People v. Cartagena

189 A.D.2d 67, 594 N.Y.S.2d 757, 1993 N.Y. App. Div. LEXIS 2427
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 16, 1993
StatusPublished
Cited by20 cases

This text of 189 A.D.2d 67 (People v. Cartagena) 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. Cartagena, 189 A.D.2d 67, 594 N.Y.S.2d 757, 1993 N.Y. App. Div. LEXIS 2427 (N.Y. Ct. App. 1993).

Opinion

OPINION OF THE COURT

Ellerin, J.

Defendant was arrested at the South Street Seaport in Manhattan during a fireworks celebration and charged with criminal possession of a weapon in the third degree. The issue before us is the propriety of the police conduct preceding defendant’s arrest.

At the hearing on the defendant’s motion to suppress the weapon and certain postarrest statements, Officer David Ruiz testified that on June 10, 1991 he was on crowd control duty at the South Street Seaport when, at approximately 8:00 p.m., he was approached by a young man, whom he described as black, in his twenties or thirties, 5 feet, 7 inches in height and wearing jeans and a summer shirt. Pointing toward defendant, who was wearing a black shirt and was walking slowly through the crowd with two women and a man about 40 to 50 feet away, the man stated, "That man with the black shirt has a gun and a black bag.” Ruiz asked the man how he knew about the gun and he replied that he had seen the defendant "brandishing the gun to his friend in a black bag.” At this [69]*69point, Officer Ruiz and the defendant were surrounded by a dense crowd. After Ruiz discussed the matter with his sergeant, who was nearby, Ruiz walked toward defendant from the front while his sergeant approached from the rear. Ruiz, who put his hand on his gun but did not draw it, said to defendant, "Yo, what’s up, homeboy?” and immediately reached for the zippered black bag which defendant was holding under his arm. As soon as he touched the bag he felt the weight and the contour of a gun, and he then pulled the bag away.

The defendant’s testimony differed somewhat. He testified that he was in the crowd at about 8:00 p.m. when he overheard a police radio call report that: "[T]hey are looking for a guy with a black shirt with some design in the front.” Officer Ruiz then approached him from the front and said, "Do you have anything on you?” and defendant replied that he did not. While two officers stood at defendant’s rear, Ruiz frisked him from his ankles up to his waist, and then grabbed his bag from under his arm, opened it and found the gun.

The court fully credited the testimony of Officer Ruiz and, to the extent that it did not contradict the testimony of the officer, also credited the defendant’s testimony. Based on these facts, the court suppressed the weapon, finding that Officer Ruiz’ actions constituted a forcible search and seizure not supported by probable cause. Because we find that, under these circumstances, Officer Ruiz acted properly, we reverse.

The issue which confronts us, i.e., the level of police intrusion permitted upon an anonymous report that a person is carrying a gun, is one that, unfortunately, recurs with frequency in our increasingly violent society. Since these cases frequently fall immediately on one side or the other of the line of demarcation between proper police action and unlawful search and seizure, seemingly similar fact patterns sometimes result in different outcomes and lead to confusion. It is somewhat ironic that it is the police officer who initially bears the heavy burden of analyzing the unfolding situation and making subtle distinctions in split seconds in order to determine what level of encroachment upon an individual’s right to privacy is warranted. Nevertheless, since confrontation between police officer and citizen has been, and will remain, the fundamental intersection between the power of the State and the rights of the individual, each such encounter must be carefully scrutinized to insure that the legally protected liberty rights of the individual have not been improperly intruded upon by police [70]*70officers in the course of carrying out their important law enforcement obligations. (People v Cantor, 36 NY2d 106.)

In People v De Bour (40 NY2d 210), the Court of Appeals enunciated guidelines for assessing the propriety of police-initiated encounters with civilians based upon a four-tiered method of analysis ranging from a first-level minimal intrusion that is permissible for purposes of obtaining information where some articulable reason for doing so exists, to the fourth stage of an arrest by virtue of the existence of probable cause. This four-step framework was reaffirmed and clarified in People v Hollman (79 NY2d 181) and was further amplified in People v Martinez (80 NY2d 444), particularly with respect to the third level of intrusiveness by way of a forcible stop and seizure that takes place whenever an individual’s freedom of movement is significantly impeded but is less than an arrest.

It is made clear in the foregoing cases that the underlying determinant of the appropriateness of police conduct is the quantum of knowledge which the officer possesses in relation to the specific level of interference with the individual’s freedom of movement and that "[t]he greater the level of police interference, the greater the quantum of information necessary to justify it” (People v Martinez, supra, at 447). Making a determination as to whether the extent of the officer’s intrusion was proper in a particular case is often complicated by the dynamics of an unfolding situation that provides incremental knowledge that may justify an escalating level of intrusiveness not initially warranted. The touchstone in each case is the reasonableness of the police conduct in light of the particular circumstances giving rise to the police intrusion at each stage.

Within that framework we turn to the facts of the instant case. Here, the report that the officer received from a person in the crowd that specifically and clearly identified defendant as the person claimed to be carrying a gun was sufficient to provide the officer with a reasonable suspicion that the defendant was committing a crime (People v Salaman, 71 NY2d 869; People v Lindsay, 72 NY2d 843, 844-845; People v Russ, 61 NY2d 693; People v McLaurin, 43 NY2d 902, revg on dissent below 56 AD2d 80, 84-85). Moreover, the reliability of the report was enhanced by the fact that it came from a citizen on the street with whom the officer had a face-to-face confrontation and who reported that he had actually seen the weapon in question (People v Fernandez, 182 AD2d 431, lv denied 79 NY2d 1049; People v DeJesus, 169 AD2d 521, 522, lv [71]*71denied 77 NY2d 994; People v Castro, 115 AD2d 433, 435, affd 68 NY2d 850).

Once the police officer possessed facts giving rise to reasonable suspicion of criminal activity on the defendant’s part, he was entitled to stop the defendant and, since he additionally possessed "reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion [was] armed and [might] be dangerous” (People v Russ, supra, at 695), he was also entitled to frisk him. In this context, we note that, under certain circumstances, even a reliable report that a person has been seen with a gun will not be sufficient to support a protective frisk when the officer also has information that the party involved is not at that point dangerous. (See, e.g., People v Russ, supra [frisk improper where police were told defendant had had a gun but had given it to someone else]; People v Hernandez, 179 AD2d 517, lv denied

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Bluebook (online)
189 A.D.2d 67, 594 N.Y.S.2d 757, 1993 N.Y. App. Div. LEXIS 2427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cartagena-nyappdiv-1993.