People v. Battaglia

82 A.D.2d 389, 442 N.Y.S.2d 316, 1981 N.Y. App. Div. LEXIS 11364
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 9, 1981
StatusPublished
Cited by22 cases

This text of 82 A.D.2d 389 (People v. Battaglia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Battaglia, 82 A.D.2d 389, 442 N.Y.S.2d 316, 1981 N.Y. App. Div. LEXIS 11364 (N.Y. Ct. App. 1981).

Opinions

OPINION OF THE COURT

Dillon, P. J.

Defendant was indicted for burglary in the third degree and grand larceny in the third degree and upon denial after a hearing of his motion to suppress physical evidence, he entered a plea of guilty to the burglary count in full satisfaction of the indictment. The primary issue presented on appeal is whether the seized evidence should be suppressed on the basis, as claimed by defendant, that he was unlawfully detained while the police pursued an investigation of whether a burglary had actually been committed. We hold that the police conduct was reasonably related in scope and intensity to the circumstances of the encounter and that neither the “frisk” nor detention of defendant requires suppression of the evidence subsequently seized.

The facts are gleaned from the suppression hearing. At 5:11 A.M/on January 10, 1980, Deputy Sheriff John Scirri, while on routine patrol, received a radio call of a burglary in progress at Alden Bowling Lanes, Í212 Sandridge Road in the Town of Alden. The call resulted from activation of a silent burglar alarm at those premises.

Scirri arrived at the scene within six or seven minutes and observed that defendant was approximately 175 feet from the Alden Lanes and walking toward an automobile which was parked on the road near an adjacent house. There was no vehicular traffic at the time and no other persons were seen in the area. Defendant entered the automobile which proceeded a short distance before Scirri brought it to a stop by placing the patrol car directly in front of it. On Scirri’s request, defendant produced his license, registration and insurance card, none of which bore a Sandridge Road address, and Scirri immediately recognized defendant’s name as that of a known burglar. He also observed that defendant was breathing heavily and when he asked defendant where he had been, defendant answered that he was “just walking around”. Scirri also [391]*391noted that defendant’s sneakers and socks were wet. He told defendant to step out of his vehicle and as defendant complied, Scirri heard the sound of steel “like loose change coming from his coat pocket” and observed that the pocket was “bulging”. To be “cautious”, he patted defendant down for weapons but noted only the pocket full of change.

At this point, Scirri “detained” defendant “on suspicion of burglary”, handcuffed him and placed him in the patrol car. Within minutes the owner of the Alden Lanes and other police officers, including Trooper J. W. Barrett, arrived at the scene and all, except Trooper Barrett, entered the building. Defendant was also taken inside the building. Scirri saw that a pinball machine had been opened and damaged and that a side door had been “broken into, pried open”. He then removed $49.28 in loose change and dollar bills from defendant’s coat pocket1 and asked Trooper Barrett, who had entered the building, to move defendant’s car out of the roadway where it had been left upon Scirri’s initial confrontation with defendant.

On the snow-covered ground outside, Scirri observed footprints, apparently made by sneakers, leading from the side door of the building through a field to where defendant’s car had first been observed. As Scirri tracked the course of the footprints, Barrett entered defendant’s car and, with the door open and the interior light on, he looked over the front seat to the space between it and the back seat which, according to his testimony, he “always” did, and saw a tire iron and a blue bank money bag on the floor. After removing the car from the road, he turned those items over to Scirri who then searched the vehicle and found seven rolls of coins containing $5 under the front seat.

Defendant’s motion sought to suppress the money seized from defendant’s pocket, the tire iron, the money bag which contained $602, and the rolled coins. In denying the motion the court found that the initial “stop and frisk was legal and proper under section 140.50 of the Criminal Procedure [392]*392Law” and that there “existed probable cause for the search of the vehicle and seizure of the articles and effects from the car and from the defendant’s person.” We agree.

Street encounters between the police and private citizens are inherently troublesome, involving as they do considerations of the duty of law enforcement officials to detect and apprehend criminals weighed against the. right of citizens to be free from overbearing and arbitrary interference (People v Chestnut, 51 NY2d 14, 19; People v Cantor, 36 NY2d 106, 111). In determining, as we must, the reasonableness of police conduct in effecting the multiple searches and seizures under review, we necessarily relate the objectively credible belief of the police at each stage of the confrontation with the concurrent permissible scope of intrusion upon defendant’s right to privacy and personal security (Terry v Ohio, 392 US 1; People v Cantor, supra). Thus with the rising level of police knowledge of relevant and competent factors, a commensurate intensity in police action may be justifiable, and evidence seized as events unfold may be admissible (People v La Pene, 40 NY2d 210, 223).

The intrusion upon a citizen’s freedom may not reach the level of arrest, however, unless the police have probable cause to believe that a crime has been committed (CPL 140.10; see, also, Dunaway v New York, 442 US 200). Where the arrest is unlawful, evidence thereafter seized must be suppressed “absent an independent establishment of probable cause” (People v Cantor, supra, p 111). Put differently, the exclusionary rule will not be invoked where the challenged evidence, if otherwise lawfully seized upon probable cause, is unconnected with the impact of the illegal arrest (People v Rogers, 52 NY2d 527, 532, 533).

In applying these principles, we first note defendant’s acknowledgment that Scirri, on responding to a report of a burglary in progress had “a duty to talk to the only person he saw in the general vicinity”. It is thus necessarily conceded that the objective factors known to Scirri at that point were sufficient to create a reasonable suspicion that defendant had committed a crime. He was justified, therefore, in stopping defendant’s automobile to make inquiry of him (CPL 140.50, subd 1; Terry v Ohio, 392 US 1, supra).

[393]*393On his characterization that his behavior was normal and his answers to Scirri’s questions after the stop were non-evasive and forthright, defendant argues that Scirri was not thereafter justified in ordering him out of the car. We disagree. When, as here, one is lawfully stopped, the de minimis intrusion of ordering him out of his car is a “mere inconvenience [which] cannot prevail when balanced against legitimate concerns for the officer’s safety” (Pennsylvania v Mimms, 434 US 106, 111).

Beyond that, however, Scirri’s observations and defendant’s answers to his questions combined together to raise the level of Scirri’s reasonable suspicion to a degree requiring further, but minimal, intrusion upon defendant’s freedom. As defendant exited the automobile, other objective factors were added to Scirri’s growing fund of relevant information. Defendant’s coat pocket was “bulging” with what Scirri assumed from the “sound of steel” was an inordinate amount of “loose change”.

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Bluebook (online)
82 A.D.2d 389, 442 N.Y.S.2d 316, 1981 N.Y. App. Div. LEXIS 11364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-battaglia-nyappdiv-1981.