People v. Herold

282 A.D.2d 1, 726 N.Y.S.2d 65, 2001 N.Y. App. Div. LEXIS 5095
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 15, 2001
StatusPublished
Cited by47 cases

This text of 282 A.D.2d 1 (People v. Herold) 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. Herold, 282 A.D.2d 1, 726 N.Y.S.2d 65, 2001 N.Y. App. Div. LEXIS 5095 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Sullivan, P. J.

On this appeal from his conviction, after a guilty plea, of criminal possession of a weapon in the third degree, defendant challenges, inter alia, the denial of his motion to suppress the gun recovered from him as well an incriminating post-arrest statement. The issue presented is whether the information in a police radio report containing a physical description of a man with a gun, furnished by a person at a specified address, otherwise unidentified, in combination with the officers’ on-the-scene observations and the suspect’s conduct, justifies a stop and frisk of the person so described.

The following facts were adduced at the suppression hearing. On the morning of March 2, 1998, at approximately 9:25 a.m., [3]*3Police Officers Rodriguez and McNamara, in uniform and on motor patrol in the vicinity of 110th Street and Riverside Drive in Manhattan, received a radio report of a dispute in front of an apartment building at 160 West 116th Street, involving a man, described as a slim-built black male, about 5 feet, 10 inches tall, with a bald head, and wearing a black leather coat, armed with a gun. The radio report did not identify the person who reported the dispute, but indicated that it had been made by someone in a specified apartment in the same building.

The officers drove to 160 West 116th Street, arriving about a minute later. They observed no one in front of the building and entered the vestibule through an unlocked outside door. Finding the inside vestibule door locked, the officers rang the specified apartment and were immediately buzzed into the building.

As the officers waited for the elevator, a black man with a slim build and bald head, wearing a black leather jacket, identified in court as defendant, entered the building and knocked on the inner vestibule door. When Officer Rodriguez opened the door, he realized that defendant matched the description of the armed man given over the radio a minute earlier. Without further inquiry, Rodriguez directed defendant to “put his hands up.” When defendant failed to comply immediately, McNamara placed his hands against the wall. As Rodriguez attempted to frisk him, defendant continually turned the left side of his body away from the officer. Rodriguez then felt a hard object, which he believed to be a handgun, on defendant’s left side and, reaching into defendant’s left inner jacket pocket, recovered a .32 caliber automatic pistol.

McNamara handcuffed defendant and, searching him, discovered that he was wearing a bulletproof vest. When McNamara informed Rodriguez of this fact, defendant interjected, “That’s right, I’m ready for combat.” Rodriguez radioed this information to the back-up team that had arrived during the search and was heading upstairs. Neither officer could recall if there had been any conversation over the intercom with the occupant of the specified apartment who buzzed them into the building.

In denying suppression, the motion court ruled that on the basis of a radio report of “a very dangerous situation” involving a dispute with a gun, the fact that defendant matched the description and was at the location reported and that he “acted in a nervous and reluctant way” when asked to raise his hands, the officers were entitled to frisk defendant “to assure their own safety.” Thus, the court concluded, the gun was properly [4]*4seized, as was the bulletproof vest, during the subsequent search incident to a lawful arrest. The court also found that defendant’s post-arrest statement was not the product of custodial interrogation, and was therefore admissible.

On appeal, defendant argues that the officers’ frisk of him was illegal because it was based solely on the presumptively unreliable tip of an anonymous informant, whose reliability and knowledge of the criminal activity reported were never established. He contends that an anonymous tip giving a general description and location of an individual with a gun merely furnishes the police with the common-law right to inquire (People v Stewart, 41 NY2d 65, 69), whereas the officers’ conduct in this case clearly exceeded that authority.

Bearing in mind that “reasonableness” is the touchstone of any inquiry into the propriety of police conduct in a police-citizen encounter (People v Batista, 88 NY2d 650, 653), a court must weigh the degree of intrusion that such conduct entails against the precipitating and attending circumstances (People v De Bour, 40 NY2d 210, 223). In our view, the police conduct in this case was reasonably related in scope and intensity to the level of information available to the officers at the time they took action. (See, People v Cantor, 36 NY2d 106, 111.)

Upon receiving a radio report of a dispute involving an armed man, the officers were duty bound to investigate. (People v Benjamin, 51 NY2d 267, 270; People v Perez, 224 AD2d 313, affd 88 NY2d 1059.) The radio report gave a reasonably detailed description of the man with the gun, including the suspect’s gender, race, physical build, height, the fact that he was bald and the type and color of his jacket. It further provided a specific address where the suspect could be located. Arriving only a minute later, the officers confirmed the accuracy of the information by observing defendant, appearing almost exactly as described, entering the same building as mentioned in the report.

Defendant’s argument that this information fails the AguilarSpinelli test for probable cause (see, Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108) misses the point. To be sure, in evaluating probable cause based on hearsay information, New York applies the Aguilar-Spinelli test, which requires a showing that the informant was reliable and had some basis of knowledge of the information furnished. (See, People v Bigelow, 66 NY2d 417, 423; People v Cruz, 149 AD2d 151, 157.) Since, however, the initial stop in this case did not require probable cause, a lesser showing with respect to the [5]*5two prongs of the Aguilar-Spinelli test suffices. (See, Alabama v White, 496 US 325, 330 [“(r)easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause”].)

Were it otherwise, the police, on the basis of hearsay information that fails to satisfy Aguilar-Spinelli, could never interfere with the rights of a citizen; probable cause would be required even for the most limited intrusions based on hearsay information. Such a requirement cannot be reconciled with existing precedent. (See, People v Chase, 85 NY2d 493, 501 [while no probable cause existed under Aguilar-Spinelli, matter remanded to the trial court to evaluate whether reasonable suspicion existed justifying a temporary detention]; see also, People v Landy, 59 NY2d 369, 376.)

Defendant relies on the United States Supreme Court’s recent decision in Florida v J.L. (529 US 266), which held that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a police officer’s stop and frisk of the person. The facts of J.L. are distinguishable.

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Cite This Page — Counsel Stack

Bluebook (online)
282 A.D.2d 1, 726 N.Y.S.2d 65, 2001 N.Y. App. Div. LEXIS 5095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-herold-nyappdiv-2001.