People v. Dinkins

Silverman, J. (concurring).

I concur on the authority of the Court of Appeals decision in People v Elwell (50 NY2d 231).

However, the broad language of that opinion still leaves me with disturbing questions as to its applicability and effect in the specific exigent fact situation involved in this case.

We have here a telephone report to the police that there is a shotgun in a particular described car in a particular location. The police arrive there and see defendant walking briskly away from the car which is thus left unlocked and unattended. One officer frisks defendant; the other opens the unlocked door of the car and sees a sawed-off shotgun between the seat and the door. The critical question becomes whether the action of the police officer in opening the unlocked door of the car was such an unreasonable invasion of the defendant’s right to be left alone that we should suppress the gun and dismiss the indictment. In People v La Pene (40 NY2d 210, 222-223) the Court of Appeals said: "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). We bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence. * * * Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd 1; see Terry v Ohio, 392 US 1; People v Cantor, supra).”

No doubt there are areas in this State where possession of a shotgun is not a cause for suspicion. In New York City, a shotgun—particularly a sawed-off shotgun, as it turned out to be—is a grave and frightening omen of extremely illegal conduct; almost its only use is in the commission of crime. Here the officers are told that there is a shotgun in the car in one of New York’s numerous high crime areas. It is almost midnight. Are the police to be satisfied merely on a showing that the man who was in the car is walking away and is not armed? There is a danger that the car will soon be moved. There is the danger that an associate or a confederate might gain access to the car or the shotgun. (At the trial it appeared that defendant’s brother was right at the scene and perhaps there was another man with whom defendant had arrived.) (People v Dinkins, 69 AD2d 384, 387.) While the gun is not technically in plain sight, it is almost so; it was simply between the seat and the door in an unlocked car. It does not appear whether the gun would have been observable by looking through the car windows (id., at p 386). How much expectation of privacy can the owner of the gun expect with respect not to his person but to an unlocked car which he is leaving with the gun thrust between the seat and the door? Thus the stimulus to police action was greater and the invasion of privacy less than was involved in People v Elwell. It seems to me that the police action in opening the unlocked door of the car in the present case was "reasonably related in scope to the circumstances which rendered its initiation permissible.” How could the police, consistently with their duty to protect the safety of the community, have just walked away from this unlocked car in which they reasoanbly suspected there was a shotgun? It may be suggested that the police officers should have questioned defendant first. It is certainly questionable whether police officers who reasonably suspect the presence of a shotgun—and if concealed on defendant’s person, probably a sawed-off shotgun—should be required to make inquiries without taking adequate precautions for their own safety. But quite apart from questions of the officers’ safety, I do not think the failure to question the defendant before opening the car door should make a difference in this case. Suppose the officers had questioned him and asked him whether there was a shotgun in the car; if he said yes, they would obviously have the right to open the car door to seize the shotgun, as they did; and if he said no, could the police officers just walk away? It seems to me that in either case, the police officers would have had to look inside the car, and if they saw the shotgun, take it.

However, under the language of People v Elwell (50 NY2d 231, supra) as I read it, subject to further explication by the Court of Appeals, I agree we must suppress the gun and say that the police officers’ action was legally unjustified.

There are ironic aspects in this case. There was a trial in which defendant contended that a third person had tried to kill him with the shotgun and that he had taken the shotgun from that person and that all he had was legal transitory possession. He was convicted on trial. We reversed and ordered a new trial because a majority of this court thought the cross-examination of the defendant and his brother as to why they failed to mention to the police this immediately preceding attempt to kill the defendant was improper. On reversal, defendant now pleads guilty, thus indicating that his story on the previous trial was a fabrication. But now, we reverse and dismiss the indictment because the search was illegal.

To defendant, a previously convicted felon—so we really cannot hope for his esteem—the law is confirmed as an utterly powerless bugaboo fit to frighten only credulous children. (Only the law’s inefficiency and delay, as a result of which defendant has served two years in prison, can shake defendant in this view!)

But even to that larger public—whose stewards we are and from whose consent we derive our just powers—this case must surely raise very serious questions.

Ross and Carro, JJ., concur with Fein, J. P.; Silverman, J., concurs in an opinion.

Judgment, Supreme Court, New York County, rendered on May 5, 1980, reversed, on the law, the motion to suppress the physical evidence granted, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this court’s order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.