Rehearing Denied Oct. 3, 1977.
The petition for a writ of certiorari is denied.
See 434 U.S. 881.
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr.
Justice REHNQUIST join, dissenting.
Shortly after midnight on September 13, 1970, Jessee Carter, an
off- duty New York City police officer, was driving through the
South Jamaica section of Queens on his way home from a movie. His
suspicion was aroused when he observed two individuals, later
identified as respondent and a companion, 'crouched' behind a
parked automobile in a partially deserted, unfenced hotel parking
lot. The two were approximately 15 to 20 feet from Carter, and he
noted that respondent was holding an object in his upraised hand.
Respondent's companion was also holding an object, which Carter saw
him
Page 431 U.S.
943 , 944
place in his rear trouser pocket. Carter was unable to identify
either of these objects.
The officer then drove his automobile onto the parking lot,
stopping approximately two car lengths from the suspects. He turned
off his headlights and observed them briefly. He then turned his
lights back on and drove his car towards the men. He jumped from
the car with his badge in one hand and his drawn revolver in the
other, and shouted 'freeze police officer.'
Respondent rose from his crouched position, and Carter saw him
drop the object he had been holding which turned out to be a fully
loaded .38 caliber revolver. Officer Carter immediately placed the
men under arrest, and proceeded to search them. He found six .38
caliber bullets in respondent's pocket and a loaded revolver in the
pocket of his companion. Respondent was charged with possession of
weapons and dangerous instruments and appliances. His motion to
suppress the handgun as evidence was denied by the New York Supreme
Court Criminal Term. Respondent then pled guilty to the charge and
as permitted by New York law, 1 he appealed his conviction,
charging that the motion to suppress should have been granted.
The Supreme Court Appellate Division affirmed respondent's
conviction in an opinion joined by four Justices. One Justice
dissented. The court first determined that Officer Carter 'was
clearly possessed of such information as would warrant a 'founded
suspicion' that criminal activity was 'afoot'.' People v. Earl, 50
A.D.2d 289, 293, 377 N.Y.S.2d 649, 653 ( 1975). He was therefore
held entitled to make further inquiry and to take such precautions
as reasonably necessary for his safety. The court further held that
Officer Carter's action exhibiting his badge and gun and asserting
his authority was reasonable under the circumstances. Accordingly,
it concluded that respondent's handgun was properly seized and
Page 431 U.S.
943 , 945
that the trial court had correctly denied respondent's motion to
suppress.
The New York Court of Appeals reversed the conviction, with two
Judges dissenting. 40 N.Y.2d 941, 390 N.Y.S.2d 412, 358 N.E.2d 1037
(1976). In a brief unsigned order it adopted the opinion of the
dissenting member of the Appellate Division. [
Footnote 2] The State filed a timely petition for
writ of certiorari, seeking review of the Court of Appeals'
decision.
In Terry v. Ohio,
392 U.S. 1 (1968), in an
opinion by Mr. Chief Justice Warren, the Court recognized that a
police officer has limited authority to make investigatory stops of
individuals engaged in suspicious behavior which does not rise to
the level of probable cause to make an arrest. [
Footnote 3] Id., at 22. The Terry Court further
held that, in conducting the investigation, the officer could
properly take whatever action was reasonably necessary to assure
his safety and the safety of others. The propriety of such police
conduct 'necessarily swift action predicated upon the on-the-spot
observation of the officer' is not be be tested by a rigid probable
cause standard, but rather by the 'Fourth Amendment's general
proscription against unreasonable searches and seizures.' Id., at
20 ( footnote omitted).
Terry establishes a two-pronged test for determining the
propriety of this type of conduct: '(1) whether the officer's
action was justified at its inception, and (2) whether it was
reasonably related in scope to the circumstances which justi-
Page 431 U.S.
943 , 946
fied the interference in the first place.' Ibid. Under the first
prong of the Terry analysis, it is clear that Officer Carter
possessed sufficient facts 'to conclude in light of his experience
that criminal activity may be afoot.' Id., at 30. When the officer
observed two individuals in a semideserted hotel parking lot
'crouching' behind an automobile holding objects which could well
have been weapons, he would have been grossly derelict in his duty
to ignore what he saw. [
Footnote
4] In that setting New York City at midnight it would have been
irrational for a police officer to fail to make further inquiry
since the conduct of the two men gave rise to a reasonable
suspicion that they might be involved in illegal activity.
[
Footnote 5] The closeup
observation by the officer neither confirmed his suspicions nor
removed them. In light of these 'specific and articulable facts,'
Terry, at 21, and 'the specific reasonable inferences which
(Officer Carter) was entitled to draw from the facts in light of
his experience,' Id., at 27, it was entirely proper to conduct an
investigatory stop to determine whether criminal activity was
afoot. As Mr. Chief Justice Warren observed as to an analogous
'suspicious' situation in Terry: 'It would have been poor police
work indeed . . . to have failed to investigate respondent's
behavior further.' Id., at 23.
Page 431 U.S.
943 , 947
Once the officer approached the suspects for investigatory
purposes, there came into play 'the more immediate interest of the
police officer in taking steps to assure himself that the person
with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him.' Id., adams v.
Williams,
407 U.S.
143, 146 (1972). The Terry opinion stated:
'When an officer is justified in
believing that the individual whose behavior he is investigating at
close range is armed and presently dangerous to the officer or to
others, it would appear to be clearly unreasonable to deny the
officer the power to take necessary measures to determine whether
the person is in fact carrying a weapon and to neutralize the
threat of physical harm.' 392 U.S., at 24.
The defensive measure sanctioned in Terry was a pat-down 'frisk'
of the suspect, i. e., a detailed manual exterior probe of the
subject's clothing and body, to assure that a weapon was not being
concealed and to remove any weapon found. Mr. Chief Justice
Warren's opinion for the Court acknowledged this was 'a serious
intrusion upon the sanctity of the person, which may inflict great
indignity and arouse strong resentment,' Id., at 17. Nevertheless,
the Court held this to be a reasonable response to the danger
inherent in a face-to-face encounter with a potentially armed and
dangerous individual in the narrowly defined circumstances
postulated in Terry. Id., at 27.6
Of course, Officer Carter's conduct in this case was
'intrusive.' An individual confronted in the middle of the
Page 431 U.S.
943 , 948
night by a police officer holding a handgun and ordering him to
'freeze' suffers an affront to his liberty and dignity interests
protected by the Fourth Amendment. But this is precisely what the
Court balanced in Terry. The intrusion here was plainly within the
contemplation of Terry and was justified by the circumstances
confronting Officer Carter. Traveling in his private car, not
equipped with a radio phone, he faced two possibly armed persons in
a deserted parking lot, in the middle of the night. Under these
circumstances it would have been foolhardy for Officer Carter to
act less decisively than he did.
The holding of the New York Court of Appeals puts an officer of
the law in Carter's position to a difficult choice indeed. He must
either ignore what he sees and what his training and experience
tell him he should investigate, thereby permitting the possible
completion of criminal conduct for which the suspects may be
preparing, or he may approach the suspect without preparing for the
very danger which materialized here, thereby risking his life.
[
Footnote 7] The holding of the
Court in Terry introduced a long overdue element of common sense
and rationality into this area of the law, it ought to be followed
here. Surely, the Constitution does not require police officers to
make the unhappy choice between dereliction of duty and risk of
death. With the dissent of the New York Court of Appeals, I 'do not
believe that the Fourth Amendment's proscription against
unreasonable searches and seizures requires officers in Carter's
stead to risk their lives
Page 431 U.S.
943 , 949
needlessly in the performance of their duty.' 50 A.D.2d, at 294,
377 N.Y.S.2d at 654.
This Court cannot, of course, give plenary consideration to
every erroneous holding, and I have no doubt that limitations of
time and a crowded docket weigh heavily in the decision denying
review. In my view, however, where the departure from prior law is
as clear as in the instant case, and where the issue is so squarely
presented by the petition for certiorari and the response, the
matter could be easily resolved in a summary fashion, without the
necessity for lengthy briefing and oral argument. See, e. g.,
United States v. Morrison,
429 U.S. 1 (1976). I would
therefore grant the petition for certiorari, and reverse the
judgment because on the face of the record the Court of Appeals has
clearly failed to follow the holding in Terry and other relevant
cases.
Footnotes
Footnote 1 See generally
Lefkowitz v. Newsome,
420 U.S. 283 (1975).
Footnote 2 References to the
New York Court of Appeals' opinion will therefore be understood to
refer to the dissenting opinion in the Appellate Division. The New
York Court of Appeals' final action was clearly based on federal
constitutional law not state law.
Footnote 3 This rationale
was further elaborated in Adams v. Williams,
407 U.S.
143, 145 (1972), where we stated:
'The Fourth Amendment does not
require a policeman who lacks the precise level of information
necessary for probable cause to arrest to simply shrug his
shoulders and allow a crime to occur or a criminal to
escape.'
Footnote 4 As stated by Mr.
Justice STEWART, '(a) policeman has a duty to investigate
suspicious circumstances, and the circumstance of a person
wandering the streets late at night without apparent lawful
business may often present the occasion for police inquiry.' Palmer
v. City of Euclid,
402 U.S.
544, 546 (1971) (STEWART, J., concurring).
Footnote 5 The opinion of
the New York court suggests that respondent might have been holding
a tire iron and was crouched behind the automobile because he was
in the process of changing a 'flat.' However, as the Appellate
Division majority pointed out, '(t)he record fails to reveal those
normal incidents of everyday life which we have come to associate
with changing a tire (i. e., the raised or lopsided car, the
bumperjack, and the upraised trunklid).' 50 A.D.2d, at 293, 377
N.Y.S.2d, at 654.
Footnote 6 The Court stated
in Terry:
'The officer need not be absolutely
certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.' 392
U.S., at 27. That test is amply met in the case before us.
Footnote 7 Respondent
suggests that, 'Of course, Officer Carter, like any other citizen,
would have had the right to satisfy his curiosity by addressing
questions to defendant.' Response to petn. for cert., at 6. Of
course, no citizen or policeman in his right mind would have
approached respondent and his companion as he would a tourist in
Times Square at high noon merely to satisfy idle curiosity. Officer
Carter, unlike ordinary citizens, had a sworn duty to investigate
such suspicious behavior, and was acting pursuant to such duty when
he approached the suspects. His conduct should be commended, not
reproached.
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