PEOPLE v. JOHN BB., 56 N.Y.2d 482 (1982)

438 N.E.2d 864, 453 N.Y.S.2d 158

Court of Appeals of the State of New York.Argued June 10, 1982
Decided July 2, 1982

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, LOUIS B. SCHEINMAN, J.

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Steven S. Katz for appellants.

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Stephen F. Lungen, District Attorney (Frank J. Labuda an Jeffrey L. Kirsch of counsel), for respondent.

WACHTLER, J.

In response to a series of burglaries committed in a remote rural region, the local police stopped vehicles traveling in the area. The stops were conducted in a uniform, nonarbitrary and nondiscriminatory manner for the purpose of ascertaining the identity of the occupants and obtaining information regarding the criminal activity. The question on this appeal is whether these stops violate the constitutional proscription against unreasonable searches and seizures.

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On December 19, 1978 the New York State Police discovered that approximately 40 burglaries of vacant summer homes had occurred in the sparsely populated area of Sullivan County’s Anawanda-Tennanah Lake region. Investigator Connors began surveillance of the area on December 21 with the expressed intent of stopping all of the vehicles that he found and interviewing all people in the general vicinity of the lake.

At about 9:30 P.M. on the same day, defendant Stephen CC.’s automobile was stopped by Connors’ unmarked parked police cruiser and two other police vehicles.

In response to a demand for his driving license and automobile registration, defendant Stephen CC. exited from the car to produce the requested documents. Connors then looked inside the open car door with his flashlight and observed a rifle case protruding from under the front seat as well as several flashlights lying on the floor of the vehicle. Connors seized the rifle case, opened it and discovered that it contained a pellet gun. One of the officers recalled that a pellet gun had been reported stolen from one of the nearby cottages.

Defendant Stephen CC., when asked where he obtained the gun, responded that he bought it from a friend along with a pair of audio speakers which were in the trunk. He could not, however, remember the name of the friend who had sold him the items. Since speakers had also been reported stolen from one of the burglarized cottages, the trunk was opened without Stephen CC.’s consent and the speakers were seized. The other three passengers in the car, including defendant John BB., responded to interrogation regarding their activities in the area with conflicting statements.

Both defendants were taken to police headquarters, waived their rights, and confessed to the commission of several burglaries. After being indicted on multiple counts of burglary in the second degree (Penal Law, § 140.25, subd 1), defendants moved to suppress their confessions and the evidence seized from Stephen CC.’s vehicle on the ground that the initial stop of the vehicle was not grounded upon reasonable suspicion of current criminal activity and

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was therefore unconstitutional. Following denial of that motion defendants pleaded guilty to four counts of attempted burglary in the second degree (Penal Law, § 110.00, 140.25, subd 1) and were adjudicated youthful offenders. The Appellate Division upheld the validity of the roving roadblock and affirmed the judgment of the court below. We agree with the Appellate Division’s determination that the procedure employed by the police was constitutionally permissible and therefore affirm.

The defendants are correct in their contention that the Constitutions, both Federal and State, protect an individual from unreasonable searches or seizures conducted by law enforcement officials. And although not every encounter of an inquisitorial nature rises to the level of a seizure within the meaning of the constitutional language, it cannot be disputed that the stop of Stephen CC.’s automobile was at least a limited seizure subject to constitutional limitations (Delaware v Prouse, 440 U.S. 648 People v Ingle, 36 N.Y.2d 413).

The question then is whether the stop of the defendants was the type of unreasonable seizure prohibited by the Constitution. While this proscription generally forbids any unwarranted intrusion into the private affairs or conduct of any individual, we have noted that there is no absolute right to be free from all official inquisitorial interference however minimally intrusive (People v De Bour, 40 N.Y.2d 210). The indefiniteness of the term “unreasonable” militates against the construction of a general rule of universal application for determining the validity of official intrusions of this nature. Rather, the facts of each case must be examined and the essential inquiry is whether the police conduct may be characterized as reasonable, which in turn requires a balancing of the State’s interest in the inquiry at issue against the individual’s interest in being free from governmental interference (Delaware v Prouse, 440 U.S. 648 supra; People v De Bour, 40 N.Y.2d 210, supra).

We recognize that the obvious impact of stopping the progress of an automobile is more intrusive than the minimal intrusion involved in stopping a pedestrian (People v De Bour, supra; cf People v Cantor, 36 N.Y.2d 106). But this does not mean that the broad range of factors relevant for

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the purpose of constitutional examination can never be analyzed in a manner which leads to the ultimate conclusion that the State may stop an automobile and question the occupants for legitimate reasons.

The evidence as developed at the suppression hearing establishes that the determination of the police to stop Stephen CC.’s vehicle was made pursuant to a nonarbitrary, nondiscriminatory and uniform procedure, involving the stop of all vehicles located in the heavily burglarized area, in order to facilitate the concededly legitimate function of acquiring information regarding the recent burglaries. The remote, sparsely populated area subject to surveillance was too large to permit any meaningful utilization of traditional investigative procedures, and the roving patrol was limited to stopping vehicles located in the region in which there had been a large number of burglaries. Under these circumstances the momentary inconvenience inevitable in this police confrontation cannot be said to be unreasonable.

The record before us demonstrates that the stop of Stephen CC.’s vehicle was not undertaken with an intent to harass and was based on much more than the mere whim, caprice, or idle curiosity of government officials. Although not controlling, the elimination of the element of arbitrariness has been identified time and again as a critical factor in determining the reasonableness of official investigative activity of an intrusive nature (e.g., United States v Martinez-Fuerte, 428 U.S. 543, 554 People v De Bour, 40 N.Y.2d 210, supra; People v Ingle, 36 N.Y.2d 413, 419, supra). For this reason, too, the cases relied on by defendants, involving official intrusion of a random and discriminatory nature, are inapposite (United States v Brignoni-Ponce, 422 U.S. 873; People v Sobotker, 43 N.Y.2d 559). In fact, in United States v Martinez-Fuerte (428 U.S. 543 supra), the Supreme Court held that nonrandom checkpoint border stops do not violate the Fourth Amendment because they present no potential for unlimited interference with the use of the highways subject only to the unbridled discretion of government officials. For similar reasons we hold that the Fourth Amendment does not prohibit the police from employing

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a roving roadblock in a uniform and nondiscriminatory manner in a sparsely populated area in which there has been a recent series of burglaries.[*]

Defendants also contend that even if the initial stop and request for information were proper, the subsequent seizure of the pellet gun and speakers was prohibited. This claim is without merit. The rifle case was in plain view and Investigator Connors acted reasonably in seizing the case and examining its contents for the protection of himself and the other officers. The pellet gun was then identified as potential contraband and this fact, combined with the conflicting explanations offered by the occupants of the vehicle and Stephen CC.’s own statements about the speakers, also known to be reported stolen, supplied the necessary exigency and probable cause to believe that the vehicle contained additional contraband, thereby justifying the warrantless opening of the vehicle’s trunk compartment (United States v Ross, 456 US ___, 50 USLW 4580 [June 1, 1982]; People v Kreichman, 37 N.Y.2d 693).

We have reviewed the various other contentions raised by defendants on appeal and find that they, too, are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

MEYER, J. (dissenting).

The concept that the need to obtain information concerning numerous recent burglaries in a rural area authorizes an individual police officer to

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stop every vehicle in the area, without information about or observation of the vehicle or its occupants which gives rise to reasonable suspicion of criminal activity involving it or them, is so inconsistent with prior precedent under both the Federal and the State Constitutions, that I cannot accept it. As is apparent from the failure of the majority to make any reference to the conduct of defendants or the vehicle prior to the conceded seizure of the vehicle (at p 487) and its repeated reference to a nonarbitrary, nondiscriminatory and uniform procedure for stopping all vehicles (at pp 485, 488, 489), the majority’s ruling leaves to the unconstrained discretion of the officer in the field (provided only that he takes the same action with respect to every vehicle) action which has heretofore been acceptable only after judicial issuance of an area warrant or the administrative adoption of standards, guidelines or procedures promulgated by higher governmental officials than the police officer in the field, or by an exigency, such as the immediate necessity to blockade an area against the escape of a kidnapper with his victim. I, therefore, respectfully dissent.

Clear from the testimony of Troopers Connors and Greaves[*]
is it that Connors’ “plan” was to stop every vehicle in the area in order to inquire of any occupant who he was and what he was doing in the area, to see if he might be the burglar or have been a witness to any of the burglaries. Brown v Texas (443 U.S. 47, 52) flatly held that as to an individual whose activity was no different than that of others in the neighborhood, a stop the purpose of which was to ascertain identity and for which the officers lacked reasonable suspicion to believe the person stopped to be engaged or have been engaged in criminal conduct violated the Fourth Amendment (443 US, at p 53), notwithstanding that the neighborhood was one frequented by drug users (id., at p 52).

That the Supreme Court will not approve the procedure now sanctioned by the majority of this court is strongly suggested by its Per Curiam holding in Reid v Georgia (448 U.S. 438, 440), that: “The Fourth and Fourteenth Amendments’

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prohibition of searches and seizures that are not supported by some objective justification governs all seizures of the person, `including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721
(1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968).’ United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). While the Court has recognized that in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity” (italics supplied). Even though the purpose for stopping an individual to obtain identification is the prevention of crime, if there is no overweening emergency and the stop is not based on objective criteria for believing that the person stopped is involved in criminal activity, the risk of arbitrary and abusive police practices exceeds tolerable Fourth Amendment limits (Brown v Texas, 443 U.S. 47, 52, supra; but see United States v Martinez-Fuerte, 428 U.S. 543, 560, n 14). Some quantum of individualized suspicion is a prerequisite in order “to assure that the individual’s reasonable expectation of privacy is not `subject to the discretion of the official in the field'” (Delaware v Prouse, 440 U.S. 648, 655).

Absent an emergency of the type above referred to, only two exceptions to these requirements have been recognized by the Supreme Court. Without finally deciding the question, the court has in United States v Martinez-Fuerte (428 U.S. 543, 564-566 supra) and United States v Brignoni-Ponce (422 U.S. 873, 882, n 7, supra) discussed the possible availability of a judicially issued “area” warrant. It has also held that when the decision to “seize” is made not by the officer in the field but through a plan devised administratively and “embodying explicit, neutral limitations on the conduct of individual officers” (Brown v Texas, 443 U.S. 47, 51, supra) and the need for such stops in furtherance of the public interest has been demonstrated, checkpoint stops, as distinct from roving patrols of the type undertaken by Trooper Connors in the instant case, are permissible (Delaware v Prouse, 440 U.S. 648, 663, supra; United States v Martinez-Fuerte, 428 U.S. 543, 562, supra; United

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States v Brignoni-Ponce, 422 U.S. 873, 882-884, supra). Here not only was the procedure which the majority holds constitutional devised by the field officer alone, but also there has been no showing of the efficacy of that roving patrol procedure as compared with other available procedures to achieve the end for which instituted (cf. Delaware v Prouse, supra, at pp 658-661).

New York decisions provide no greater support for the majority’s conclusion. People v Schanbarger (24 N.Y.2d 288, 291) held a trooper’s testimony that at 3 A.M. he observed defendant in an area in which there had been “frequent burglaries” was “clearly insufficient to establish any basis for a reasonable
suspicion that the defendant might be engaged or was about to engage in crime” (italics in original). People v Cantor
(36 N.Y.2d 106, 112-114) held a seizure essentially similar to that which occurred in the present case to be without justification, the record being barren of specific and articulable facts amounting to “reasonable suspicion that such person is committing, has committed, or is about to commit a crime.”People v Ingle (36 N.Y.2d 413), as explained in People v Sobotker (43 N.Y.2d 559, 563), stressed that a stop of a motor vehicle on a public highway “is justified only when conducted pursuant to `nonarbitrary, nondiscriminatory, uniform’ highwa traffic procedures [italics added], or when there is specific cause or, at least, reasonable [italics in original] suspicion that a motorist is about to violate a law.” Sobotker’s holding was that the act of defendant and his companions in slowing down and glancing at first one bar and then another did not furnish reasonable suspicion for the stop of defendant’s vehicle even though a number of burglaries had recently been reported in the vicinity. And as recently as People v Howard (50 N.Y.2d 583, 590) we reaffirmed the Schanbarger and Sobotker rulings, while holding that the carrying by the male defendant of a woman’s vanity case and his furtive actions when he became aware that he was being observed provided sufficient basis for an inquiry, but no more. Here, of course, no action of the defendants provides any basis for inquiry much less the seizure of defendants and their vehicle, which the majority concedes (at p 487) occurred.

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The procedure followed in the present case was not a nonarbitrary, nondiscriminatory, uniform highway traffic procedure. It was, by the majority’s concession clearly a seizure, rather than a stop, and was justified neither by any emergency, nor reasonable suspicion concerning defendants, nor a judicially issued warrant nor an administratively approved checkpoint plan. It was, therefore, unconstitutional.

The order of the Appellate Division should be reversed, the convictions vacated, the evidence and statements suppressed and the indictment dismissed.

Chief Judge COOKE and Judges JASEN, GABRIELLI and JONES concur with Judge WACHTLER; Judge MEYER dissents and votes to reverse in a separate opinion in which Judge FUCHSBERG concurs.

Order affirmed.

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