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Court Discusses Probable Cause in Gun Crime


The Facts:

On 11 November 1976 at about 8:00 p.m., a man entered a liquor store and asked for a pint of vodka. According to the clerk, the man was in the store for about two minutes, the man spoke with a slight Slavic, Polish or Russian accent, and he told the man he had nothing smaller in vodka than a fifth. At 8:30 p.m., the man returned and asked for a fifth of vodka, placing a $20 bill on the counter, but when the clerk obtained the vodka from a shelf at the back of the store and returned to the counter, a criminal law violation or a felony ensued; there was a handgun crime (possession of a weapon); the man pointed a gun at him and ordered him to lie down on the floor. The clerk was clearing the cash register as the man came in and had left the drawer slightly ajar, but had not removed the bills from it. Lying on the floor, he heard the noise of the spring clips in the register compartments, indicating to him that the money was being removed and the noise of the door to the store opening and closing. After the robber left, the clerk noted that the $190 that had been in the register was gone and that the vodka was still on the counter. The elapsed time from beginning to the end of the man’s second visit was four to five minutes.

Thereafter, the clerk called the police, and two patrolmen arrived within 10 to 15 minutes. The clerk told patrolman-one that the man was about 5 feet 9 inches with long hair roughly to his collar and light brown in color, with a long thin face and a slight mustache, that he was wearing a long leather-type jacket with a belt and baggy pants of navy blue, and that the gun was black, with a short barrel and short chamber. Patrolman-two sought witnesses outside and was advised by witness-one that she had seen a tan van, possibly rust color too, with two male occupants and bearing out-of-State plates circle the area approximately four times, that it had stopped about 50 yards from the liquor store, and thereafter proceeded south. Patrolman-one broadcast the description of the robber received from the clerk and patrolman-two added, as part of the same broadcast, the description he had received of the van. Patrolman-two then went back to witness-one and asked her whether the van was colored like a U-Haul van to which she responded that she believed so since there was writing on the side, that the driver of the van had asked for directions, and that he was a white male, with brown curly hair, a slight mustache and a thin face. Patrolman-two then made a second radio broadcast stating that the van could possibly have been a rental van, a U-Haul van. A Suffolk County Criminal Lawyer said his testimony does not reveal whether the second broadcast included the description of the driver of the van that he had received from witness-one.

The initial broadcast by the two patrolmen describing the robber and the van was received by patrolman-three and his partner patrolman-four, who had also heard a headquarters broadcast concerning a robbery in progress the liquor store. While proceeding toward the robbery scene, patrolman-three observed a U-Haul van with California license plates parked on Palmer Road, in the front seat of which were two white males. The van was facing in the direction away from the liquor store and was legally parked and patrolman-three could see two white mouths and dark hair, though not the exact color of the hair of the occupants. Neither he nor his partner heard Williams’ second broadcast since they were both out of the car at the time. The point at which the van was parked was approximately half to three quarters of a mile from the liquor store. Patrolman-three and patrolman-four stopped and approached the van from different sides, with drawn guns. Patrolman-three ordered the occupants out of the van. They got out and patrolman-three noted that the driver fit the description given over the air. He frisked them and on inquiring what they were doing in the area was told that they were unfamiliar with the area and were waiting for the return of a friend, who was in the process of dropping off some girls. Patrolman-three then told them of the liquor store robbery and that they were possible suspects. They were then handcuffed and placed in the police car. After checking the hood of the van and finding it warm and looking cursorily around inside the van, patrolman-three locked the van and proceeded in the police car with defendant and his companion and patrolman-four to the scene. Roughly 15 minutes had elapsed from the time of the robbery to defendant’s return with the police to the scene.

The clerk, having looked out the store window to the area where defendant and his companion were standing, stated as to the shorter one (the companion) that he was too short. Asked about the other man, he stated that he could not see his full face through the window. However, when the detective in charge at the scene caused defendant to walk toward the store the clerk immediately identified defendant as the man who held him up, although at the suppression hearing he conceded that the jacket and possibly the pants were not the same as he had originally described.

Patrolman-three then placed defendant under arrest after being instructed to do so by the detective in charge following the clerk’s identification. The van was taken to the police headquarters and was searched without a warrant which yielded up from the space behind its roof cross members a short barreled black steel gun. A search of the van occurred within 15 minutes of defendant’s formal arrest and was a regular police procedure with respect to an impounded vehicle.

The Issues:

Was defendant’s arrest, in connection with the handgun crime or felony, without probable cause? Did the police have a reasonable basis upon which to make an inquiry on defendant? Did they exceed constitutional bounds in transporting the defendant from the scene of the inquiry to the scene of the robbery where he was identified by the victim of the robbery? Should the identification testimony, both in-court and pre-trial, be suppressed as should the revolver found on the post-arrest station house search of the van he was seated in when first seen by the police?

The Ruling:

Here, defendant was in fact arrested during patrolman-three’s first encounter with him, for he was detained under threat of police firearms and by words and acts, which while short of stating that he was being arrested, made it clear that he was not free to leave. At the very least, when handcuffed and placed in the police vehicle for transportation back to the robbery scene, defendant was under arrest. If there was at that point probable cause for the arrest, there was no constitutional infirmity in either the one-on-one show-up at the scene in view of its proximity in time and location to the point of arrest, or the inventory search at police headquarters after impoundment of the van that produced the revolver. A New York Sex Crimes Lawyer said the patrolman-three was justified in stopping upon sight of the van, bearing out-of-State license plates, meeting the description as to color he had received, and occupied by two white males, and approaching the occupants with drawn revolver, since the robbery in progress report from headquarters gave him reason to believe that, if this was in fact the van sought, the occupants might be armed. For like reason, he was justified in ordering them out of the van and frisking them. The information which patrolman-two had obtained from witness-one established the probable involvement of the occupants of a van of the description she gave in the liquor store robbery. When within 15 minutes after the robbery and within a distance of half to three quarters of a mile from the robbery scene is found a van bearing colors similar to those described in the broadcast, carrying out-of-State plates, and the driver’s seat of which is occupied by a white male with dark hair, matching in part the description of the robber, the situation varies but slightly from that held by the Supreme Court to constitute probable cause. When to that is added the facts that when defendant alighted from the van it was apparent that he fit the description broadcast in many more aspects than just the color of his hair and his skin, though not entirely as to clothing, and when on touching the hood of the van it was apparent from its warmth that the van had not been long parked where it was found, there clearly were facts and circumstances within patrolman-three’s knowledge and of which he had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that defendant was the perpetrator of the robbery committed at the liquor store. Since patrolman-three’s action in returning the defendant to the scene was predicated on probable cause, we need not reach the question whether absent such cause it is proper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.

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