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Defendant was not observed engaging in any overt criminal activity


A New York Criminal Lawyer said that, the defendant was observed by Officers walking in front of a building on Lexington Avenue. The officers also observed through the glass doors of that building that two people were standing in the vestibule area and appeared to be having an argument. The second Officer entered the vestibule area. The other officer approached the defendant and asked him what he was doing. He did not give defendant an opportunity to answer but, rather, pressed a second question: whether defendant knew the two people in the hallway. Defendant denied knowing them. The officer then directed defendant into the hallway.

A New York Criminal Possession of a Lawyer said that, meanwhile, in the hallway, the second Officer was frisking one individual, who was facing the wall with his hands stretched upward against the wall. The second person observed in the hallway was in a corner of the vestibule watching the proceedings. When the first Officer came into the hallway, no weapons had yet been found in the possession of either the individual or the defendant. Ultimately, defendant was found to be in criminal possession of a weapon and an ammunition clip. As they passed the doorway, the officers looked through the glass door and saw two men, in the vestibule talking and waving their arms. The officers parked their car and continued to observe all three men. The two men in the hallway appeared to be having an argument, and one of the men, had an amount of currency in his hands. Defendant continued going back and forth between the apartment house door and the curb, and looking into the hallway. The actions of these three men appeared to the officers to match a pattern of so-called hallway robberies, with the man on the street as a lookout.

A New York Gun Crime Lawyer said that, the hearing court denied defendant’s motion to suppress the physical evidence, and defendant pleaded guilty to the crime of attempt to commit the gun crime of criminal possession of a weapon in the third degree.

The issue in this case is whether the court erred in denying defendant’s motion to suppress the physical evidence against him.

The court in deciding the case said that, the observations of defendant by the police were insufficient for them to conclude that he was a participant in any illegal activity. His conduct of walking in front of the building on Lexington Avenue was equally consistent with innocent activity. There was nothing other than mere suspicion to connect Monsanto with the activities going on in the vestibule area. The first Officer nonetheless directed defendant into the vestibule area and conceded that at that time he was not free to leave.

Defendant was not observed engaging in any overt criminal activity and was placed in custody merely for being in the vicinity of what the officers thought was the scene of a gun crime in progress. * This mere presence in the area was insufficient to constitute probable cause to detain defendant. The continued detention of defendant, after the requested information produced an innocent response without the police having a founded suspicion that defendant was involved in criminal activity, was an improper seizure of his person, and the motion to suppress the evidence subsequently found in the defendant’s possession should have been granted.

It is not necessary to determine whether or not the facts and circumstances gave rise to a reasonable suspicion of criminal activity under Criminal Procedure Law, § 140.50(1) justifying the frisk of the individual. Even if that frisk was legally unjustified, which presents a close question; it is clear that the police had a right to consider his gun in their subsequent actions. The finding of the gun, coupled with all the other circumstances, clearly supported, if it did not require, further police inquiry and the subsequent frisk of defendant. The closest question is presented by the lawfulness of the direction to Monsanto to enter the vestibule and the later direction to him, shortly after the police concluded that there was a conflict in the statements given, to place his hands against the wall.

As to the direction to defendant to enter the vestibule, it is surely clear that the police observations at the very least justified an inquiry on their part to determine the meaning of the observed behavior. The test to be applied was set forth as follows: “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.” The direction to defendant to enter the vestibule cannot be fairly evaluated as unreasonable under all the circumstances. Indeed, it would have been irresponsible for the police officer to have permitted his brother officer to remain alone for an extended period of time inside the vestibule with the two unknown men. Nor would it have been sensible for him to enter the vestibule, leaving him outside, without knowing what had been learned by his brother officer.

The later direction to defendant to place his hands against the wall presents a somewhat different question, its lawfulness turning on whether or not reasonable suspicion then existed. However, that event seems to me legally immaterial here since it occurred immediately before the finding of the individual’s gun gave rise to a right to frisk defendant and is causally unrelated to the finding of the gun he possessed.

The basic principles which the Supreme Court has laid down governing frisks seem to me to justify the police action and the validity of the frisk in this case. “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ The leading case on the validity of police officers’ searches for weapons where the Court said: “We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

This language exactly fits the present situation. The police officers observed the unusual conduct which led them reasonably to conclude in the light of their experience that criminal activity might be afoot and the persons with whom they are dealing might be armed and presently dangerous; the police officers identified themselves and made reasonable inquiries; and nothing in the initial stages of the encounter served to dispel their reasonable fear for their own or others’ safety. They were thus entitled, for their own protection, to conduct a carefully limited search of the outer clothing of the persons involved in an attempt to discover weapons which might be used to assault them.

In the present case the police officers were “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The police officers thought that “either it was a hallway robbery or it was a buy going down.” They described the signs or marks of a pattern hallway robbery: “It would be someone outside, in one particular case because there are numerous cases of hallway robberies. In one of the cases it could be that one perpetrator would be on the outside of the building, used as a lookout, the other perpetrator, his companion, is inside the building with the person who is going to be robbed.” They said these robberies usually take place either in the vestibule between two sets of doors or in the hallway behind the locked door. Nor was their suspicion mere afterthought. As they pulled past the building, one of the officers said to the other “hold it, I think we have a robbery going down.” The officer made this judgment “in light of his experience.” The officers testified as to their experience with hallway robberies and their patterns.

The New York Stop and Frisk Law, CPL § 140.50, states the same principles as the above-mentioned case. It authorizes a stop of a person by an officer “when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor.” Here the officers did so reasonably suspect that a felony was being committed or about to be committed. At the very least they had seen the men “go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” At this point it was only suspicion, however reasonable. Perhaps instead of a robbery it was only an illegal buy. Perhaps it was a perfectly innocent transaction. But there was enough there to give rise to a reasonable suspicion of crime and that is all that is needed to justify this limited stop. “A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior Even though there is no probable cause to make an arrest.”

Considering the many thousands of hallway robberies that take place in this city every year, the police officers would have been derelict in their duty if they had not at least stopped to investigate. Thus the Supreme Court observed in circumstances no more suspicious than those here involved: “It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.”

But such investigation requires that the officer, for his own protection, be permitted to make sure that the person he is investigating is not armed. “There must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, Regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And, again, New York’s Stop and Frisk statute authorizes the search for a weapon where the officer “reasonably suspects that he is in danger of physical injury.”

Accordingly, the court held that the judgment of the Supreme Court, New York County, rendered August 3, 1977, after a hearing on a motion to suppress physical evidence, convicting the defendant after a plea of guilty to the gun crime of attempt to commit the crime of criminal possession of a weapon in the third degree, reversed on the law, the judgment vacated, the motion to suppress granted, and the indictment dismissed.

If you are indicted of a gun crime and the evidence used against your case was illegally obtained seek the representation of a New York Arrest Attorney and New York Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.

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