Published on:

The statute predicates such a search

The issue on this appeal concerns the validity under the Fourth Amendment of a warrantless search of the defendant’s handbag and the seizure of a loaded revolver. After a hearing, the defendant’s motion to suppress the weapon was denied. Thereupon, she entered a plea of guilty to the lesser offense of attempted possession of a weapon and the Appellate Term, Second Department, affirmed the conviction. The court holds on that the motion to suppress was properly denied and, accordingly affirmed the order of the Appellate Term.

While seated in an automobile stopped at an intersection in Queens, the defendant woman was accosted by one man. The man, with whom the defendant woman had been living, entered the vehicle on the passenger side, pushed the defendant’s younger brother aside and grabbed her by the wrist. Brandishing a knife at her throat, he asked where his girlfriend found the car. The defendant woman managed to free herself from his grasp and ran from the vehicle to a nearby police car. She reported that her boyfriend had been harassing her for several days and had just menaced her with a knife. The police then returned to the criminal defendant’s automobile and arrested the man. He told the arresting officer that the defendant was his wife and that she was sick. On their way to the police station, the man told the arresting officer that the defendant had a gun in her possession.

The defendant woman preceded the arresting officer to the police station to file a complaint against her boyfriend. At the police station, the arresting officer confronted her and asked for her handbag, which she surrendered to him. The arresting officer then searched the handbag and found a loaded .22 caliber revolver. Upon showing the revolver to the defendant, she admitted not having a permit for it. Thereupon, she was arrested and charged with possession of a dangerous weapon. It is conceded that when the handbag was searched and the weapon seized, the defendant was not under arrest and the officer did not have a search warrant. Nor is it contended that the defendant consented to the search.

This case presents a somewhat unique variation in a line of cases arising under the stop and frisk law and the Reasonable Search and Seizure Clause of the Fourth Amendment. The touchstone under the statute as well as under the Federal Constitution is reasonableness. Where probable cause for an arrest is lacking, the forcible encounter, the stop, or the seizure, of a citizen by a police officer must arise from a reasonable suspicion that criminal activity is afoot. There is, however, no ready test for determining reasonableness. Rather, a balance must be struck between the need to seize (or stop) and the invasion which the seizure (or stop) entails. In the final analysis, the test is whether the facts available to the officer at the moment of the seizure would warrant a person of reasonable caution in believing that the action taken was appropriate. To be sure, reasonable cause for an investigatory stop may be based on the police officer’s personal observation or on information supplied by another person. But where an informant’s tip is involved, it must carry sufficient indicia of reliability to justify the forcible encounter. It follows that since the standard of reasonable suspicion to stop is lower than the standard of probable cause for an arrest, a less stringent standard should apply for screening tips in the stop context such as an officer may stop on less or different information than probable cause would require.

Not every stop, however, will support an incidental search for weapons. The statute predicates such a search on the police officer’s reasonable suspicion that the individual is presently dangerous. But where the stop is for a serious and violent crime, an immediate and automatic right to search as has been recognized, such as the reasonable suspicion of criminal activity justifies the stop and the frisk or search. It follows that where reliable information or facts available to the police officer link the individual to a weapon, the belief of danger to himself and others is real and reasonable and an immediate search is justifiable.

Here, the forcible encounter between the police officer and the defendant woman occurred in a precinct station house. It was, in the court’s view, precipitated by a reasonable suspicion that the defendant was carrying a concealed weapon. The court thinks the totality of the circumstances necessitated an immediate police response, and although that response was predicated on an informant’s tip, the court finds that the requisite indicia of reliability were present to warrant the action taken.

The officer making the stop had just investigated a serious altercation in which the informant (the defendant woman’s boyfriend) allegedly threatened the defendant with a knife. The information available to the police officer was that the informant and the defendant were man and wife and that they had been quarreling over a period of three days. The police officer knows that at least one dangerous weapon–the knife–was involved, and that the defendant woman was sick. The informant, presumably speaking from personal knowledge, said the defendant had a gun.

The fact that the informant was identified to the officer and was apparently personally acquainted with the defendant would present a stronger case than an anonymous tip and carry enough indicia of reliability to justify a stop and frisk under normal circumstances. But when the circumstances clearly demonstrate the informant’s obvious animosity toward the suspect and the nature of the information evidences a clear motive of vindictiveness, it is difficult to conclude that familiarity breeds reliability. Robbery was not an issue.

Knowing that he would be confronted by his paramour at the police station and that his information would be immediately verifiable, it should be abundantly clear that the man had little motive for fabrication. It should also be noted that under the Penal Law, he was chargeable with falsely reporting an incident if his information was in fact false.

Having concluded that the stop was justified and considering the reason for the stop (report of a concealed weapon), the court do not find the scope of the search constitutionally or statutorily impermissible. Further, with the exigent circumstance of a weapon involved, the court think it would be unreasonable to expect the police officer to have questioned the suspect preliminarily or to have engaged in a preparatory and perhaps dangerous, and almost certainly ineffectual, pat-down of the handbag. Under the circumstances, the court think the limited intrusion involved in searching the defendant’s handbag was reasonable.

Then, too, the court 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. Moreover, the high incidence of willful homicide and aggravated criminal assault and the attendant use of firearms in the context of lovers’ quarrels need no elaboration here.

Finally, the court would merely add that concealed weapons present an immediate and real danger to the public. Although that danger would not warrant a routine weapons check, it should support an appropriate police response on less than a probability. The court thinks this was the case here. Accordingly, the order of the Appellate Term should be affirmed.

Guns were made to protect people from perpetrators. Nowadays, anyone can have access to it which is quite scary. If you are a victim of a gun related crime, call the office of Stephen Bilkis and Associates to discuss your legal troubles with the Queens County Criminal Lawyer or the Queens County Possession of a Weapon Attorney.

Contact Information