Appendix — New York v. Spencer

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The People &c., Respondent, v. Clive Spencer, Appellant.

No. 229

COURT OF APPEALS OF NEW YORK

Jay H. Schwitzman, for appellant.

Roseann B. MacKechnie, for respondent.

OPINION:

CIPARICK, J.:

The question presented is whether the police may stop a

moving vehicle in order to request information of the driver

concerning the whereabouts of a criminal suspect. We con-

clude that the stop in this case was an unreasonable seizure

within the meaning of the Fourth Amendment.

I

On May 17, 1989, police officers Edward Alonge and

Donald Conceicao were on routine patrol in a marked radio

car when they received a radio report that a woman had been

assaulted with a gun by her boyfriend the previous day. At

11:20 p.m., the officers picked up the com* iainant and, with

her in the car, drove around the neighborhood searching for

the suspect. According to the testimony of officer Alonge,

they drove around for “No more than four or five minutes”

before the complainant saw defendant seated behind the

wheel of a double-parked car and stated that he was a friend

of her boyfriend’s and that the latter might be nearby. At this

time, defendant’s vehicle began moving. The officers fol-

lowed defendant and pulled him over using their turret lights

and car horn. Defendant halted his vehicle on the next block

and both officers approached the car carrying lighted flash-

lights. As the officers drew near they observed a female pas-

senger. Upon shining their flashlights into the interior of the

vehicle, the officers observed at the passenger’s feet a clear

plastic bag containing green vegetable matter which they

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believed to be marijuana. The officers asked defendant and

his passenger to exit the vehicle.

While defendant was outside the vehicle, officer Alonge

observed the butt of a revolver protruding from underneath

the driver’s seat on the floor of the car. The officers deter-

mined that the gun was loaded and placed defendant under

arrest. They permitted the passenger to leave the scene after

defendant asserted she had nothing to do with the alleged

marijuana. Defendant was charged with criminal possession

of a weapon in the third degree and criminal possession of

marijuana in the fourth degree.

Defendant moved to suppress the physical evidence on the

ground that its seizure violated his constitutional rights. The

suppression court denied defendant’s motion, finding that the

police officers in this case had a right to request information

of defendant and could stop his car in order to effectuate that

right. The court stated: “at the time the police resolved to ex-

ercise their right to request information, defendant’s vehicle

was in motion. Under these circumstances, common sense

demands that they be permitted to stop it.”

The Appellate Division affirmed, holding that the police

acted reasonably in stopping a defendant’s car to request in-

formation concerning a suspect’s whereabouts. The court re-

lied principally on People v John BB. (56 NY2d 482 cert

denied 459 U.S. 1010), in which we held that an automobile

stop made pursuant to a uniform, nonarbitrary, roving road-

block was constitutionally permissible.

On this appeal, defendant argues that the Appellate Divi-

sion erred in holding that the police could validly stop his

vehicle in order to request intocmaOn of him. We agree and

therefore reverse.

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II

Although the right to stop a vehicle is generally analogous

to the right to stop a pedestrian, police/motorist encounters

must be distinguished from police/pedestrian encounters

when the police are operating on less than reasonable suspi-

cion. This is because “the obvious impact of stopping the pro-

gress of an automobile is more intrusive than the minimal

intrusion in stopping a pedestrian” and constitutes “at least a

limited seizure subject to constitutional limitations” (People v

John BB., 56 NY2d 482, 487), whereas the common-law right

of inquiry -- much less the right to request information -- does

not include the right to unlawfully seize (see People v Sobot-

ker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 418).

We have stated, time and again, that the stop of an auto-

mobile is a seizure implicating constitutional limitations

(People v May, 81 NY2d 725; Sobotker, 43 NY2d 559, supra;

Ingle, 36 NY2d 413, supra; see Delaware v Prouse, 440 U.S.

648, 653 [“stopping an automobile and detaining its occu-

pants constitute a ‘seizure’ within the meaning of [the Fourth

Amendment], even though the purpose of the stop is limited

and the resulting detention brief”]). Contrary to the urging of

the dissent that we allow preventative “informational stops”

so long as some articulable basis exists for that interference,

police stops of automobiles in this State are legal only pursu-

ant to routine, nonpretextual traffic checks to enforce traffic

regulations or when there exists at least a reasonable suspi-

cion that the driver or occupants of the vehicle have commit-

ted, are committing, or are about to commit a crime (see

People v Harrison, 57 NY2d 470, 476 [an automobile stop is

“a limited seizure of the person which at least requires reason-

able suspicion”]; Sobotker, 43 NY2d, at 563; Ingle, 36 NY2d,

at 417-420).

We reaffirmed these principles recently in People v May

(81 NY2d 725), where the defendant and a female companion

paca et aap 4

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were sitting in a parked car on a deserted street known for

criminal activity. When two police officers in a patrol car ap-

proached with red turret lights and a spotlight, defendant

started his car and slowly pulled away. Defendant was or-

dered to pull over. We held that the police officers’ premise

for that order -- the common-law right of inquiry -- did not

satisfy Fourth Amendment standards: “the stop was proper

only if the officers had a reasonable suspicion of criminal ac-

tivity” (id. at 727).

Of course, nothing prevented the police in May from mak-

ing a common-law inquiry of the individuals in the vehicle

while they were still parked, based on the second level

“founded suspicion that criminal activity is afoot”, which

permits interference “with a citizen to the extent necessary to

gain explanatory information, but short of a forcible seizure”

(People v De Bour, 40 NY2d 210, at 223). But we have made

clear that the right to stop a moving vehicle is distinct from

the right to approach the occupants of a parked vehicle (see

Harrison, 57 NY2d 470 [police needed only articulable basis

to approach parked car and request information but, absent

reasonable suspicion, officers could not forcibly detain or

constructively stop defendants by ordering them to remain in

car]). Thus, once the defendant in May indicated his unwill-

ingness to speak to the officers by pulling away, they should

not have forced him to stop absent a reasonable suspicion of

criminal activity (May, 8] NY2d, at 728). “Any other rule”,

we stated, “would permit police seizures solely if circum-

stances existed presenting a potential for danger” (id.).

Clearly, as in cases involving the forcible detention of pe-

destrians, the instant stop of defendant was a seizure. At the

moment defendant was pulled over the encounter lost the con-

sensual characteristics which mark permissible first level in-

trusions under the De Bour four-part test (see People v De

Bour, 40 NY2d 210). The question we must address in this

case is whether that seizure was reasonable.

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The reasonableness of a seizure must be judged “by balanc-

ing its intrusion on the Fourth Amendment interests of the

individual involved against its promotion of legitimate gov-

ernmental interests” (People v Scott, 63 NY2d 518, 525; Peo-

ple v John BB., supra; Delaware v Prouse, supra). Important

factors in that balancing analysis are the effectiveness of the

procedure in relation to the governmental interest to be pro-

moted, and “the degree of intrusion of the procedure on the

individual subjected to it, measured in terms of both its sub-

jective effect and the degree of discretion vested in the offi-

cials charged with carrying it out” (Scatt, 63 NY2d, at 525,

supra).

Applying this balancing analysis to the instant case, we

conclude that the nature and degree of the police intrusion

outweighed the governmental interest at issue. It is not

enough, contrary to the dissent’s view, that articulable gov-

ernmental interests supported the stop. While the nature and

degree of the governmental interest at issue here -- investiga-

tion and detection of past criminal conduct -- is undoubtedly

significant, it does not implicate the same important social

objectives that are at issue when police are investigating re-

cent or ongoing suspected criminal activity (see United States

v Hensley, 469 U.S. 221, 228).

In United States v Hensley (469 U.S. 221), the Supreme

Court upheld the Jerry stop of an individual based on a

“wanted flyer” indicating that the defendant was a suspect in a

past robbery. Nevertheless, the Court addressed the nature of

the governmental interest implicated by the investigation of

past criminal activity and made an important distinction that

is relevant here:

The factors in the balance may be somewhat differ-

ent when a stop to investigate past criminal activity

is involved rather than a stop to investigate ongoing

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criminal conduct. This is because the governmental

interests and the nature of the intrusions involved in

the two situations may differ. As we noted in Terry,

one general interest present in the context of

ongoing or imminent criminal activity is “that of ef- |

fective crime prevention and detection.” * * * A 7

stop to investigate an already completed crime does )

not necessarily promote the interest of crime pre-

vention as directly as a stop to investigate suspected

ongoing criminal activity. Similarly, the exigent cir-

cumstances which require a police officer to step in

before a crime is committed or completed are not

necessarily as pressing long afterwards. Public

safety may be less threatened by a suspect in a past

crime who now appears to be going about his lawful

business than it is by a suspect who is currently in

the process of violating the law. Finally, officers

making a stop to investigate past crimes may have a

wider range of opportunity to choose the time and

circumstances of the stop.

Not only is the dissent unwilling to acknowledge that stop-

ping an automobile for the purpose of determining whether its

occupants can provide information implicating others in past

criminal activity involves a less substantial governmental in-

terest than is at issue when the police are involved in actual

crime prevention, it blurs the distinction between current or

imminent, and past criminal activity.

The dissent’s efforts at injecting urgency of gathering fresh

information on the violent felon’s then whereabouts and the

prevention of further violence (see, dissenting opn., at 762) is

belied by the record. The record is absolutely devoid of any

evidence justifying the inference that the complainant, or

anyone else for that matter, was in danger of further harm

from the suspect. There is similarly no indication that the

complainant had ever been assaulted by the suspect before

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this incident. Nor is there any evidence to support the infer-

ence that the suspect was “armed and dangerous” 43 hours

later.

The circumstances of this case -- including the time lapse

between the alleged assault and defendant’s stop, and the fact

that the officers had not even searched for the suspect at his

own home during the intervening 43 hours, when they de-

cided to stop defendant on the premise that he was a possible

or even probable source of information regarding the sus-

pect’s whereabouts -- clearly do not warrant a “preventative

governmental interest in the stop” (see, dissenting opn., at

762) and do not render the police activity reasonable under

the circumstances.

Beyond the fact that the police were investigating past

criminal conduct here, the dissent also fails to appreciate that

“the Fourth Amendment does not permit the stopping of po-

tential witnesses to the same extent as those suspected of

crimes” (LaFave, Search and Seizure § 9.2[b], at 354 [2d ed]).

In United States v Ward (488 F2d 162), FBI agents, using si-

rens, pulled the defendant over in order to question him pri-

vately concerning some federal fugitives. The court held that

the seizure, which resulted in the agents’ recovering a false

selective service registration card from the defendant, was

unreasonable:

First, there was no crime “afoot.” The FBI agents

did not stop appellant’s car in connection with any

particular crime, but rather the stop was pursuant to

a general criminal investigation that had begun

several months before. There was no emergency

situation nor any need for immediate action. The

FBI was not fearful that the appellant would leave

town. The agents never sought an interview with the

appellant at either his home or place of business al-

though both could have been arranged. In short,

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there were no exigent circumstances warranting the

extreme nature of a vehicular stop by a siren on a

public street.

* * *

Finally, and most significantly, the stop was not

made pursuant to the agent’s founded suspicion that

the detainee was involved or about to be involved in

criminal activity. Rather, the stop was made for the

purpose of questioning the appellant about a third

person. This then was not a“. . . brief stop of a sus-

picious individual [made] in order to determine his

identity or to maintain the status quo momentarily

...” Adams v Williams, 407 U.S. 143, 146 (em-

phasis added), for the appellant was not the object

of the FBI’s suspicions. Clearly, the narrow ex-

ception of Terry v Ohio, * * * which allows

investigative stops on grounds short of probable

cause cannot be stretched so far as to allow deten-

tive stops for generalized criminal inquiries

(Ward, 488 F2d, at 169-170).

Crucial to the holding in Ward, and here also, is the ab-

sence of a crime “afoot.” Similarly, there is no indication here

that the officers reasonably believed the suspect was about to

disappear, thus permitting them to briefly stop defendant in

order to “freeze” an ongoing or dangerous situation and ac-

quire more information in contemplation of further action.

The record is devoid of any indication that the suspect pre-

sented an imminent threat to public safety. Moreover, it

should be noted that when defendant was pulled over, the of-

ficers had been circling the same neighborhood for only 4 or 5

minutes, obviously expecting to find the suspect in the same

vicinity where the complainant had recently observed him;

nevertheless, the officers stopped defendant, because, in Offi-

cer Alonge’s words, “he might possibly know” the suspect’s

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whereabouts, even though they had not even looked in the

same “Jerk Chicken” restaurant where the complainant had

actually and recently spotted the suspect.

In short, under the circumstances of this case, there was no

genuine need for so immediate and intrusive an action as

pulling over the defendant’s freely moving vehicle. When the

government interest in finding and apprehending the suspect

in this case is considered in relation to the effectiveness of the

procedures chosen to promote it, the intrusiveness of pulling

over defendant’s freely moving vehicle cannot be justified

(see Scott, 63 NY2d, at 525, supra). Considered objectively,

the law enforcement benefits that would accrue to the gov-

ernment on these facts by stopping an individual'vehicle on

the ground that its occupants might know the whereabouts of

an individual suspected of past criminal activity is marginal.

Indeed, less intrusive alternatives could have been employed

here.

“The Fourth Amendment requires that a seizure must be

based on specific, objective facts indicating that society’s le-

gitimate interests require the seizure of the particular indi-

vidual, or that the seizure must be carried out pursuant to a

plan embodying explicit, neutral limitations on conduct of the

individual officers” (Brown v Texas, 443 U.S. 47, 51; see

Scott, 63 NY2d, at 525, supra). We need not and do not hold

today that police officers may never stop a vehicle in order to

request information of its occupants. We merely hold that the

specific, objective facts of this case did not justify defendant’s

seizure. The governmental interest at issue in this case must

be considered in context. This case involved: the investigation

of past criminal activity; the stop of a third person not sus-

pected of criminal activity; the absence of exigent circum-

stances justifying immediate police action; the availability of

less intrusive alternatives; and, the candid testimony of the

officers, who considered defendant no more than a possible

source of information.

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IV

Quite apart from the question of intrusion, the instant sei-

zure is also unreasonable when measured in terms of the de-

gree of discretion vested in the officials charged with carrying

it out (see Scott, 63 NY2d, at 525, supra). The act of forcibly

pulling defendant over resulted from the unchecked discretion

of the particular officers involved. It must be kept in mind

that this defendant was not the subject of individualized sus-

picion. In the absence thereof, other safeguards are necessary

to ensure that his reasonable expectation of privacy is not

subject solely to the discretion of the police. In this case, there

were no objective safeguards circumscribing the exercise of

police discretion. The stop of defendant was standardless and

unconstrained. Nor can we accept the People’s urging that the

police officers acted in good faith. Subjective good faith,

standing alone, is not enough.

Our decision in People v John BB. (56 NY2d 482, supra),

also involving a suspicionless stop, does not support a con-

trary result, because other safeguards were present in that

case. We held in John BB. that the Fourth Amendment does

not prohibit the police from employing a roving roadblock in

a sparsely populated area beset by burglaries where vehicles

are stopped pursuant to a “nonarbitrary, nondiscriminatory

and uniform procedure” for the purpose of ascertaining the

identity of the occupants and obtaining information concern-

ing criminal activity in the area (id. at 488).

There are two crucial distinctions between John BB. and

the instant case. First, the level of intrusion on the motorists’

Fourth Amendment rights in John BB. was arguably minimal

given that all motorists were being stopped in an impersonal,

random manner and no individual vehicle was singled out.

The second vital distinction, also arising from the nature of

the procedure utilized, was the elimination of “the element of

arbitrariness”, which we noted had been identified “time and

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again as a critical factor in determining the reasonableness of

official investigative activity of an intrusive nature” (id.). The

nonarbitrary, systematic stopping of vehicles in John BB. in-

sured that the procedures employed by the police did not un-

fold in a manner resting solely upon the officers’ discretion.

Unlike John BB., this case evidences a complete lack of ob-

jective standards circumscribing the exercise of discretion by

the individual officers involved in making the stop. Clearly,

John BB. was improperly relied upon by the court below.

“The exclusionary rule has as an objective the social bene-

fit of deterring unlawful police conduct” (People v Wesley, 73

NY2d 351, 354). The rule’s contours are based in a social

policy judgment which “necessarily entails balancing the cost

of the loss of probative evidence against the gain in deterring

lawless police conduct” (id. at 355). In the circumstances of

this case, when the foreseeable deterrent effect against un-

lawful police conduct is fairly balanced against the adverse

impact of suppression upon the truth-finding process, the

scale tips decidedly in favor of suppression. If the instant stop

were permissible and motorists could in fact be pulled over at

an individual police officer’s discretion based upon the mere

right to request information, a pandora’s box of pretextual

police stops would be opened,

Finally, we fail to discern the logic underlying the Appel-

late Division’s conclusion that “there is a marked and critical

distinction between this case and those in which the person

whose vehicle is stopped is the target of the investigative

questioning” (193 AD2d, at 96). It would be quite an anoma-

lous rule of law if the free movement of persons who are the

targets of investigative questioning could not be interrupted

without reasonable suspicion (see Sobotker, 43 NY2d, at 563-

564; Ingle, 36 NY2d, at 418), but ostensibly law abiding citi-

zens under no suspicion could be pulled over any time the

police had reason to believe they might have information

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relevant to a past crime. The Fourth Amendment does not re-

quire such convoluted jurisprudence.

Accordingly, the order of the Appellate Division should be

reversed, defendant’s motion to suppress the physical evidence

granted, and the indictment dismissed.

LEVINE, J. (Dissenting):

We respectfully dissent. Patrolling in the course of their

investigation of an armed, felonious assault by the victim’s

estranged boyfriend, the police, accompanied by the victim,

encountered defendant in his automobile. The victim assured

them defendant would know the perpetrator’s immediate

whereabouts. The police signaled defendant to stop his mov-

ing vehicle in order to obtain that information from him. The

police did nothing more than activate their car’s turret lights

and horn, and then approach defendant on foot without draw-

ing their weapons. The majority condemns this straightfor-

ward, restrained response to the direct, immediate information

obtained from the victim as an unreasonable seizure in viola-

tion of the defendant’s rights under the Fourth Amendment.

We disagree.

The majority arrives at this result by purporting to apply

the balancing test of People v Scott (63 NY2d 518) and People

v John BB. (56 NY2d 482, cert denied 459 U.S. 1010). Those

cases hold that the validity of an informational vehicular stop

by the police, such as here, on less than individualized sus-

picion of criminal activity of an occupant of the vehicle, is

dependent on its “reasonableness”, to be determined on a

case-by-case basis by balancing the particular intrusion on the

privacy interests of the individual involved against the State’s

legitimate interest in the inquiry (see, People v Scott, supra, at

525; People v John BB., supra, at 487).

In finding the police conduct unreasonable here, the major-

ity’s balancing analysis, in our view, lacks objectivity. It

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denigrates the State’s legitimate interest in likely gaining im-

portant information from defendant, exaggerates the intru-

siveness of the stop on defendant’s privacy interest and

ignores the findings of the lower courts, supported by evi-

dence in the record, that the police conduct “was not arbitrary

[nor] based on mere whim, caprice, or idle curiosity. It was

based on information supplied by the victim of the crime who

knew the perpetrator, Bloomfield; knew the defendant; knew

that the defendant knew Bloomfield, and believed that the de-

fendant would know where Bloomfield was” (193 AD2d 90,

95-96 [emphasis supplied]).

In actuality, there is no balancing by the majority here.

Vehicular stops not based on reasonable suspicion of crimi-

nal activity of an occupant are strictly limited to (1)

“nonpretextual traffic checks to enforce traffic regulations”

(majority opn. at 753); (2) the existence of some undefined

but apparently extreme or absolute exigency for police ac-

tion while engaged in prevention of ongoing criminal activ-

ity (majority opn. at 754-55); and (3) stops pursuant to a

nonarbitrary, nondiscriminatory uniform procedure (major-

ity opn. at 758). A rigid, restrictive code of police conduct

has been applied by the majority here, in spite of our

holding in People v John BB. that “the indefiniteness of the

term ‘unreasonable’ [in the Fourth Amendment] militates

against the construction of a general rule of universal

application for determining the validity of official intrusions

of this nature” (supra, 56 NY2d, at 487).

The evidence at the suppression hearing established that the

complainant first filed her charge against Dion Bloomfield,

her estranged boyfriend, on May 16, 1989, accusing him of

striking her in the mouth with a pistol (breaking a tooth) at

4:00 a.m. that day. According to her testimony at the hearing,

she was instructed by the police to call them if she saw her

assailant. During the evening of May 17, she saw the boy-

friend at a neighborhood restaurant, the “Jerk Chicken.” She

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called the police and it was in response to that call that the

arresting officers picked her up and began circling the neigh-

borhood to look for her assailant, to no avail. However, they

did spot defendant’s car double parked in the vicinity of the

Jerk Chicken. Just as defendant’s car pulled away, according

to the complainant, she informed the officers, “that’s Dion[’s]

friend. [f he’s around, then Dion should be around’

(emphasis supplied). It was this information that was the basis

for the police action in following and then signaling defendant

to stop his vehicle. The hearing court’s undisturbed finding

was: “believing that [defendant] would furnish information as

to [the boyfriend-assailant’s] whereabouts, [the officers] fol-

lowed his car. They activated their turret light and car horn to

stop defendant’s car (emphasis supplied).

The foregoing facts establish the reasonableness of the

limited seizure which occurred here, on any fair application of

the balancing analysis mandated by the Supreme Court and

our own case law. First, the governmental interest in stopping

defendant’s vehicle for information on the assailant’s where-

abouts was substantial. Even if we were to accept the major-

ity’s characterization of that interest as strictly limited to the

“investigation and detection of past criminal conduct”

(majority opn. at 754), undeniably, the past criminal conduct

here was a violent felony, committed only some forty hours

earlier, and the police were entitled to presume that the perpe-

trator remained in illegal possession of the deadly weapon

used against the victim. United States v Hensley (469 U.S.

221), relied upon by the majority to minimize the governmen-

tal interest here, is actually directly instructive on the justifi-

cation for the stop under the uncontested facts just described:

Particularly in the context of felonies or crimes in-

volving a threat to public safety, it is in the public

interest that the crime be solved and the suspect de-

tained as promptly as possible. The law enforce-

ment interests at stake in these circumstances

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outweigh the individual’s interest to be free of a

stop and detention that is no more extensive than

permissible in the investigation of imminent or on-

going crimes (id., at 229).

Moreover, as the Appellate Division recognized, there was

more of a compelling governmental interest here than the

mere detection of past criminal activity. The perpetrator was

an armed and dangerous person. The crime he committed was

not a random street assault, but arose out of a romantic rela-

tionship which had turned hostile and sufficiently perilous to

the victim that her mother caused her to file a criminal com-

plaint. The victim, following instructions from the police

upon her prompt report of the crime the day before, reported

seeing defendant in the neighborhood earlier that evening.

These facts, notably the assailant’s particularized personal

hostility toward the victim and his use and continuing pos-

session of a handgun, readily support a preventative govern-

mental interest in the stop, in addition to the interest in

detecting a past crime. In its repeated assertion that no ongo-

ing crime was “afoot” here (majority opn. at 756; see also id.,

at 754-755, 757-758), the majority pointedly ignores Dion

Bloomfield’s continued criminal possession of a deadly

weapon. This illustrates the flaw in the majority’s application

of the balancing analysis required in a case of this kind.

Moreover, inquiring of defendant just as he left the area

where the victim’s assailant had been seen earlier in the eve-

ning promised more than just the possibility of locating the

assailant at some future time. Since (according to what the

complainant told the police) “if [defendant]’s around, then

{her assailant] should be around”, questioning the defendant

would indeed likely disclose information on the assailant’s then

location, as found by both lower courts here. Thus, a degree of

urgency was present in that the police justifiably believed that

defendant would give them information on the assailant’s

immediate whereabouts. These governmental interests --

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apprehension of a serious felony offender, prevention of

further violence, seizure of an illegal handgun and the ur-

gency of the need to obtain fresh rather than stale information

on the perpetrator’s whereabouts -- far exceeded the substan-

tiality of the governmental interest in conducting the informa-

tional stop in People v John BB. “in the heavily burglarized

area, in order to facilitate the concededly legitimate function

of acquiring information regarding the recent burglaries” (56

NY2d 482, 488, supra).

The degree of intrusion on defendant’s privacy interest was

not high here. The stop occurred well after nightfall. The acti-

vation of turret lights and use of the patrol car’s horn would

appear to have been the least threatening way effectively to

signal defendant to stop his vehicle, an inference confirmed

by the hearing court’s finding that defendant travelled an ad-

ditional block thereafter before bringing his vehicle to a halt.

The officers approached defendant’s vehicle without drawing

their service revolvers. They did not issue any direct order to

defendant not to resume moving (cf, People v May, 81 NY2d

725). Nor did the seizure here begin to approach the level of

intensity of that in People v John BB. (supra) where, as re-

ported in the decision at the Appellate Division, the defen-

dant’s vehicle was surrounded by three troop cars at the side,

front and rear (see, People v John BB., 81 AD2d 188, 189).

Given the urgency of gathering fresh information on the

violent felon’s then whereabouts as previously described, the

record fully supports the suppression court’s undisturbed

finding that “unlike other cases where means less intrusive

than a stop, such as continued observation, are available to the

police in furtherance of an investigation [citations omitted],

here the police officers had no alternative to the stop.” The

majority’s finding to the contrary, that some unspecified less

intrusive procedures were available to the police to attain their

objective (majority opn. at 757), is not only beyond our

powers in reviewing the findings of the lower courts, but in

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our view is singularly inappropriate hindsight regulation of

police conduct by appellate judges far removed from the re-

alities of dynamic street situations that the police confront as

events unfold (see, People v De Bour, 40 NY2d 210, 225).

Finally, in determining, contrary to the findings of the

courts below, that the informational stop here was arbitrary

and the result of “the unchecked discretion” (majority opn. at

758) of the police and, thus, was unreasonable, the majority

not only once more exceeds this Court’s factfinding powers

but also commits an error of law. According to the majority,

vehicular stops not based upon reasonable suspicion of an

occupant’s criminal activity are arbitrary and the result of the

exercise of unconstrained discretion unless an extreme, im-

mediate exigency exists to prevent a crime in process or the

stop is pursuant to a nonarbitrary, nondiscriminatory uniform

procedure of stopping vehicles for a legitimate informational

purpose. There is no authority whatsoever which would sup-

port the majority’s position that such an absolute exigency is

a sine qua non for the validity of an informational vehicular

stop, rather than just one of many factors to be considered in

assessing the weight of the governmental interest served by

the stop in the balancing process mandated by the decisions of

our Court and the Supreme Court.

Likewise, neither our decisions nor those of the Supreme

Court condemn as arbitrary and wholly discretionary all in-

formational stops unless made pursuant to a uniform, stan-

dardized procedure, such as a border or DWI checkpoint.

Indeed, the Supreme Court’s holding in Brown v Texas (443

U.S. 47, 51) instructs otherwise:

A central concern in balancing these competing

considerations in a variety of settings has been to

assure that an individual’s reasonable expectation of

privacy is not subject to arbitrary invasions solely at

the unfettered discretion of officers in the field

A-18

[citations omitted]. To this end, the Fourth Amend-

ment requires that a seizure must be based on spe-

cific, objective facts indicating that society’s

legitimate interests require the seizure of the par-

ticular individual, or that the seizure must be car-

ried out pursuant to a plan embodying explicit,

neutral limitations on the conduct of the individual

officers (emphasis supplied).

In the instant case, the record clearly demonstrates the exist-

ence of “specific, objective facts” justifying the police proce-

dure employed to stop defendant, namely, (1) the police had

probable cause to believe that the complainant’s former boy-

friend-assailant had committed a felonious assault, was armed

and potentially dangerous; and (2) the police had direct in-

formation from someone having personal knowledge of the

facts that defendant would likely be capable of disclosing the

assailant’s then whereabouts. Thus, far from being based on

pure whim or caprice, the reliable information possessed by

the police actually furnished them with a completely objective

(not subjective) justification for the stop, i.e., the likelihood

on the basis of independent information that questioning de-

fendant at that time would lead to the prompt arrest of the

complainant’s dangerous assailant. This is in total contrast to

the stop in People v May (81 NY2d 726), relied upon by the

majority, where the only objective facts the police had to sus-

pect anything were that the defendant and his female com-

panion were parked at night in a high crime neighborhood and

pulled away when the police approached. Moreover, the spe-

cific, objective factual justification for the stop of defendant

here is far greater than merely “some articulable basis”

(majority opn. at 753, 754), the majority’s mischaracterization

of the standard we have applied for this informational vehic-

ular stop.

On the basis of the foregoing, the Appellate Division cor-

rectly found that the stopping of defendant’s vehicle was not

A-19

arbitrary or based on whim or caprice. Rather, the police action

here fully conipiied with the requirement of reasonableness

articulated in Delaware v Prouse (440 U.S. 648, 654) “that the

facts upon which an intrusion is based be capable of measure-

ment against ‘an objective standard,’ whether this be probable

cause or a less stringent test.” The majority’s fear here is abso-

lutely unjustified that upholding this measured, entirely rea-

sonable and commendably decisive response to the direct,

immediate information given by a victim of a violent assault,

will somehow open “a pandora’s box of pretextual police

[informational] stops” (majority opn. at 759). As this case dem-

onstrates, the objective, factual basis for an informational stop

is fully capable of assessment in order to insure that the police

are not acting from pure whim or caprice, no less than in the

case of an investigative stop of a vehicle whose occupants are

suspected of criminal activity. The majority’s prophylactic

restriction on completely reasonable and responsible police

conduct here ironically grants elevated Fourth Amendment

protection to occupants of a moving vehicle in which a citizen

is traditionally held to have a diminished expectation of privacy

(see, People v Scott, 63 NY2d 518, 525, supra; United States v

Martinez-Fuerte, 428 U.S. 543, 561).

After legally stopping defendant’s vehicle, the police were

justified in using flashlights to illuminate the interior to insure

their own safety, to seize the bag of marijuana they saw in

plain view and then to place defendant under arrest.

Accordingly, we vote to affirm the order of the Appellate

Division.

Order reversed, defendant’s motion to suppress physical evi-

dence granted and indictment dismissed. Opinion by Judge

Ciparick. Chief Judge Kaye and Judges Titone and Smith

concur. Judge Levine dissents and votes to affirm in an

opinion in which Judges Simons and Bellacosa concur.

Decided January 17, 1995.

A-20

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v

CLIVE SPENCER, Appellant.

Second Department, October 4, 1993

SUMMARY

APPEAL from a judgment of the Supreme Court (Melvin

Barasch, J.), rendered January 31, 1991 in Kings County,

upon a jury verdict convicting defendant of criminal posses-

sion of a weapon in the third degree and criminal possession

of marihuana in the fourth degree. The appeal brings up for

review the denial, after a hearing (Albert D. Tomei, J.), of that

branch of defendant’s omnibus motion which was to suppress

physical evidence.

APPEARANCES OF COUNSEL

Jay H. Schwitzman, Brooklyn, for appellant.

Charles J. Hynes, District Attorney of Kings County, Brook-

lyn (Roseann B. MacKechnie, Anthea H. Bruffee and Bruce D.

Austern of counsel), for respondent.

OPINION OF THE COURT

SULLIVAN, J. P.

At issue here is when may the police stop a vehicle in order

to request information.

On May 17, 1989, Kalima Alamin telephoned police re-

garding an alleged assault which she had previously suffered

at the hands of her boyfriend, Dion Bloomfield, who had pur-

portedly struck her in the mouth with a gun. At approximately

11:20 P.M. that night, two police officers in a patrol car picked

up Alamin and drove her through a neighborhood frequented

by Bloomfield in an attempt to find him. During their patrol,

Alamin recognized and pointed out a vehicle belonging to the

defendant. She informed the officers that the defendant was a

f/f)

se PEEK A TRAIAN SEMIN LPM LTE RES RL O I ESB

A-21

friend of Bloomfield and might know where he was.

Accordingly, as found by the hearing court, the officers

activated the turret lights of their patrol car and engaged their

horn to pull the defendant’s vehicle over. To ensure their

safety, the officers approached the defendant’s automobile

from either side with their flashlights lit. Their guns were hol-

stered, and they intended only to inquire of the defendant as to

his knowledge regarding the whereabouts of Bloomfield.

However, upon reaching the car, and with the flashlights illu-

minating the interior of the vehicle, one of the officers im-

mediately observed a large clear plastic bag on the floor of the

front passenger seat. The bag contained brown and green

vegetable matter which the officer believed to be marihuana.

He thereupon ordered the defendant and his female passenger

out of the car. As the defendant alighted from the vehicle, the

officer noticed the butt of a handgun protruding from under

the driver’s seat. The officer removed the weapon and the

marihuana from the vehicle, and the defendant was placed

under arrest after indicating that his female passenger had no

connection to the items retrieved from the car.

It is the defendant’s contention that the police action in or-

dering him to stop his vehicle constituted a seizure that was

impermissible when measured by constitutional standards, and

that this tainted the subsequent discovery and seizure of the

marihuana and the handgun. The defendant relies on a narrow

reading of certain portions of People v Ingle (36 NY2d 413),

People v Sobotker (43 NY2d 559), and People v Corcoran (89

AD2d 696) to establish a bright line rule that would forbid the

police from stopping an automobile driven by an identified and

acknowledged friend of a suspect for the purpose of asking the

driver if he knows the whereabouts of the suspect. We believe

that this reliance is misplaced and that under the circumstances

of this case, the police action in stopping the defendant’s

automobile was not a violation of his constitutional or

common-law rights. We therefore affirm the conviction.

A-22

In one of the seminal cases in this area (People v Cantor,

36 NY2d 106, 112), it was said: “Street encounters between

the patrolman and the average citizen bring into play the most

subtle aspects of our constitutional guarantees. While the

police should be accorded great latitude in dealing with those

situations with which they are confronted it should not be at

the expense of our most cherished and fundamental rights. To

tolerate an abuse of the power to seize or arrest would be to

abandon the law-abiding citizen to the police officer’s whim

or caprice—and this we must not do”.

This concept was further refined and clarified in People v

De Bour (40 NY2d 210). In De Bour, the defendant con-

tended that, by stopping him as he was walking on the street

at 12:15 A.M. and asking him what he was doing there and for

identification, the police officers seized him within the

meaning of the Fourth Amendment. Such a reading of Cantor

was rejected. The Court of Appeals distinguished the conduct

of the police in Cantor (three plainclothes officers surrounded

the defendant with revolvers drawn and blocked his vehicle

with their own) and People v Ingle (supra, at 418 [officers

‘accosted’ ” and “ ‘restrained’ ” a motorist for a “ ‘routine traf-

fic check’ ” without any articulable reason]) from that in De

Bour (the defendant was approached and questioned by two

uniformed officers whose conduct bespoke no violent or

forcible apprehension). The Court found that “[c]learly then,

De Bour was not seized in the sense that Cantor and Ingle

were” (People v De Bour, supra, at 217).

Even though the officers in De Bour had no articulable rea-

sons that would justify his arrest or seizure, that did not pre-

vent the officers from initiating an encounter with him, as

long as the officers’ conduct was not arbitrary or the product

of a whim, and was reasonable: “The crucial factor is whether

or not the police behavior can be characterized as reasonable

which, in terms of accepted standards, requires a balancing of

the interests involved in the police inquiry” (People v De

Bour, supra, at 217).

A-23

Following a discussion of the companion case of People v

La Pene (40 NY2d 210), the Court stated: “In evaluating the

police action we must consider whether or not it was justified

in its inception and whether or not it was reasonably related

in scope to the circumstances which rendered its initiation

permissible (People v Cantor, 36 NY2d 106, 111)” (People v

De Bour, supra, at 222-223 [emphasis added]).

The Court of Appeals then set forth its now familiar four-

tiered analysis of justifiable police conduct in street encoun-

ters. The minimal intrusion of approaching to request infor-

mation is permissible when there is some objective credible

reason for that interference not necessarily indicative of crim-

inality. This is designed to prohibit police conduct that is

purely arbitrary, based on a whim or hunch and not “reason-

able”, i.e., founded on reason.

The nature of the information that the police may seek un-

der this first tier may be identification, destination, or reason

for being in the area, that is sought in a brief, non-threatening

encounter (People v Hollman, 79 NY2d 181, 190, 191). If and

when the police questioning becomes extended, accusatory,

and focuses upon the possible criminality of the person ques-

tioned, it has risen to the level of common-law inquiry that

must be supported by founded suspicion that criminality is

afoot (People v De Bour, supra, at 223; People v Hollman,

supra, at 191-192).

There is no question but that the police officers in the case

before us were operating on the first tier of activity as set

forth in De Bour and Hollman, i.e., an approach to the defen-

dant with a request for information based on an objective

credible reason for that information. The officers were look-

ing for Dion Bloomfield to arrest him for the felonious assault

on Kalima Alamin. Ms. Alamin pointed out the defendant and

told them he might know where Bloomfield was. This right to

request information to enable police officers to perform their

A-24

law enforcement duties will “hinge on the manner and inten-

sity of the interference, the gravity of the crime involved and

the circumstances attending the encounter” (People v De

Bour, supra, at 219). In this case the information sought, the

whereabouts of Bloomfield, would not adversely impact

Spencer. It was not intended to harass Spencer, nor was it

based on a whim or arbitrary decision of the officers. Ms.

Alamin, the victim and former girlfriend of Bloomfield, told

the officers that Spencer was a friend of Bloomfield and

might know where he was. Since the officers had probable

cause to arrest Bloomfield for a felony, they clearly had a

valid reason for approaching Spencer with this inquiry.

While the defendant implicitly concedes that the officers

would nave had the right to seek this information from him if

he was a pedestrian (see, People v De Bour, 40 NY2d 210,

supra; People v Hollman 79 NY2d 181, supra), he contends

that stopping his vehicle was a seizure subject to constitu-

tional limitations (People v Ingle, 36 NY2d 413, 418, supra;

People v Sobotker, 43 NY2d 559, 563, supra), and that such

seizures are only permitted under the third tier of the De Bour

analysis, that is, a forcible stop and detention of a person

which is authorized only when the officer has reasonable

suspicion that the person has committed, is committing or is

about to commit a felony or misdemeanor (CPL 140.50 [1];

People v De Bour, supra, at 223). If the officer reasonably

suspects his life is in danger, he may frisk the persons so de-

tained (CPL 140.50 [3]). According to the defendant’s conten-

tion, the only other permissible stop of an automobile is for a

routine check to enforce automobile regulations (People v

Corcoran, 89 AD2d 696, supra). This is an unduly restrictive

interpretation of the precedents and does not accurately reflect

the law.

In People v John BB. (56 NY2d 482, cert denied, 459 US

1010), the Court of Appeals examined a situation where

police were stopping and questioning al! persons found on

if 5

If Sou Bf Rr per Mote

A-25

foot or in vehicles in a sparsely populated area that had been

subject to a high number of burglaries. While recognizing that

the stop of the automobile in which the defendant was riding

was a limited seizure subject to constitutional limitations, the

Court noted that the essential question is whether the stop of

the vehicle and its occupants was an unreasonable seizure

prohibited by the Constitution. “While this proscription gen-

erally forbids any unwarranted intrusion into the private af-

fairs or conduct of any individual, we have noted that there is

no absolute right to be free from all official inquisitorial inter-

ference however minimally intrusive” (People v John BB.,

supra, at 487; see also, People v De Bour, 40 NY2d 210,

supra). At the same time, the Court refused to establish any

bright line rule, insisting on a case-by-case examination of the

reasonableness of the police conduct. This determination of

reasonableness is to be based on a balancing of the State’s

interest in the inquiry with the interest of the individual in

being free from governmental interference. Most importantly

for our consideration herein, the Court stated: “But this does

not mean that the broad range of factors relevant for the pur-

pose of constitutional examination can never be analyzed in a

manner which leads to the ultimate conclusion that the State

may stop an automobile and question the occupants for

legitimate reasons” (People v John BB., supra, at 487-488).

In affirming the denial of suppression, the Court of Appeals

found that the nonarbitrary, nondiscriminatory, and uniform

procedure utilized to stop vehicles was reasonable to obtain

information concerning the recent burglaries. The Court fur-

ther pointed out that, while not controlling, the absence of

arbitrariness is a critical factor in determining the reasonable-

ness of official investigative activity of an intrusive nature.

Also to be considered was the fact that the stop of the subject

vehicle was not undertaken with an intent to harass and was

based on much more than whim, caprice, or idle curiosity

(People v John BB., supra, at 488).

A-26

The application of the principles enunciated in People v

John BB. (supra) to the facts of the case before us would

indicate that the actions of the officers in stopping the defen-

dant’s vehicle were, under all of the circumstances, reason-

able and proper. The information sought by the police, the

whereabouts of the suspected felon Bloomfield, was properly

within their law enforcement duties (see, People v Hollman,

supra, at 189) and formed a legitimate basis for questioning

the defendant (see, People v John BB., supra, at 488). Sin-

gling out the defendant for stop and questioning was not the

result of a uniform procedure as was that of the officers in

John BB., but in light of the information they had, there was

no need for a broad net approach. Clearly, the stop and ques-

tioning of the defendant was not arbitrary. It was not based on

mere whim, caprice, or idle curiosity. It was based on infor-

mation supplied by the victim of the crime who knew the per-

petrator, Bloomfield; knew the defendant; knew that the

defendant knew Bloomfield, and believed that the defendant

would know where Bloomfield was. It was proper and legiti-

mate investigative technique for the officers to seek to ques-

tion the defendant regarding Bloomfield’s whereabouts.

Given the nature of the crimes involved, felonious assault and

criminal possession of a weapon, the State’s interest in learn-

ing of Bloomfield’s whereabouts so as to effect an arrest more

than counterbalanced the defendant’s interest in being free

from governmental interference.

There is a marked and critical distinction between this case

and those in which the person whose vehicle is stopped is the

target of the investigative questioning (see, People v John

BB., supra, at 489; People v Sobotker, supra; People v Ingle,

supra; People v Harrison, 57 NY2d 470; People v May, 81

NY2d 725; People v Voliton, 190 AD2d 764). Such a situa-

tion implicates the third tier of the De Bour analysis and

requires reasonable suspicion to justify a vehicle stop. We are

dealing in this case, as we stated earlier, with a simple request

for information, the first tier of the De Bour analysis, which is

A-27

governed by the standards set forth in People v John BB.

(supra; see also, People v Holstein, 154 AD2d 905).

Furthermore, the use of flashlights by the officers to illumi-

nate the interior of the vehicle did not constitute an unreason-

able intrusion, and the officers were entitled to seize the

weapon and marihuana which were in plain view (see, People

v Baldanza, 138 AD2d 722; People v Robinson, 115 AD2d

411).

Accordingly, the judgment appealed from is affirmed.

EIBER, PIZZUTO and Joy, JJ., concur.

Ordered that the judgment is affirmed.

A-28

MEMORANDUM

SUPREME COURT KINGS COUNTY

PEOPLE OF THE STATE _) (CRIMINAL TERM, PART 31)

OF NEW YORK By TOMEI, J.

Dated October 9, 1990

Indictment No. 6901/89

VS.

CLIVE SPENCER

i a

Clive Spencer, charged with criminal possession of a

weapon in the third degree and criminal possession of mari-

juana in the fourth degree, moves to suppress the physical

evidence which forms the basis of the charges, on the ground

that its seizure violated his constitutional rights. The court

conducted a Mapp/Dunaway hearing on September 14 and 17,

1990. Testifying for the People were Police Officers Edward

Alonge and Donald Concecao, both of the 67th precinct. Tes-

tifying for the defendant was Ms. Kalima Alamin. Based on

the testimony adduced at the hearing, the court makes the

following findings of fact and conclusions of law.

Findings of Fact

In the evening of May 17, 1989, Edward Alonge, a police

officer with five years’ experience, and Donald Concecao, a

police officer with over six years’ experience, were on routine

patrol in a marked radio car. The officers received a radio re-

port to the effect that the day before a female had been as-

saulted with a gun by her former boyfriend, Dion Bloomfield.

At approximately 11:20 p.m. the officers picked up the 19-

year-old complainant, Ms. Alamin, at Nostrand Avenue and

Linden Boulevard. They proceeded to drive around the vicin-

ity searching for Mr. Bloomfield. As they drove past the

Turntable Lounge located on Rogers Avenue between

Martense Street and Linden Boulevard, Ms. Alamin remarked

that a man, defendant herein, who was seated behind the

/

A-29

wheel of a double-parked car, was a friend of Mr. Bloomfield

and that Mr. Bloomfield might be close by. By this time de-

fendant’s vehicle had started down Rogers Avenue and turned

left onto Linden Boulevard. Believing that Mr. Spencer would

furnish information as to Bloomfield’s whereabouts, Alonge

and Concecao followed his car. They activated their turret

light and car horn to stop defendant’s car. One block later, on

the corner of Bedford Avenue and Linden Boulevard, defen-

dant brought his vehicle to a halt. Although Ms. Alamin asked

the officers not to involve Mr. Spencer for fear of retribution,

the officers persisted; they advised Ms. Alamin to conceal

herself by crouching down out of sight in the rear of the patrol

car.

Officer Alonge approached defendant’s vehicle on the

driver’s side while Officer Concecao proceeded to the pas-

senger’s side. Neither had their weapons drawn but both car-

ried flashlights for safety reasons. As they neared, they

noticed a female sitting next to defendant. The officers shone

their flashlight around the interior of the vehicle. When the

floor of the automobile beneath the front passenger seat was

illuminated, they observed a clear plastic bag containing a

large amount of greenish brown vegetable matter that ap-

peared to be marijuana, at the feet of the female passenger.

Upon discovering the plastic bag, Officer Alonge asked Mr.

Spencer and the female to exit the vehicle and step to the rear.

As defendant informed them that the female had nothing to do

with the alleged marijuana, the officers allowed her to leave.

Once Mr. Spencer was out of the vehicle Officer Alonge

observed the butt of a revolver on the floor of the car protrud-

ing from beneath the driver’s seat. The gun was loaded with

five rounds. The officers placed defendant in custody and,

after a back-up unit arrived, transported him to the 67th

precinct.

A-30

Conclusions of Law

On this Mapp/Dunaway hearing the defendant has the bur-

den of proving the illegality of the search by a preponderance

of the evidence. (People v Berrios, 28 NY2d 361.) The People

have the burden of going forward to show the legality of the

police conduct. (People v Malinsky, 15 NY2d 86.) To deter-

mine whether the People have met their burden the court

“must consider whether or not the police action was justified

at its inception and whether or not it was reasonably related in

scope to the circumstance which rendered its initiation per-

missible.” (People v DeBour & La Pene, 40 NY2d 210, 222.)

In People v DeBour, supra, the Court of Appeals recog-

nized that even in the absence of any indication of criminal

activity the police may approach a private citizen for the pur-

pose of requesting information, provided there is some objec-

tive credible reason for the interference. The facts which were

elicited at the hearing establish that the information possessed

by the police at the initiation of their encounter with defen-

dant justified only this minimal degree of interference: the

officers could recall no information that would suggest

wrongdoing by defendant. Their only purpose in approaching

Spencer was to locate Dion Bloomfield. However, this pur-

pose constituted an “articulable reason” to approach defen-

dant, since the police were obligated as part of their law

enforcement duties to investigate Alamin’s complaint.

Having concluded that the police could legitimately ap-

proach defendant, the court must next consider whether the

ensuing stop of defendant’s automobile was reasonably re-

lated in scope to the circumstance which rendered its initia-

tion permissible.

Ordinarily, the police are not authorized to stop a vehicle

moving on the highway in the absence of circumstances sug-

gesting criminality on the part of the occupants. (People v

Sobotker, 43 NY2d 559.) However, in the matter at bar, at the

A-31

time the police resolved to exercise their right to request in-

formation, defendant’s vehicle was in motion. Under these

circumstances, common sense demands that they be permitted

to stop it.

In this regard the stop at bar is similar to the stop in People

v DeBour, supra, where the police approached defendant, who

was walking, to request information even though they had no

indication of criminal activity on his part. Rejecting defen-

dant’s argument that he was seized because he was caused to

stand still, the Court of Appeals found the police conduct to

be reasonable because it was devoid of harassment or intimi-

dation, lasted only a few minutes and did not subject defen-

dant to a loss of dignity. Unlike other cases where means less

intrusive than a stop, such as continued observation, are avail-

able to the police in furtherance of an investigation, (see, for

example, People v Giles, 137 AD2d [1st Dept 1988]; People v

Ferraciano, 135 AD2d 49 [2d Dept 1987]), here the police

officers had no alternative to the stop. Like the officers in

DeBour, the officers employed no display of force in their

approach.

Since the police officers could legitimately approach de-

fendant’s vehicle, their use of the flashlight to illuminate the

interior of the car does not constitute an unreasonable intru-

sion. (People v Baldanza, 138 AD2d 722, lv denied 72 NY2d

856.) “... Shining a flashlight to illuminate what would have

been in plain view in daylight did not involve an unreasonable

intrusion.” (People v Robinson, 115 AD2d 411, 413 [lst Dept

1985]). Accordingly, the marijuana which became visible

once the area beneath the woman’s feet was lighted, was

properly seized.

Beginning with the events following the officers’ approach

to defendant’s car, the testimony of the police officers and the

testimony of defense witness Kalima Alamin diverged

sharply. The court found several weaknesses in the testimony

¥. +) <*

PRES, Fe pe etem, fe ye &

ix pa ATE LE AE ATED aed ge a aa

iia ae BC MEN aD Oe a ga Niet hs So ay ey ie

A-32

of the police officers, most notably their failure to reveal at

any time prior to the hearing the statement allegedly made by

the defendant at the time the marijuana was recovered, to the

effect that his female companion was not responsible for the

drugs. However, Ms. Alamin’s testimony was even more

troublesome. She testified that she implored the police offi-

cers not to involve Mr. Spencer because she was afraid that he

would “get her” if she got the cops on him. She also testified

on cross-examination that defendant telephoned her and asked

her to come and testify on her behalf. These facts strongly

suggest that Ms. Alamin was intimidated by defendant and

that her testimony was influenced accordingly. Further, Ms.

Alamin was not accurate in certain portions of her testimony.

For example, she placed defendant’s arrest at approximately

8:00 in the evening on May 17, 1989. Finally, according to

her testimony, Ms. Alamin made her observations while

ducking down in the rear seat of the patrol car. Although she

testified that her head was facing toward the back window and

that she was slanted down into the seat, she insisted that she

could see everything that occurred through the front window

of the police car. Due to these problems which bear directly

on Ms. Alamin’s credibility the court generally credited the

police officers’ version of the facts.

When the police officers discovered the marijuana in the

car, they had probable cause to arrest defendant and, conse-

quently, could lawfully order him out of the automobile.

(Pennsylvania v Mimms, 434 US 106, 110.) Since, once de-

fendant was out of the car the weapon appeared in plain view,

it too was lawfully seized.

Given that the police action was reasonably related at every

Stage to the degree of knowledge and credible belief pos-

sessed by the police officers, the court concludes that the de-

fendant has failed to sustain his burden of proof on the

hearing. Therefore, the motion to suppress is denied.

A-33

The foregoing constitutes the decision and order of the

court.

/s/ Tomei

J.S.C.