Martuscello, J.
Shortly after midnight on the morning of September 13, 1970, Patrolman Jesse Carter, an off-duty New York City Housing Authority policeman, was driving home from the movies with a female companion, when he observed the defendant and another "crouched” behind a parked automobile in a partially deserted parking lot in the South Jamaica section of Queens. Although his vision was partly obscured by the parked car, Carter stated that he could see the "whole upper part” of the defendant’s body, and that the defendant was holding an object in his hands. He further stated that the defendant’s companion was holding an object in his hands as well, which the latter thereafter placed in his rear pants pocket. The officer admitted candidly that he did not know what either object was at the time.
Continuing around the corner, Carter entered the lot, turned off his lights, and parked in a parking space two car lengths away. He then paused for a "brief moment”, turned on his headlights, and drove towards the two men. Halting the car, he exited briskly, identified himself as a police officer, and ordered the defendant to "freeze”. The foregoing was accomplished with his pistol already drawn. As the defendant rose up from his crouched position, Carter observed him drop something to the ground, which Carter later retrieved and found to be a loaded handgun. The defendant was thereafter informed that he was under arrest and was searched. Six additional bullets were found in that search; a search of the companion revealed a second handgun.
A motion to suppress the physical evidence was denied by the Criminal Term, whereupon the defendant elected to plead guilty. He now seeks a reversal of his conviction, alleging, as the sole ground therefor, that the evidence was unlawfully obtained by reason of an illegal seizure. This contention cannot be sustained.
In light of the recent holding of our Court of Appeals in People v Cantor (36 NY2d 106), it can no longer be seriously contended that the defendant’s gunpoint detention was anything less than a "seizure” within the meaning of the Fourth Amendment, as he was unquestionably, from that moment [291]*291forward, significantly deprived of his freedom of movement as a direct result of official police action (People v Cantor, supra, p 111; see, also, Terry v Ohio, 392 US 1). This being the case, it follows ex necessitate that the legality of the seizure, and perforce the admissibility of the evidence derived therefrom, must depend ultimately upon the presence of probable cause for the detention, or, in the alternative, "whether it fits within the narrow exception carved out by the Supreme Court in Terry v. Ohio (392 U. S. 1) and Adams v. Williams (407 U. S. 143) where forcible street encounters were found to have been properly initiated by the police and reasonable under the circumstances” (People v Cantor, supra, p 110). Here, as in People v Cantor, reliance upon probable cause has been disclaimed; hence the question presented is whether, under the facts of this case, the conduct of the police was otherwise "justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible. (Terry v. Ohio, supra, at p. 19; Cupp v. Murphy, 412 U. S. 291; People v. Kuhn, 33 N Y 2d 203.)” (People v Cantor, supra, p 111). This, in turn, requires us to weigh carefully "the government’s interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual’s right to privacy and personal security (Terry v. Ohio, supra; Camara v. Municipal Ct., 387 U. S. 523)” (People v Cantor, supra, p 111; see, also, United States v Ward, 488 F2d 162, 168). We now embark upon this task, eschewing, as per the cautionary language of the Court of Appeals, the semantic trap of attempting to label the particular police action. "The proscription against unreasonable searches and seizures is designed to prevent random, unjustified interference with private citizens whether it is denominated an arrest, investigatory detention, or field interrogation (Davis v. Mississippi, 394 U. S. 721; Cupp v. Murphy, 412 U. S. 291, supra; see, generally, La Fave, Arrest: The Decision to Take a Suspect into Custody; Reich, Police Questioning of Law Abiding Citizens, 75 Yale L. J. 1161). * * * Whenever a street encounter amounts to a seizure it must pass constitutional muster” (People v Cantor, supra, p 112).
Discounting the existence of probable cause, the authority of the police in New York to intercept persons on the public street is derived from two independent sources: the so-called stop and frisk law (CPL 140.50) and the common-law right of inquiry (see People v Rivera, 14 NY2d 441, cert den 379 US [292]*292978). Pursuant to statute, in order for a person to be lawfully detained in a public place, it is necessary that the detaining officer harbor a "reasonable suspicion” that such person is committing, has committed, or is about to commit a crime, and, when used in this context, "reasonable suspicion” has been defined as that quantum of knowledge which, under the circumstances then present, would prompt an ordinarily prudent and cautious man to believe that criminal activity is at hand (People v Cantor, supra, pp 112-113). Vague or uriparticularized hunches will not suffice for this purpose; nor will good will on the part of the police (see Terry v Ohio, supra). What is required, according to recent decisions, are "specific and articulable facts which, along with any logical deductions [therefrom], reasonably [prompt the given] * * * intrusion” (People v Cantor, supra, p 113).
By way of contrast, the common-law right of inquiry is not so strictly proscribed; it operates to permit lawful detentive inquiry upon grounds less compelling than "reasonable suspicion” (see People v Rosemond, 26 NY2d 101, 104). As was stated by the Court of Appeals in People v Rivera (14 NY2d 441, 444-445, cert den 379 US 978, supra): "The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off” (see, also, People v Peters, 18 NY2d 238, 242-243, affd sub nom Sibron v New York, 392 US 40). Nevertheless, it is still clear that such authority cannot operate as a license to violate the Constitution; the common-law right of inquiry does not include the right to unlawfully seize. To quote again from People v Cantor (supra, p 114): "The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot (e.g., United States v. Ward, 488 F. 2d 162; United States v. Bugarin-Casas, 484 F. 2d 853, cert. den. 414 U. S. 1136).
Free access — add to your briefcase to read the full text and ask questions with AI
Martuscello, J.
Shortly after midnight on the morning of September 13, 1970, Patrolman Jesse Carter, an off-duty New York City Housing Authority policeman, was driving home from the movies with a female companion, when he observed the defendant and another "crouched” behind a parked automobile in a partially deserted parking lot in the South Jamaica section of Queens. Although his vision was partly obscured by the parked car, Carter stated that he could see the "whole upper part” of the defendant’s body, and that the defendant was holding an object in his hands. He further stated that the defendant’s companion was holding an object in his hands as well, which the latter thereafter placed in his rear pants pocket. The officer admitted candidly that he did not know what either object was at the time.
Continuing around the corner, Carter entered the lot, turned off his lights, and parked in a parking space two car lengths away. He then paused for a "brief moment”, turned on his headlights, and drove towards the two men. Halting the car, he exited briskly, identified himself as a police officer, and ordered the defendant to "freeze”. The foregoing was accomplished with his pistol already drawn. As the defendant rose up from his crouched position, Carter observed him drop something to the ground, which Carter later retrieved and found to be a loaded handgun. The defendant was thereafter informed that he was under arrest and was searched. Six additional bullets were found in that search; a search of the companion revealed a second handgun.
A motion to suppress the physical evidence was denied by the Criminal Term, whereupon the defendant elected to plead guilty. He now seeks a reversal of his conviction, alleging, as the sole ground therefor, that the evidence was unlawfully obtained by reason of an illegal seizure. This contention cannot be sustained.
In light of the recent holding of our Court of Appeals in People v Cantor (36 NY2d 106), it can no longer be seriously contended that the defendant’s gunpoint detention was anything less than a "seizure” within the meaning of the Fourth Amendment, as he was unquestionably, from that moment [291]*291forward, significantly deprived of his freedom of movement as a direct result of official police action (People v Cantor, supra, p 111; see, also, Terry v Ohio, 392 US 1). This being the case, it follows ex necessitate that the legality of the seizure, and perforce the admissibility of the evidence derived therefrom, must depend ultimately upon the presence of probable cause for the detention, or, in the alternative, "whether it fits within the narrow exception carved out by the Supreme Court in Terry v. Ohio (392 U. S. 1) and Adams v. Williams (407 U. S. 143) where forcible street encounters were found to have been properly initiated by the police and reasonable under the circumstances” (People v Cantor, supra, p 110). Here, as in People v Cantor, reliance upon probable cause has been disclaimed; hence the question presented is whether, under the facts of this case, the conduct of the police was otherwise "justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible. (Terry v. Ohio, supra, at p. 19; Cupp v. Murphy, 412 U. S. 291; People v. Kuhn, 33 N Y 2d 203.)” (People v Cantor, supra, p 111). This, in turn, requires us to weigh carefully "the government’s interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual’s right to privacy and personal security (Terry v. Ohio, supra; Camara v. Municipal Ct., 387 U. S. 523)” (People v Cantor, supra, p 111; see, also, United States v Ward, 488 F2d 162, 168). We now embark upon this task, eschewing, as per the cautionary language of the Court of Appeals, the semantic trap of attempting to label the particular police action. "The proscription against unreasonable searches and seizures is designed to prevent random, unjustified interference with private citizens whether it is denominated an arrest, investigatory detention, or field interrogation (Davis v. Mississippi, 394 U. S. 721; Cupp v. Murphy, 412 U. S. 291, supra; see, generally, La Fave, Arrest: The Decision to Take a Suspect into Custody; Reich, Police Questioning of Law Abiding Citizens, 75 Yale L. J. 1161). * * * Whenever a street encounter amounts to a seizure it must pass constitutional muster” (People v Cantor, supra, p 112).
Discounting the existence of probable cause, the authority of the police in New York to intercept persons on the public street is derived from two independent sources: the so-called stop and frisk law (CPL 140.50) and the common-law right of inquiry (see People v Rivera, 14 NY2d 441, cert den 379 US [292]*292978). Pursuant to statute, in order for a person to be lawfully detained in a public place, it is necessary that the detaining officer harbor a "reasonable suspicion” that such person is committing, has committed, or is about to commit a crime, and, when used in this context, "reasonable suspicion” has been defined as that quantum of knowledge which, under the circumstances then present, would prompt an ordinarily prudent and cautious man to believe that criminal activity is at hand (People v Cantor, supra, pp 112-113). Vague or uriparticularized hunches will not suffice for this purpose; nor will good will on the part of the police (see Terry v Ohio, supra). What is required, according to recent decisions, are "specific and articulable facts which, along with any logical deductions [therefrom], reasonably [prompt the given] * * * intrusion” (People v Cantor, supra, p 113).
By way of contrast, the common-law right of inquiry is not so strictly proscribed; it operates to permit lawful detentive inquiry upon grounds less compelling than "reasonable suspicion” (see People v Rosemond, 26 NY2d 101, 104). As was stated by the Court of Appeals in People v Rivera (14 NY2d 441, 444-445, cert den 379 US 978, supra): "The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off” (see, also, People v Peters, 18 NY2d 238, 242-243, affd sub nom Sibron v New York, 392 US 40). Nevertheless, it is still clear that such authority cannot operate as a license to violate the Constitution; the common-law right of inquiry does not include the right to unlawfully seize. To quote again from People v Cantor (supra, p 114): "The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot (e.g., United States v. Ward, 488 F. 2d 162; United States v. Bugarin-Casas, 484 F. 2d 853, cert. den. 414 U. S. 1136). Our court has consistently limited this power when it has been exercised solely on the basis of vague suspicion or as a means of harassment (see, e.g., People v. Stokes, 32 N Y 2d 202; People v. Schanbarger, 24 N Y 2d 288; Sibron v. New York, 392 U. S. 40)” (accord People v Buffolino, 48 AD2d 904).
Applying the foregoing considerations to the case at bar, we [293]*293are of the opinion that Patrolman Carter’s actions were, at the minimum, justified under the common-law right of inquiry; he was clearly possessed of such information as would warrant a "founded suspicion” that criminal activity was "afoot”. Thus, Carter was aware, by reason of his observation, of the presence of two unidentified men "crouched” behind a parked car in a practically deserted parking lot in the South Jamaica section of Queens, and of the presence of "objects” in their hands. The hour was late, approximately 12:25 a.m. Although admittedly equivocal, and hence capable of innocent interpretation, the foregoing is precisely the sort of suspicious street conduct which should be investigated. In the absence of such investigation the cause of crime prevention may needlessly suffer (see People v Rivera, supra). Plainly, we are not here dealing with that type of "random” or "unjustified” interference which was condemned in People v Cantor (supra); nor are we dealing with a case of "vague suspicion” on the part of the police. What we have here is a situation wherein an officer, by reason of the hour, the location and the nature of the activity observed, came to harbor a "founded suspicion” that criminal activity was afoot, and acted reasonably to test that suspicion. While it may have been otherwise, given other details, the fact remains that under the circumstances of this case, the "seizure” was reasonable within the meaning of the Fourth Amendment; the government’s interest in the prompt investigation of this caliber of unusual street conduct (and the consequent potential for the prevention of crime) must be held to take precedence over the undoubted (and initially temporary) encroachment of individual rights of privacy and personal security which necessarily results (see People v Cantor, supra, p 111).
We cannot, as the dissent has attempted to do, demean the quality of Carter’s suspicion; nor do we fault his decision in drawing his gun. The facts observed were not, as has been suggested, equally consistent with changing a flat tire. The record fails to reveal those normal incidents of everyday life which we have come to associate with changing a tire (i.e., the raised or lopsided car, the bumper-jack, and the upraised trunk lid). Moreover, we would be loathe to hold that, in the absence of specific knowledge as to what objects the defendant and his companion were holding in their hands, a "founded suspicion” that criminal activity was "afoot” could not have arisen (see United States v Bugarin-Casas, 484 F2d 853), or [294]*294that by drawing his weapon, this officer converted an otherwise lawful detention into an illegal arrest (see People v Wiggins [decided herewith]). The element of danger in such circumstances is well documented by the cases (see Adams v Williams, 407 US 143, 146; Terry v Ohio, 392 US 1, 24, supra; People v Rivera, 14 NY2d 441, 446, cert den 379 US 978, supra; cf. CPL 140.50) and constitutes a factor which we can ill ignore. Thus, we are impelled to state clearly and for the record that the right of inquiry must be accompanied by a coordinate right to act reasonably to protect the officer and the public at large, and that, under the facts of this case, Carter’s response to the situation was both reasonable and necessary to his personal well-being. Clearly, a lesser response by him may have rendered his own life forfeit. We do not believe that the Fourth Amendment’s proscription against unreasonable searches and seizures requires officers in Carter’s stead to risk their lives needlessly in the performance of their duty. Constitutionalism, at least in this context, does not require the sacrifice of natural rights.