Is Display of Weapons by Police Justified When They Have Credible Reason to Believe That Criminal Activity Is Taking Place ?
The People do not assert that the informant's tip provided probable cause to make an arrest, but assert there was no arrest, simply a "forcible stop," for which only "reasonable suspicion" was a necessary prerequisite. They cite numerous cases for the proposition that the employment of drawn guns by the police does not necessarily turn a street encounter into an arrest.
A review of these cases, however, clearly distinguishes them both factually and analytically from this case.
In People v. Murreld (185 AD2d 826), the officer testified at the suppression hearing that he observed a man draw a "large handgun" from his waistband and pass it to defendant.
The police drew their weapons to stop defendant.
The Court found that the officer's observation constituted a sufficient, objectively credible reason for him to believe that criminal activity was afoot, and justified his response.
In People v. Mateo (122 AD2d 229, 231), the Court said, "We discern no impropriety in the officers' display of their weapons during the stop, as the mere use of a weapon to effectuate a temporary detention is not improper where the circumstances indicate that criminal activity is afoot and the situation may be dangerous ... the defendant's suspicious conduct in watching the drug transaction while appearing to fidget with an item in his pocket, when combined with the reasonable inferences which the officers could draw from the surrounding circumstances and the judicially recognized fact that the drug trade often engenders situations of extreme violence and danger to law enforcement officers, justified the display of police weapons in this case."
In People v. Scott (197 AD2d 550), the police were in hot pursuit of armed bank robbery suspects pursuant to a radio dispatch. Given the information contained in the radio transmission they had received, and the defendant's attempt to flee by scaling a tall fence, the court found the officers acted properly in drawing their weapons, ordering the defendant off the fence, and asking him where he was going. the court also found it was not unreasonable upon grabbing the defendant as he came down the fence, to retrieve the hard object (two-way radio) he felt in his waistband.
In People v. Hardy (146 AD2d 800), a robbery and shooting had occurred five minutes earlier. the defendant and his companion met the description of the perpetrators and were within some two blocks of the crime when apprehended. Under the circumstances and in view of the furtive behavior of the two, the police had reasonable suspicion that defendant had committed, or was about to commit, a crime, justifying pursuit by the officers. "The arresting officer's drawing of his gun as he approached the defendant did not convert the confrontation into an arrest, since this was a reasonable self-protective measure in light of the officer's knowledge that at least one of the perpetrators of the crime under investigation was armed and dangerous." (Supra, at 801 [emphasis added].)
In People v. Chestnut (51 NY2d 14), police watched two men and a woman in a phone booth. One man left the booth, looked over his shoulder several times, turned and then looked back again toward the booth. Police next saw the man in a schoolyard hand something to another man. In the meantime, they received a report of a robbery that just occurred at a nearby intersection, which included a description of a man, armed with a silver gun. (The man they were watching fit the description.)