| |
|
 |
 |
 |
 |
Howard R. Birnbach, for appellant.
Elizabeth F. Bernhardt, for respondent.
SMITH, J.:
The issue on
this appeal relates to the defendant s right to be free from an illegal
search and seizure (Articles IV and XIV of the Federal Constitution and
Article I, Section 12 of
the New York State Constitution). A police officer, after lawfully
stopping a cab in which defendant was a passenger, had his suspicions aroused
by his personal observation of defendant's movements and false response
to an inquiry. At this point, the officer touched defendant's sweatshirt
covering a bulletproof vest and, subsequently, discovered a weapon.
Under the circumstances presented, we agree with both lower courts that
the officer s action in touching defendant's sweatshirt was reasonable.
The order of the Appellate Division should be affirmed.
At about 3:00
a.m., on February 20, 1992, two uniformed police officers, Officer Ronda
and Officer Caban, were patrolling in a marked police car in the Bronx.
Seeing a livery cab go
through a red light on the Grand Concourse, the officers pulled the
cab over. As the police car came to a stop, both officers noticed
defendant -- the sole passenger in the cab -- shift from his seat behind
the driver to the middle of the backseat. Defendant's movement drew
the attention of both officers who thought it was "unusual."
Although the
street was brightly lit, it was 3:00 a.m. and Officer Ronda carried a flashlight.
While the cab driver was handing over his paperwork, Officer Ronda shone
his light into
the cab, to see the occupants hands, paying "special attention"
to defendant.
Officer Ronda
then noticed that defendant was "wearing a large object protruding from
his chest." Defendant wore a sweatshirt and an unbuttoned leather
coat over what Officer Ronda believed to be a bulletproof vest, the outline
of which was visible. Officer Ronda was familiar with the appearance
of bulletproof vests because he wore one every day and had observed his
fellow officers wearing them. As the officer later testified, he
knew "what a vest looks like when it s sitting up on somebody s chest."
The rear windows
of the cab were closed. Opening the cab s left rear door, Officer
Ronda leaned his head in and asked, "What do you got on there? What
do you got on there?" Defendant twice replied, "I don t have anything
on." Defendant's evasive denials raised Officer Ronda's suspicions
since he still believed the defendant was wearing a bulletproof vest.
As the officer later testified on cross-examination:
Q:
It was only after touching the vest when he drops his hands that
you then fear for your safety?
A:
Well, it was after I asked him the questions and he said --
and he said that he wasn t wearing anything, that s when my
suspicion was arisen.
Believing that
defendant was "avoiding" him, Officer Ronda then touched defendant on the
chest, where he believed the bulletproof vest to be, and felt a very heavy
"Kevlar" vest. At this moment, defendant "tensed up" and threw his
hands to his sides with his palms down on the seat. His attention
drawn to where the defendant had suddenly pressed his hands, Officer Ronda
looked down and saw a bulge in the right-hand pocket of appellant s leather
coat which lay flush on the seat. At that point, fearing for his safety,
the officer grabbed the pocket, felt a gun, and called to his partner for
assistance.
Officer Caban
grabbed defendant's arm while Officer Ronda removed a loaded, nickel-plated
.380 caliber semi-automatic handgun from appellant s coat pocket.
It was later discovered that this same gun was the weapon used to kill
Mark Santiago, a sixteen-year-old, about three weeks earlier on February
1, 1992. At that time, Officers Ronda and Caban were unaware that defendant
had previously been identified by two witnesses in connection with an investigation
into the murder of Mark Santiago.
Defendant was
convicted, after a jury trial, of murder in the second degree, criminal
possession of a weapon in the second degree and criminal possession of
a weapon in the third
degree. On appeal, the Appellate Division unanimously affirmed
the conviction and held that Officer Ronda s touching of the sweatshirt
was "justified by the taxi having run a red light,
defendant s movements in the back seat, the officer s observation that
defendant appeared to be wearing a bulletproof vest, and defendant s refusal
to answer the officer s questions as to what he was wearing" (216 AD2d
174). The Appellant Division also stated that defendant's hand movements,
throwing "his hands to his sides in an attempt to conceal a bulge in his
coat," gave Officer Ronda "a reasonable concern for his safety," and thus
justified the subsequent search of the defendant's pocket.
The touchstone
of any analysis of a governmental invasion of a citizen's person under
the "Fourth Amendment and the constitutional analogue of New York State
is reasonableness." People v Chestnut (51 NY2d 14, 22 n. 7; People v Moore,
32 NY2d 67, 69). A determination of reasonableness turns upon the
facts of each case (Chestnut, 51 NY2d at 22).
Since the livery
cab had gone through a red light, there is no question that the stop was
appropriate (People v Ingle, 36 NY2d 413). Under the facts here,
the frisk was also
appropriate.
A "frisk," defined
as a "pat-down" of the outer clothing of a suspect, may be justified on
less than what would be required for an arrest. (People v Rivera,
14 NY2d 441, 446;
People v Moore, 32 NY2d 67, 70.) As this Court explained in Rivera:
"If we recognize
the authority of the police to stop a person and inquire concerning
unusual street events we are required to recognize the hazards involved
in this kind
of public duty.
The answer to the question propounded by the policeman may be a bullet;
in any case the exposure to danger could be very great.
We think the frisk is a
reasonable and
constitutionally permissible precaution to minimize that danger."
(14 NY2d at 446.) Yet the propriety of a frisk is not automatic.
The officer must have knowledge of some fact or circumstance that supports
a reasonable suspicion that the suspect is armed or poses a threat to safety
(see, People v Carney, 58 NY2d 51; see also Terry v Ohio, 392 US 1).
The question remains whether the circumstances in this case support a reasonable
suspicion that defendant was armed or dangerous. We think the lower
courts were correct that they do.
The facts giving
rise to the constitutionally permissible intrusion by the officer are not
negated by the officer s testimony that, at the point leading up to the
touching, he did not fear for his safety. As this Court noted in
People v Moore:
"[W]e attach
no significance to the fact that at the suppression hearing the arresting
officer did not articulate any feeling of fear for his own safety
or for the safety of
others at the
time of the search. There was in this situation good cause
for such fear and that alone may be sufficient in a proper
case."
(32 NY2d at 72; see also People v Clee, 89 AD2d 188, 191, app dismissed,
61 NY2d 899.) While the officer here did not indicate that he had
a specific fear that the defendant was armed and dangerous, he expressly
testified that he became suspicious based upon the facts he had observed.
For example,
the officer clearly testified that he felt that the defendant's movement
in the rear seat immediately following the traffic stop was "unusual" causing
the officer to
pay "attention" to defendant. When the livery cab was stopped
by the police, the defendant, who was sitting in the back seat directly
behind the driver, shifted over to the middle of the back seat. The
officer further testified that his "suspicion was arisen" when the defendant
denied that he was wearing a bulletproof vest when the officer was convinced
that the opposite was true. The officer s conclusion was based upon his
years of experience in wearing a bulletproof vest every day and observing
his fellow officers also wearing protective vests.
Generally, a
bulletproof vest is designed to prevent the penetration of bullets (Penal
Law 270.20[2]; cf. Linegar v Armour of American, Inc., 909 F.2d 1150,
1154 [8th Cir. 1990]).
Although wearing a bullet proof vest is not, itself, illegal, this
Court has expressly noted the inherent linkage between a vest and possession
of a firearm. In People v Smith, 59 NY2d
454, we held that while defendant s crime (passing through a subway
gate without paying) "was not one suggestive of the presence of a weapon,
the fact that defendant was wearing a
bullet-proof vest certainly was, and was enhanced by his denial of
the fact" (59 NY2d at 459). Consequently, we held that the search
of defendant s briefcase was permissible.
Although a bulletproof
vest is properly linked to the inference that the wearer might be carrying
a gun, more is usually required to justify a frisk of the suspect (De Bour,
40
NY2d at 216 ["innocuous behavior alone will not generate a foundation
of reasonable suspicion that a crime is at hand"]). Here, the frisk was
undertaken only after defendant's unusual movement immediately following
the valid traffic stop, the defendant's evasive denials about his
bulletproof vest and the officer's observation of what his personal experience
taught him was a bulletproof vest on a person.
Accordingly,
the order of the Appellate Division upholding the defendant s conviction
should be affirmed.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Smith. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.
Decided October 15, 1996