People v. Bond

116 A.D.2d 28, 499 N.Y.S.2d 724, 1986 N.Y. App. Div. LEXIS 50364
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 13, 1986
StatusPublished
Cited by28 cases

This text of 116 A.D.2d 28 (People v. Bond) 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. Bond, 116 A.D.2d 28, 499 N.Y.S.2d 724, 1986 N.Y. App. Div. LEXIS 50364 (N.Y. Ct. App. 1986).

Opinion

OPINION OF THE COURT

Carro, J.

This appeal poses the question of whether the information contained in an anonymous tip, that a young black male, walking west on 137th Street, between Fifth and Lenox Avenues, wearing a blue coat, carrying a brown paper bag and possessing a gun, is in and of itself sufficient to establish reasonable suspicion that a crime is being committed and that the responding police officers are in danger of injury so as to justify a forcible stop and immediate frisk of any person matching the description. Absent the observation of attendant circumstances which would provide objective, independent proof of the reliability and accuracy of the information, exigent circumstances or an unusually detailed and accurate description of the person to be stopped, we hold that such an anonymous tip is, as a matter of law, insufficient to warrant a forcible stop and frisk and warrants only a police officer’s common-law right to stop and make inquiry. Any conduct more intrusive than a temporary stop to inquire is constitutionally infirm. Because the police officers here, acting only on the strength of this generalized anonymous tip, adopted the more intrusive, unwarranted action of a forcible stop and frisk, defendant’s motion to suppress the weapon seized as a result of that unconstitutional frisk must be granted.

The facts of this case are basically undisputed, and we do not disturb the findings of fact made by the hearing court. At approximately 9:14 a.m. on January 3, 1984, Officers Pelegrino and Visco were in their radio patrol car at 135th Street when they received the transmission, derived from an anonymous source, that a young black male, walking west on 137th Street between Fifth and Lenox Avenues, wearing a blue coat and carrying a brown paper bag, had a gun. The officers immediately proceeded to the corner of Lenox Avenue and 137th Street, where they spotted defendant almost at the corner, walking westbound. He wore a blue jacket and dungarees and carried a shopping bag. Pelegrino radioed central communications to obtain a further description of the suspect, but received only the original transmission.

The officers observed no unusual conduct on the part of [30]*30defendant and saw no bulge on his person to indicate a concealed weapon. Yet, without making any inquiry, they approached defendant with guns drawn and ordered him to freeze and put his hands up against a car. While Pelegrino pointed a gun at him, Visco frisked defendant. Visco felt a bulge in defendant’s waistband and removed a gun. Visco also found six bullets in a pocket of the jacket. Officer Gray soon arrived in his patrol car and arrested defendant. He searched defendant’s bag and recovered marihuana. Later, at the precinct, defendant was questioned and stated that he had bought the gun on the street.

Suppression of the gun and statement was denied, and on April 19, 1984, defendant pleaded guilty to attempted criminal possession of a weapon in the third degree, in satisfaction of the indictment. A sentence of 2 to 4 years in prison was imposed on May 31, 1984. Defendant was also convicted of violation of probation and sentenced to a concurrent term of 1 to 3 years in prison.

The touchstone by which to measure police conduct in any 4th Amendment case is reasonableness. (Cady v Dombrowski, 413 US 433, 439; People v Prochilo, 41 NY2d 759, 761.) When the predicate for a forced street encounter is police receipt of anonymous telephone information, the proper method by which to determine reasonableness "is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual.” (People v Stewart, 41 NY2d 65, 66; see also, People v De Bour [La Pene], 40 NY2d 210, 222; People v Cantor, 36 NY2d 106, 111.)

The predicate authorizing an officer’s common-law right to interfere with a person’s liberty, short of a forcible seizure, and make inquiry is a founded suspicion that criminal activity is afoot. (People v De Bour [La Pene] supra, at p 223.) To justify a forcible stop, the predicate for the encounter must be of sufficient quality to support a finding of reasonable suspicion that the person has committed, is committing or is about to commit a crime, and a frisk in such a situation is warranted only if the officer reasonably suspects that he is in danger of physical injury from the detained person. (CPL 140.50 [1], [3]; People v De Bour [La Pene] supra, at p 223.) What constitutes reasonable suspicion "is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.” (People v Cantor, supra, at pp 112-113.)

[31]*31In the context of police responses to tips of armed suspects, we have had the occasion to conclude most decidedly that "a telephone call from an anonymous source furnishing a general description and location of a 'man with a gun’ * * * does not, by itself, constitute reasonable suspicion to stop and frisk anyone who happens to fit that description”. (People v Bruce, 78 AD2d 169, 172; see also, People v Benjamin, 51 NY2d 267, 270; People v Stewart, supra, at p 69; People v De Bour [La Pene], supra, at pp 223-224.) Rather, such information only furnishes the police officer with the common-law right to inquire. It is only when that information is considered in conjunction with the attendant circumstances and exigencies, as observed by the police during the encounter, that a general tip and those observations may collectively support a finding of reasonable suspicion so as to legitimatize a more intrusive police response. (People v Benjamin, supra, at p 270; People v De Bour [La Pene] supra, at p 225; People v Bruce, supra, at p 172.)

In some rare instances, the information contained in a radio run may on its own provide reasonable suspicion, but only if it is "so specific and congruous with that which was actually encountered that its reliability reasonably could [be] assumed (Draper v United States, 358 US 307; see People v McLaurin, 56 AD2d 80, 84 [dissenting opn], revd on dissenting opn 43 NY2d 902; People v Kinlock, 43 NY2d 832).” (People v Benjamin, supra, at p 270.) Alternatively, the information relayed may present a situation of such grave danger as to sustain a finding of reasonable suspicion that a crime has been, is being or will be committed, thereby justifying more intrusive measures. Thus, "where the report indicates that the person has used the weapon to menace or threaten or will use the weapon if stopped for questioning or the weapon has such potential destructive power as to dispel any possible legitimate possession, then personal and public safety may well mandate a more intensive police intrusion.” (People v De Bour [La Pene] supra, at p 225.)

With these guidelines in mind, we hold that the information supplied here, even in conjunction with all attendant circumstances, fails to meet that quantum of evidence necessary to support a determination of reasonable suspicion and permit the immediate frisk to which this defendant was subjected. The information was not specific and did not give such a unique description of the suspect and his acts so as to render it inherently trustworthy and reliable. The description of a [32]

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Bluebook (online)
116 A.D.2d 28, 499 N.Y.S.2d 724, 1986 N.Y. App. Div. LEXIS 50364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bond-nyappdiv-1986.