People v. Santiago , 409 N.Y.S.2d 716 ( 1978 )

OPINION OF THE COURT

Sullivan, J.

This case brings before us once again the nettlesome problem of determining the limits of permissible police conduct in a street encounter.

At 9:30 p.m. on December 15, 1972 two police officers on duty in an anticrime assignment observed defendant Santiago standing alone on the corner of East 81st Street and Third Avenue. It was raining and the temperature was in the 30’s.^* Santiago appeared to the officers to be watching customers coming in and out of a liquor store. The store was located about 10 feet away from where Santiago was standing. As the officers kept a surveillance on Santiago they saw him engage in a one or two minute conversation with a man who had approached him, and then walked away. One of the officers followed the man for half a block and then returned to 81st Street.

The officers’ surveillance lasted for about 20 minutes. For all but about five minutes Santiago remained standing on the corner. The only time he left was when he walked north one block to 82nd Street and Third Avenue. From that vantage point the liquor store would apparently be out of view, since it was on 81st Street. Santiago remained briefly at the corner of 82nd Street, perhaps five minutes, after which he returned to 81st Street and Third Avenue, where he entered a phone booth.

Acting on the belief that Santiago was "casing” the liquor store or its patrons the officers then approached the booth. Santiago was holding the telephone receiver in one hand. His other hand was in his right coat pocket. The officers identified themselves. One of them displayed his shield. Santiago was ordered to take his hand out of his pocket, but he remained in the same position, with the phone still to his ear. A second order was not given.

Contradiction in the officers’ testimony develops at this juncture. One officer testified that he "patted” Santiago’s coat below the pocket and by the thigh. When he felt something "harder than the hand” the officer grabbed the coat, slid his hand down to Santiago’s waist, and pulled the coat open, revealing a sawed-off rifle.

The second officer testified that he grabbed Santiago’s arm. When this officer attempted to pull the arm out of the pocket, the bottom of Santiago’s coat moved, at which time his partner shouted that there was something under the coat.

Neither officer testified that he feared for his physical safety, nor that he noticed any bulge in Santiago’s clothing before patting him down, or grabbing his arm, as the case may be. The rifle was seized.

After being placed under arrest and given the Miranda warnings, Santiago, according to the officers, said that he "was there to rip off the broad in a white car, or white broad in a car, for two keys.” This statement was repeated again later at the precinct.

On the basis of these facts, Trial Term denied the motion to suppress the rifle along with Santiago’s statements made subsequent to his arrest because: "The formation of suspicion must be based entirely on totally objective criteria. The element of experience of the person who is making the judgment must be an element and based upon that, I find it to have been sufficient to have committed what I would characterize as stop and frisk in the circumstances.”

After his motion to suppress was denied, Santiago pleaded guilty to attempted possession of a weapon as a felony (Penal Law, former §§ 110.00, 265.05) and was sentenced thereupon to probation. "[A] police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information” if he has "some articulable reason sufficient to justify the * * * action”. (People v De Bour, 40 NY2d 210, 213.) "The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made”. (De Bour, supra, p 213.) The stop must not be "the product of mere whim, caprice or idle curiosity.” (People v Ingle, 36 NY2d 413, 420.)

In People v La Pene (40 NY2d 210), a companion case of People v De Bour (supra), the Court of Appeals enunciated a sliding scale of justifiable police intrusion, short of probable cause to arrest, which correlated the allowable intensity of police conduct to the nature and weight of the facts precipitating intrusion. The court specified three distinct levels of intrusion. The first level, already discussed, is the right to approach for the purpose of requesting information. The second, and more intense level of intrusion is the police officer’s common-law right to inquire. This stage "is activated by a founded suspicion that criminal activity is afoot” (People v De Bour, 40 NY2d 210, 223, supra) and carries with it the right to interfere with a citizen to the extent necessary, short of a forcible seizure, to obtain an explanation. (People v De Bour, supra, p 223; People v Cantor, 36 NY2d 106, 114.) The third level, sanctioned in People v La Pene (supra), encompasses the statutory right provided by CPL 140.50 (subd 1) authorizing a forcible stop and detention of a person when a police officer entertains a reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. As a corollary to the statutory right to detain, an officer also has the statutory authority to frisk if he reasonably suspects himself to be physically endangered. (CPL 140.50, subd 3.)

In order to determine the legality of the police officers’ conduct we must first consider whether their action was justified in its inception, and then whether their conduct was reasonably related in scope to the circumstances which rendered its initiation permissible. (See People v Cantor, supra, p 111; People v De Bour, supra, p 222.)

Of course, while a suspicion of criminal activity is not necessary to justify the stop of a citizen by a police officer—he may approach to request information if he has an articulable reason to justify such action—justification for the police officers’ action here is not sought on the basis of a request for information but rather on the ground of reasonable suspicion that Santiago was about to commit a robbery. Thus, the reasonableness of their actions must be judged not by whether they can articulate a reason for their approach, but rather by whether they can demonstrate a foundation for their suspicion that criminal activity was afoot. Such a belief, if warranted, would activate, at the least, the second level of justifiable intrusion, the right to detain, to the extent necessary to obtain explanatory information.

In testing the bona ñdes of "a founded suspicion” of criminal activity, it should be borne in mind that "[m]ere 'hunch’ or 'gut reaction’ will not do.” (People v Sobotker, 43 NY2d 559, 564.) It has been held that a sincere, good faith belief by police officers that a crime is about to be committed, without objective evidence of criminal activity, is insufficient to support the reasonable suspicion standard. (Terry v Ohio, 392 US 1, 22; People v Sobotker, supra, p 564; People v Cantor, 36 NY2d 106, 113, supra.)

Viewed objectively, even from the perspective of a street-wise police officer, Santiago’s behavior, at the time the officers confronted him at the phone booth, had been, to say the least, innocuous and was, at worst, equivocal. While it may undoubtedly be argued that his conduct was not inconsistent with the possibility that he was indeed "casing” the liquor store, it was equally plausible that he was waiting for someone. Whatever curiosity or suspicion Santiago’s actions might have aroused was hardly heightened by his entry into the telephone booth. We are asked to interpret this as the call to a confederate. It could also be the innocent reaction of a person who, impatient with the tardiness of a friend, was calling to ascertain that person’s whereabouts.

We conclude, therefore, that Santiago’s conduct could not generate a founded suspicion that a crime was at hand. (People v De Bour, 40 NY2d 210, 216, supra.) Not only was each of his earlier acts consistent with innocent behavior, but we find that the entire sequence was devoid of any element of objective evidence to justify the officers’ suspicions. (For instance, there was no anonymous telephone call alerting the police to a planned robbery.)

Even assuming, arguendo, that the officers were acting on more than mere hunch, their subsequent actions were constitutionally impermissible. The legality of the initial stop does not justify every subsequent police act if, as noted earlier, the extent of the intrusion is not "reasonably related in scope to the circumstances which rendered its initiation permissible.” (People v Cantor, 36 NY2d 106, 111, supra.)

Since the common-law right to inquire does not permit seizures, but only entitles the police to ask questions, the police action here must find statutory support or be deemed unlawful. (People v De Bour, supra, p 223; People v Cantor, supra, p 111.) Under CPL 140.50 (subd 1), a reasonable suspicion of criminal activity only permits a police officer to demand a person’s name, address and an explanation of his conduct. A search is not authorized unless the officer "reasonably suspects” that he is in danger of physical harm. (CPL 140.50, subd 3.)

Before an officer "places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (People v Sibron, 392 US 40, 64; People v Stewart, 41 NY2d 65, 69; see, also, People v Sterling, 63 AD2d 210.) Here, neither officer testified that he feared Santiago was armed or dangerous. Nor do the facts suggest that such a belief would have been reasonable under the circumstances. Indeed, our courts have held that the mere placement of one’s hand in one’s pocket does not create a suspicion that an indivdual is armed. (People v Prachilo, 41 NY2d 759, 762-763; see, also, People v Batino, 48 AD2d 619.) Neither officer felt compelled to place his hands on his gun for protection. The officers simply approached Santiago, ordered him to take his hand out of his pocket, and, when he failed to respond, seized his arm and frisked him. The order was never repeated; no further inquiries were made. It may well be that Santiago, still engaged in a telephone conversation, did not hear the officers’ order. In such circumstances, the seizure cannot be defended, either under statute or case law.

Though their suppression is not essential to the ultimate disposition, Santiago’s postarrest statements, preceded by the Miranda warnings, were rendered constitutionally infirm by the illegality of the seizure and arrest. (Brown v Illinois, 422 US 590; People v Stewart, 41 NY2d 65, supra.) The fruits of an unconstitutional search should be suppressed.

Accordingly, the judgment of Supreme Court, New York County (Rosenberger, J.), rendered November 5, 1975, convicting defendant of attempted possession of a weapon, should be reversed, on the law, the motion to suppress granted, the plea vacated, and the indictment dismissed.

* There was no testimony in the proceedings below about weather conditions on the night in question. We are asked to and do take judicial notice of the weather. (See Hunter v New York, Ontario & Western R. R. Co., 116 NY 615.)