Published on:

Court Determines Probable Cause for Weapons Charge


Parents have told their teenagers for years to watch the company that they keep. That is especially true if the teens are associating with persons who are likely to commit a crime (felony or misdemeanor). The courts are full of people who were in the wrong place at the wrong time based on the company that they were keeping. Some of these people are completely innocent of any wrongdoing. In many cases, just being present with another person when they commit a crime is enough to qualify as party to a crime. Just by being there, the person may be charged with party to a crime of the crime that the other person commits. That rule is especially true if the person does not report the crime that they were present at. Reporting the crime, is an excellent way to show that the person had no intent to be involved in any wrong doing that occurred in his or her presence. Not reporting the crime can also be used to show intent to be involved in the crime.

In one case that was in the court of appeals of the State of New York, on June 26, 1979 dealt precisely with that problem. It was almost ten o’clock at night on March 11, 1978 when four police officers, three male detectives and one female uniformed officer in plain clothes were observing the actions inside a novelty shop on 42nd Street between 7th and 8th Avenues. The police officers watched as two brothers tried on shoulder holsters for firearms. The two brothers were in the company of a female who was the girlfriend of one of the brothers. The brothers purchased two shoulder holsters. The officers observed the transaction and observed the holsters being placed into a bag and given to the men. The officers observed the men and woman leaving the store and walking east on 42nd Street toward Seventh Avenue. The police officers began to follow the group.

The three people continued walking, but they turned around and looked at the police officers behind them several times. They changed directions and took circuitous routes making note that they were obviously being followed. One of the men began to walk in front of the others and gained on them by about twenty feet. The other two remained behind. The police officers also split up to maintain the proper surveillance. The two male detectives followed the man who had split off from the others. The female officer remained with the other male and the female. She followed them from a distance of about twenty feet.

After several blocks, the man who had moved off in front of his companions, reversed direction and walked straight up to one of the detectives. He made eye contact with him at close range. Neither man spoke at that point. He suddenly turned and ran about twenty feet, pulled a gun out (possession of a weapon) of the waist band of his pants and pointed it at the detective. The second detective yelled a warning about the gun. The first detective struck the gun hand of the man causing him to drop the weapon. He was placed under arrest.

During this altercation, the female officer approached the two companions of the man with the gun and put her hand on their shoulders. She told them that she had a gun pointed at them even though she had not drawn her weapon. However, by restricting their motions and making the statement, she effectively arrested the pair. The question of the legality of that arrest is one of the questions at appeal. The two people had a canvas bag with them that they had placed the holsters in when they were purchased. During the walk before the one man drew the gun on the detective, the officers observed the defendants pass the bag back and forth between them.

When the three people were placed in the police car, the female officer removed the canvas bag from the female defendant’s possession. When she opened the bag, the female defendant stated in a spontaneous utterance that nothing in the bag was hers except for her purse. The female officer began going through the bag and discovered a .38 caliber revolver that was loaded. When the male defendant who had been arrested by the female officer, observed the gun, he stated that the weapon was not his. When they got to the police station, the female officer searched the female defendant who kept saying that she did not know why she was being arrested. She stated that the gun was not hers and that she was only carrying it because it was in the bag. This statement was made after the three had been advised of their rights under Miranda v Arizona. She made several other statements relative to the possession of the weapon. She stated that she was holding it for her boyfriend. Her boyfriend was the male defendant who had been arrested by the female officer after their companion had pointed the pistol at the detective. She stated during processing, that her boyfriend had told her that she would not get charged with the possession of the gun because he would take the responsibility for having it.

When the detectives were processing the boyfriend, they asked him if he was going to let his girlfriend get charged with possession of the gun. The boyfriend told him that he was not, that he would take the responsibility for having the gun. He stated that he and his brother had gone to the west side of New York and bought the guns, they had then gone to 42nd street to get holsters. The defense attorney for the three, filed a motion to suppress the gun and the statements.

The trial court determined that the actions of the officers as it regarded the couple was inappropriate because they had not done anything that would lead anyone to believe that they had broken any law. The court ruled that the officers did not have any actual knowledge that the bag contained a firearm. As such, they did not have any reason to arrest the two. However, they noted that the officers observed two men late at night fitting themselves and purchasing two shoulder holsters for firearms. The police officers are tasked with a duty to prevent crime as well as punish those who commit crimes. For an officer to have observed the actions of these people, and not take action to prevent a crime would have been a dereliction of duty.

The court determined that the officers would have been within their rights to stop the three when they left the store to inquire about the purpose of the holsters. They were also within their rights to continue their surveillance of the three to obtain more information before stopping them. The court reviewed several aspects of the encounter which served to produce in their entirety, probable cause to arrest all three subjects. First, they observed the three trying on and purchasing two shoulder holsters. Second, the trio were observed acting surreptitiously as they attempted to elude the surveillance of the police officers. Thirdly, they were seen passing the canvas bag back and fourth. Then one of the trio pulled a loaded firearm and threatened the detectives. Viewed independently, the actions might not indicate an involvement with the criminal act of pulling the firearm on the officer. However, viewed in the entirety of all of the circumstances, probable cause was present to assume that the two other members of the group probably had at least one other firearm. There were two holsters purchased as observed by the detectives. One man pulled one gun out of his waistband. That left one gun unaccounted for. It stands to reason that it would be in the possession of one of the other members of the group. The case law that defines the interactions in cases of this nature is People v DeBour. DeBour defines four levels of police and suspect interactions. The first tier of interaction is when an officer may stop a suspect is an informational inquiry. This is an informal stop where the officer asks voluntary questions of a person. The second tier is the common-law right to inquire. This is a custodial stop and frisk defined under Terry v Ohio. The third tier is a forcible stop and detention. The fourth is the right to arrest after probable cause has been established and the person may be taken into custody.

The defense maintain that the purchase of a holster for a gun is not a criminal act. However, the prosecutor contends that the purchase of a shoulder holster after the person has specifically had the holster fitted to hide it under the clothing of that person is definitely a suspicious act. It would be foolish to view this action and not believe that the person was in possession of a firearm. Since one of the firearms was then displayed by one of the defendants, the logical progression of any reasonable person given this same set of facts and circumstances is that one of the other two people in the group had possession of the second handgun that would fit in the second holster that was purchased.

The court of appeals determined that it was proper and that probable cause existed to arrest all three of the defendants under the totality of the circumstances that were present. It is legal after they were taken into custody to search the contents of the canvas bag to determine if the second firearm was concealed inside the bag. If they did not search the contents of the bag, the suspect could easily use the firearm to injure one of the officers. The officers further stated that the two defendants who were in the company of the one who pulled the gun were not arrested at the scene as the defense contends. They were detained and transported to the station in order to interview them as to their involvement in the situation with the man who pulled the gun. However, when they were detained, the officers discovered the second weapon concealed in the canvas bag which provided additional evidence that the three were up to something illegal. Since the custodial arrest of all three persons was legal, all proceeds from those arrests are also admissible. Therefore, the motion to suppress that evidence is not granted.

One thing to remember about probable cause is that it is based on the viewpoint of a police officer and not an average citizen. A police officer has skills and knowledge that provide a specialized insight to identify illegal actions.

At Stephen Bilkis & Associates, criminal lawyers, can be reached in any one of many offices located throughout New York and the Metropolitan area. Our handgun crime Attorneys will help you in the event that you are arrested for a weapons charge, sex crimes or theft matter.

Contact Information