People v. Brooks , 110 A.D.2d 571 ( 1985 )

The facts are basically as set forth in the dissent. We note, however, that the vinyl or leather bag in issue was “right alongside” of defendant when Officer Brenneisen picked it up. The officer testified that as he picked up the bag by its handles, “it just opened,” and at this point he saw the gun.

The radio transmission the officers received concerned a “man with a gun” and the description given over the radio was “a short male black with a plaid jacket, waving a pistol in front of 165th Street, West 165th Street and Anderson Avenue.” The conclusion drawn by the dissent is that, although this provided a sufficient predicate upon which to make an initial noncustodial inquiry, it did not justify further intrusive police action. This is supported neither by the facts nor the controlling case law.

Thus, in People v Benjamin (51 NY2d 267), a radio run advised the officers that there were men with guns at a specified street location. When the officers arrived at the scene, there were about 30 people gathered on the street, one of whom was the defendant Benjamin. As the officers approached him, he stepped backwards and reached beneath his jacket with both hands to the rear of his waistband. One of the officers conducted a limited patdown search, which produced a loaded weapon. The Court of Appeals, although noting that “an anonymous tip of ‘men with guns’, standing alone, does not justify intrusive police action, and certainly does not rise to the level of reasonable suspicion warranting a stop and frisk” added that the People can show that the action was justified “by sufficient explanation of the source of the call and proof of its reliability [citation omitted] or alternatively by showing that the information conveyed was so specific and congruous with that which was actually encountered that its reliability reasonably could have been assumed” (People v Benjamin, supra, at p 270; emphasis added).

In the instant case, the police arrived at the scene to confront only one individual. He also fit the description given exactly, a short black man with a plaid jacket. Thus, the reliability of the call that he had been waving a pistol at that location could reasonably have been assumed by the police.

Also, in Benjamin (supra), the Court of Appeals found that additional support for the radioed tip was furnished by the actions of the defendant in reaching to the rear of his waistband and, therefore, the action of the police in patting down the defendant was a limited intrusion justified by an ample measure of reasonable suspicion.

A fortiori, in the instant case, the officers found the defendant at the scene, with no one else present in the immediate area, who exactly fit the detailed description given (cf. People v La Pene, 40 NY2d 210, 225, tip of “[b]lack man with a red shirt” with possibility other black men with red shirts were present). In addition, the defendant, after he saw the police and after they had identified themselves, turned and walked away “at a fast pace” with his hands “toward his waistband.”

Consequently, the totality of the circumstances, including the detailed radio call and the information acquired by observation at the scene, gave rise to a reasonable suspicion justifying the limited intrusive police behavior herein (People v Benjamin, supra).

Since we determine that the police action, in stopping and frisking defendant, was justified by the totality of circumstances, we must decide whether the officers were also warranted in looking in the bag. The testimony adduced at the suppression hearing and trial shows that while one officer was attempting to put defendant “on top” of a car for the frisk (i.e., against the car), as the court expressly found, the other officer simultaneously “picked up a brown folder type case * * * grasped it by its two handles, one on each hand, and while it was being lifted, it opened * * * disclosing its contents”, the defendant’s gun. After this, the handcuffs were first put on the defendant. The Supreme Court concluded that the bag was “inadvertently opened” by the police officer. There is nothing in the record to support the statement in the dissent that “the officer picked up the case by its two handles, pulling them apart” (emphasis added).

The testimony also showed defendant was frisked, as noted, “on top” of the automobile, and that the bag was alongside the same auto and “right alongside” of defendant. Thus, the contents of the bag were readily accessible to defendant, and the frisk or “patdown” of defendant’s person and the minimal action with respect to the bag were for all practical purposes conducted at the same time and place.

The bag was “right alongside” of him, with no zipper or snap to impede his “grabbing” the gun inside. The action of one officer in picking the bag up as defendant was being frisked by the other was a minimal intrusion and was as fully justified by the totality of the circumstances as was the frisk. “It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” (People v Benjamin, supra, at p 271). Concur — Sullivan, J. P., Asch and Kassal, JJ.