the reference in Davis v Mississippi (394

US 721, 727, fn 6) to ‘‘the settled principle that while the

police have the right to request citizens to answer volun-

tarily questions concerning unsolved crimes they have no

right to compel them to answer.’’ Supporting authority

9a

is to be found in cases defining ‘‘seizure’’ by whether the

individual interrogated had lost his ‘‘equal right to ignore

his interrogator and walk away’’ (Terry v Ohio, 392 US 1,

33 [Harlan, J., concurring], see also 392 US at p 16 [ma-

jority opinion], 392 US at p 34 [White, J., concurring] ;

accord: United States v Mendenhall, US —, 48

USLW 4575, 4578 [Stewart, J. in an opinion in which

Rehnquist, J. joined and with which Burger, C.J., Powell

and Blackmun, JJ. did ‘‘not necessarily disagree’’]). Other

cases and authorities conceptually in accord with our hold-

ing are Umted States v Price (599 F2d 494) ; United States

v Wylie (569 F2d 62, cer den 435 US 944) ; Commonwealth

v Ellis (223 Pa Super 1969); State v Tsukiyama (56 Haw

8); State v Evans (16 Ore App 189); People v Ortiz (18

Ill App 3d 431); Amsterdam, Federal Constitutional Re-

strictions on the Punishment of Crimes of Status, Crimes

of General Obnoxiousness, Crimes of Displeasing Police

Officers, and the Like (3 Crim Law Bull 205, 228).

Nor can the failure to stop or cooperate by identifying

oneself or answering questions be the predicate for an

arrest absent other circumstances constituting probable

cause (People v Samuels, 50 NY2d —— [decided herewith] ;

People v Berck, 32 NY2d 567, 574, cert den 414 US 1093;

Brown v Texas, 443 US 47; A.L.I. Model Code of Pre-

Arraignment Procedure [1975], p 300; but see 1 La Fave,

Search & Seizure 673-675, §3.6[f]). This is because the

failure to answer ‘‘cannot constitute a criminal act’’ (Peo-

ple v Schanbarger, 24 NY2d 288, 292).

That does not mean that the police in furtherance of

their duties may not continue observation provided that

they do so unobtrusively and do not limit defendant’s

freedom of movement by so doing. Defendant’s flight, had

10a

there also been indicia of eviminal activity, would have been

an important factor in determining probable cause (Sibron

v New York, 392 US 40, 66, 67; People v Kreichman, 37

NY2d 693, 699; People v Dread, 49 AD2d 401, affd 41 NY2d

871; People v Schneider, 58 AD2d 817, 818), but where, as

here, there is nothing to establish that a crime has been or

is being committed, flight, like refusal to answer, is an

insufficient basis for seizure or for the limited detention

that is involved in pursuit (Brown v Texas, 443 US 47, 50;

Sibron v New York, supra; Wong Sun v United States, 371

US 471; People v Kreichman, 37 NY2d at p 699, supra;

State v Finklea, 313 So2d 224 [La]; 1 La Fave, Search &

Seizure 669, §3.6[e]; A.L.I. Model Code, supra 298 [‘‘The

factors of flight and concealment are also attenuated to the

point where they will not alone justify an arrest in cases

where there is little or no probability that a crime has

been committed’’]). The circumstances existing at the

moment defendant Howard was seized by Officer Brosnan

did not constitute probable cause for arrest. The opening

of the vanity case cannot be justified as incident to a lawful

arrest, nor since it was as the Trial Judge found outside

the grabbable area can it be justified under subdivision 3

of Section 140.50 of the Criminal Procedure Law. The

contents of the vanity case must, therefore, be suppressed

unless defendant abandoned it.

Property which has in fact been abandoned is outside

the protection of the constitutional provisions (People v

Pittman, 14 NY2d 885; People v Lopez, 22 AD2d 813;

People v Prisco, 61 Mise2d 730). We do not find it neces-

sary to consider whether the facts of this case bring it

within the concept of police action short of illegal seizure

but sufficiently coercive to nullify an abandonment for

lla

Fourth Amendment purposes (see 1 La Fave, Search &

Seizure 372-374, §2.6[b]; ef. Commonwealth v Barnett, 484

Pa 211), for we agree with the hearing judge that intent

to abandon cannot be found on the facts of this case.

Whether there was an abandonment is partly a matter

of property law but essentially a question of constitutional

law. There is a presumption aganist the waiver of con-

stitutional rights. It is the People’s burden to overcome

that presumption by evidence of ‘‘an intentional relinquish-

ment or abandonment of a known right or privilege’’

(Brookhart v Janis, 384 US 1, 4; Johnson v Zerbst, 304 US

458, 464; People v Whitehurst, 25 NY2d 389, 391). The

proof supporting abandonment should ‘‘reasonably beget

the exclusive inference of the throwing away’”’ (Foulke v

New York Consolid. R.R., 228 NY 269, 273, quoted with

approval in United States v Cowan, 396 F2d 83, 87). So

concealment in a trash can does not constitute an abandon-

ment (Work v United States, 243 F2d 660, 662; State v

Chapman, 250 AD2d 203, 212 [Maine]).

As the hearing judge noted, the act of defendant in hold-

ing on to the case during the entire chase belies intention

to abandon. Since Dragaj and the police were in hot pur-

suit, it cannot be found that defendant’s act in dropping

or throwing the case in the corner while seeking to open

or break down the door and window in the basement was

an act ‘‘involving a calculated risk’’ rather than a spon-

taneous reaction to the necessity of evading his pursuers

(see People v Boodle, 47 NY2d 398, 404, cert den US

——) or that he purposefully divested himself of possession

of the vanity case.* Under those circumstances he cannot

3. Cf. Walter v United States (—— US ——, n 11, 48 USLW

4807, 4810, n 11).

12a

be said to have knowingly waived his constitutional protec-

tion against warrantless search of the case.

For the foregoing reasons, the order of the Appellate

Division should be reversed, the motion tu suppress should

be dismissed (see Matter of Forte v Supreme Court of the

State of New York, 48 NY2d 179).

JAsEN, J. (dissenting) :

Certannly, I have no quarrel with two of the conclusions

reached by the majority, to wit: that there existed a suffi-

cient basis for the police officers to approach defendant in

order to ask questions (see People v DeBour, 40 NY2d 210) ;

and that an individual has the absolute right to refuse to

answer inquiries posed to him by law enforcement. officers

(see People v Rogers, 48 NY2d 167, 176 [dissenting op]).

However, I simply cannot agree with the majority’s holding

that the police officers could not pursue defendant. Given

the particular facts of this case, the officers were completely

justified in both chasing and seizing defendant, and search-

ing the vanity case. A contrary conclusion serves merely

to deal another serious and unjustifiable blow to effective

law enforcement.

This is another in a vast line of cases where the defend-

ant asserts as his sole ground for reversal that the actions

of the police officers violated his constitutionally guaranteed

right to be free from unreasonable searches and seizures.

(U S Const, 4th Amdt; N Y Const, art I, § 12.) While this

observation surely does not relieve the courts of their re-

sponsibility of overturning a criminal conviction when a

valid constitutional claim is asserted no matter how un-

pleasant the thought that a criminal will ‘‘go free because

the constable has blundered’’ (People v DeFore, 242 NY 13,

_

~

\

\

13a

21 [Cardozo Ch. J. ]), courts should not blindly reach out

and find merit in a constitutional claim where none exists.

It seems odd that an admittedly guilty person should be set

free, especially where, as here, the police officers acted in

a most reasonable manner.

_ As the majority candidly concedes, the police officers

were justified in approaching defendant to request informa-

tion. Defendant was observed in a high-crime area carry-

ing 2 woman’s vanity case, an item of luggage often times

used by a burglar when absconding with his bounty. Fur-

ther, defendant cast numerous glances at the police officers

\ when they passed him on University Avenue. As Officer

) Hanley pulled the car to the side of the road, defendant then

changed direction to return to the far side of the street.

Once the officers made a U-turn to approach defendant, his

pace quickened in an obvious attempt to avoid confronta-

tion.

Seeing these highly suspicious acts, the officers were

absolutely justified in pulling their car alongside defendant

and, after displaying a shield, requesting defendant to

speak to them. In addition, the officers acted reasonably in

following defendant a short distance to repeat their request.

Certainly, the officers could have believed that defendant

merely could not hear them when they first approached, due

to traffic noise or the like.

Then, as Officer Brosnan began to get out of the car,

defendant ran away, clutching the vanity case to his breast.

The officers had yet to ask defendant a single question as to

his activities, and certainly did not physically intimidate

defendant. No guns were drawn no coercive language was

employed, and no binding orders were transmitted.

l4a

Yet, faced with these facts of an incriminating nature,

the majority today holds that the officers could do no more

than follow defendant to observe him from a distance. Such

a conclusion borders on the absurd. The officers had every

right, if not the obligation, to pursue defendant in order to

investigate this highly suspicious conduct. In my opinion,

once defendant ran away, the officers’ level of suspicion was

elevated to one of probable cause, remembering that

‘*{p]robable cause exists if the facts and circumstances

known to the arresting officer warrant a prudent man in

believing that [an] offense has been committed’’ by the

person to be arrested. (People v Oden, 36 NY2d 382, 384;

Brinegar v United States, 338 US 160, 175-176.)

It is true that flight from police, in and of itself, would

not constitute a sufficient basis for arrest. However, it is

equally as true that defendant’s flight is an important

factor to be considered when determining whether probable

cause existed. (See, eg., Sibron v New York, 392 US 40,

66-67; People v Kreichman, 37 NY2d 6938, 699; People v

Schneider, 58 AD2d 817, 818; People v Dread, 49 AD2d

401, 405; People v Archiopoli, 39 AD2d 748). Here, de-

fendant’s flight certainly bolstered and confirmed the offi-

cers’ suspicion—based upon their prior observations—that

defendant was engaging in criminal activity. Thus, the

officers had probable cause to arrest defendant, and the

arrest was entirely proper.

Nor can I accept the majority’s holding that defendant

did not evince an intent to abandon the vanity case. I

would agree completely with the unanimous Appellate Divi-

sion that under the circumstances present here ‘‘there was

an abandonment of the bag.’’ (65 AD2d, at p 714.)

As the above-stated analysis demonstrates, the action

of the police officers in seizing defendant were totally rea-

l5a

sonable and beyond reproach. Thus, this is not the typical

case where the theory of abandonment is utilized to explain

the dissipation of taint flowing from illegal activity. (E.g.,

People v Boodle, 47 NY2d 398, cert den 100 S Ct 461;

People v Townes, 41 NY2d 97.) Instead, the record reveals

that this is a case where defendant attempted to divest

himself of the drugs and gun so that no incriminating evi-

dence could be discovered by the police who were rightfully

in pursuit.

When ‘‘[t]he actions of defendant indicate an intent to

purposefully divest himself of possession of the [prop-

erty]’’, an abandonment will be said to have occurred.

(People v Brown, 40 AD2d 527, 528.) Here, there can be

no doubt but that defendant, by throwing the vanity case

on the pile of junk in the corner of the basement, intended

to rid himself of the case containing incriminating evidence.

He obviously did not harbor an expectation of retrieving

the case, nor is there any evidence that he threw the case

in the corner after the police arrived. Rather, defendant

attempted to divest himself forever of the damning evidence

before the law enforcement officers appeared. For this

reason, the warrantless search of the vanity case was

proper, inasmuch as defendant abandoned the case, thus

relinquishing his privacy interest therein.

Accordingly, since the seizure of defendant and the

search of the vanity case were eminently proper, I would

affirm the order of the Appellate Division.

* * *

Order reversed, motion to suppress granted and indictment

dismissed. Opinion by Meyer, J. All concur except Jasen,

J., who dissents and votes to affirm in an opinion in which

Gabrielli and Wachtler, JJ., concur.

Decided July 3, 1980

APPENDIX B

Judgment and Opinion of

Appellate Division, First Department

(October 4, 1979)

17a

Order of the Appellate Division Appealed From

At a term of the Appellate Division of the

Supreme Court held in and for the First Ju-

dicial Department in the County of New York,

on 4th day of October, 1979

Present—Hon. Arnold L. Fein, Justice Presiding

Joseph P. Sullivan

Myles J. Lane

Vincent A. Lupiano

J. Robert Lynch Justices

Order of Affirmance on Appeal from Judgment

6098

rr

THE PEOPLE OF THE STATE oF New York,

Respondent,

against

Arcuig Wiuu1AmM Howarp,

Defendant-Appellant.

Gi

An appeal having been taken to this Court by the

defendant-appellant from the judgment of the Supreme

Court, Bronx County (Cohen, J.), rendered on January 2,

1979 (Cohen, J., at plea and sentence; Lowe, J., at suppres-

sion), convicting defendant of criminal possession of a

controlled substance in the third degree, and said appeal

having been argued by Mr. Henry Winestine of counsel

18a

for the appellant, and by Mr. Cary W. Sucoff of counsel

for the respondent; and due deliberation having been had

thereon,

It is unanimously ordered and adjudged that the judg-

ment so appealed from be and the same is hereby, in all

things, affirmed, without prejudice to a renewed application

to reduce sentence before the sentencing court. See Penal

Law, § 60.09, effective September 1, 1979.

ENTER:

Joseph J. Lucchi

Clerk.

Counsel for appellant is referred to

§ 606.5, Rules of the Appellate

Division, First Department.

APPENDIX C

Judgment and Opinion of

Appellate Division, First Department

(November 16, 1978)

19a

Order of the Appellate Division on the Prior Appeal

At a term of the Appellate Division of the

Supreme Court held in and for the First Ju-

dicial Department in the County of New York,

on November 16, 1978

Present—Hon. Theodore R. Kupferman, Justice Presiding

Harold Birns

Arnold L, Fein

Arthur Markewich

Leonard H. Sandler, Justices

3489

A

Tue Prop.e or THE Stare or New York,

Appellant,

against

Arcure Wiuui1Am Howarp a/k/a WILLIAM

Arcuiz Howarp,

Defendant-Respondent.

ef

An appeal having been taken to this Court by the appel-

lant from the order of the Supreme Court, Bronx County

(Lowe, J.), entered on June 5, 1978, granting defendant’s

motion to suppress physical evidence pursuant to CPL

710.20, and said appeal having been argued by Mr. Alan

D. Marrus of counsel for the appellant, and by Mr. Henry

Winestine of counsel for the respondent; and due delibera-

20a

tion having been had thereon, and upon the memorandum

decision of this Court filed herein,

It is unanimously ordered that the order so appealed

from be and the same is hereby reversed, on the law and

the facts, and the motion to suppress denied, and the matter

remanded for further proceedings. Findings of fact in-

consistent herewith are reversed.

ENTER:

Joseph J. Lucchi

Clerk.

2la

Opinion of the Appellate Division on the Prior Appeal

Kupferman, J.P., Birns, Fein, Markewich, Sandler, JJ.

3489

ee

Tur Prope or THe Stare or New York,

Appellant, A.D. Marrus

agamst

Arcure Witu1am Howarp a/k/a WILLIAM

Arcuie Howarp,

Defendant-Respondent. H. Winestine

A I

Order, Supreme Court, Bronx County (Lowe, J.) en-

tered June 5, 1978, granting the defendant-respondent’s

motion to suppress physical evidence pursuant to CPL Sec.

710.20, unanimously reversed on the law and the facts, and

the motion to suppress denied; and the matter remanded

for further proceedings. Findings of fact inconsistent

herewith are reversed.

Two police officers in plainclothes and in an unmarked

car in a high crime area observed the defendant carrying

a small piece of luggage variously described as a woman’s

vanity case or a square lunch box. Because he looked

suspicious, one of the officers came abreast of him, dis-

played his police shield and said ‘‘police officer, I would

22a

like to speak to you’’. The defendant ignored the police,

and when they repeated the statement, the defendant began

to run and climbed an iron fence, with one of the police

officers in pursuit. A civilian also joined the chase and

followed the defendant into a basement where he saw him

throw the bag into a corner among some old furniture.

The defendant then ran to the opposite wall and tried to

escape through a small window. The civilian held him

until the police arrived. The officer could not find the bag,

but the civilian pointed to it, and when the officer opened

it, he discovered a large amount of heroin in glassine

envelopes and a revolver.

The officers’ actions were proper throughout the entire

incident, and the motion to suppress should have been de-

nied. Under the circumstances heretofore disclosed, the

police were entitled to pursue the defendant. People v.

Rosemond, 26 N. Y. 2d 101; People v. Archiopoli, 39 A. D.

2d 748. Further, there was an abandonment of the bag.

People v. Brown, 40 A. D. 2d 527.

Order filed.