
    The People of the State of New York, Appellant, v. Miguel Rivera, Respondent.
    Argued April 27, 1964;
    decided July 10, 1964.
    
      
      Frank S. Hogan, District Attorney (Irving Lang and H. Richard Uviller of counsel), for appellant.
    I. The police have the right and duty to investigate suspicious activity even though probable cause for arrest does not exist. (United States v. Bonanno, 180 F. Supp. 71; People v. Martin, 45 Cal. 2d 755; People v. Michael, 45 Cal. 2d 751; People v. Bouchard, 161 Cal. App. 2d 302; United States v. Vita, 294 F. 2d 524; Morgan v. United States, 159 F. 2d 85; Kaiser v. United States, 60 F. 2d 410; Lee v. United States, 221 F. 2d 29; Ellison v. United States, 206 F. 2d 476; Fisher v. United States, 205 F. 2d 702, 346 U. S. 872; Rios v. United States, 364 U. S. 253; Henry v. United States, 361 U. S. 98; Gisske v. Sanders, 9 Cal. App. 13; People v. Cahan, 44 Cal. 2d 434; People v. Jackson, 164 Cal. App. 2d 759; People v. Simon, 45 Cal. 2d 645; Hargus v. State, 58 Okla. Or. 301.) II. The officer’s action in “ frisking ” defendant was reasonable and did no violence to the Constitution. (Go-Bart Go. v. United States, 282 U. S. 344; United States v. Rabinowitz, 339 U. S. 56; Harris v. United States, 331 U. S. 145; Carroll v. United States, 267 U. S. 132; Davis v. United States, 328 U. S. 582; Matthews v. Correa, 135 F. 2d 534; Agnello v. United States, 269 U. S. 20; McDonald v. United States, 335 U. S. 451; United States v. Lefkowitz, 285 U. S. 452; United States v. Kirschenblatt; 16 F. 2d 202; Amos v. United States, 255 U. S. 313; Abel v. United States, 362 U. S. 217; Johnson v. United States, 333 U. S. 10; United States v. Tee Ngee How, 105 F. Supp. 517; Wolf v. Colorado, 338 U. S. 25.)
    
      Gretchen White Oberman and Anthony F. Marra for respondent.
    I. A search is unreasonable if it is made without a warrant, without consent, and in the absence of a lawful arrest based upon probable cause to believe that defendant has committed a crime. (Ker v. California, 374 U. S. 23; People v. Loria, 10 N Y 2d 368; People v. O’Neill, 11 N Y 2d 148.) II. On the facts there was no probable cause to arrest. (Henry v. United States, 361 U. S. 98; United States v. Viale, 312 F. 2d 595; Seals v. United States, 325 F. 2d 1006; Coleman v. United States, 295 F. 2d 555.) III. There is no authority in law for permitting the police to search an individual who is legally and peaceably walking on the public streets where they do not have a warrant or have not made a legal arrest. (Johnson v. United States, 333 U. S. 10; Carroll v. United States, 267 U. S. 132; 
      People v. Simon, 45 Cal. 2d 645; Frank v. Maryland, 360 U. S. 369; Eaton v. Price, 364 U. S. 263; Murgia v. United States, 285 F. 2d 14; Plazola v. United States, 291 F. 2d 56; Contreras v. United States, 291 F. 2d 63; Wong Yang Sun v. McGrath, 339 U. S. 33; United States v. Ju Toy, 198 U. S. 253.) IV. As a matter of policy this court should not sanction the search of a man where the officer had no reason to believe that he was committing or had committed a crime. (Snead v. Bonnoil, 166 N. Y. 325; United States v. Bonanno, 180 F. Supp. 71; United States v. Bufalino, 285 F. 2d 408; Wong Sun v. United States, 371 U. S. 471; Ex parte Jackson, 96 U. S. 727.)
   Bergan, J.

This appeal involves the right of police to stop a person in the public street and question him under circumstances that would reasonably actuate investigation and inquiry. An additional and rather separable legal question arises on the right of police to “frisk” the person being questioned as an incident to the inquiry.

The ‘ ‘ stop and frisk ’ ’ amendment to the Code of Criminal Procedure (L. 1964, ch. 86, eff. July 1, 1964) adding new section 180-a to the code does not apply to this case which turns on events which occurred in May, 1962. Although similar general principles underlie both the new statute and the validity of police action involved in this case, the prescribed standards of initial action and the grounds and scope of the invasion of the person questioned are somewhat different as laid down in the statute and as posed by the record before us.

The new statute, for example, authorizes the police to stop and question any person in a public place ‘ whom he reasonably suspects is committing, has committed or is about to commit ’ ’ a felony or certain misdemeanors; and if the policeman ‘ ‘ reasonably suspects ” he himself is in danger he “may search such person for a dangerous weapon ” (Code Crim. Pro., § 180-a).

The case now presented does not precisely turn on these standards and, of course, neither the action of the police nor the proof in the judicial proceeding under review was directed toward compliance with a statute not then enacted.

The facts before us are these: On May 25, 1962 at 1:30 in the morning, Detective Bennett and two other detectives were on motor patrol near 7th Street and Avenue C in Manhattan. All were in plain clothes; the car was unmarked. Detective Bennett observed two men for about five minutes. They ‘‘ walked up in front, outside a bar and grill, stopped, looked in the window, continued to walk a few steps, came back, and looked in the window again ”.

The detective further testified: “ At that time the defendant looked in my direction, towards the car, said something to his friend, and they both started walking rapidly north on Avenue 0.” He described the area as a neighborhood in which We have quite a bit of crime * * * Muggings, stick-ups, assaults, larcenies, burglaries ”. After defendant and his companion started walking rapidly the detective got out of the car and said Hold it. This is the police.” He continued: “ And I approached the defendant, and I patted—for my own protection I patted the outside of his clothing. ’ ’ The statement, ‘ ‘ for my own protection ” was stricken, but it was later allowed in the record over objection.

The witness continued: “I frisked the defendant’s outside clothing and in the rear I felt a hard object that felt * * * like a weapon or gun * * * I removed a .22' caliber gun fully loaded.”

Defendant was thereupon arrested and indicted for criminally carrying a loaded pistol and for criminally possessing a pistol. A motion to suppress the evidence thus seized, including some bullets, was granted by the Supreme Court (38 Misc 2d 586). The Judge was of opinion he was required to do this by prior decisions of this court, notably People v. Chiagles (237 N. Y. 193 [1923]), People v. Loria (10 N Y 2d 368 [1961]), People v. O’Neill (11 N Y 2d 148 [1962]), and People v. Caliente (12 N Y 2d 89 [1962]). The Appellate Division affirmed unanimously without opinion (19 A D 2d 863).

The first problem is the authority of the police in the circumstances shown here to stop and question defendant. The validity of subsequent police action would in turn necessarily rest on the initial right to make the immediate and summary street inquiry.

The authority of the police to stop defendant and question Tiim in the circumstances shown is perfectly clear. The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off.

And the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed. It is enough for the purposes of this case to rule that the police were justified in the record as here developed in stopping and in questioning defendant.

Such a power and duty in the police to question a person as an incident to investigation seems to have been taken to be valid by this court almost as a matter of course in People v. Marendi (213 N. Y. 600, 609). In deciding the validity of the detention of a person by Federal officers for a period to determine whether or not an arrest should be made, Marendi was cited by Lumbard, Ch. J., as an example of a detention for inquiry not amounting to an arrest sanctioned in New York (United States v. Vita, 294 F. 2d 524, 530 [2d Cir., 1961]). In a somewhat similar direction is United States v. Bonanno (180 F. Supp. 71, 81-83), which, although reversed on other grounds sub nom. United States v. Bufalino (285 F. 2d 408, 410), was cited on this point with approval in Vita at page 530.

The validity of the initial stopping and inquiry by police under suspicious circumstances is implicit, too, in the recent decision of this court (People v. Entrialgo, 14 N Y 2d 733), where police inquiry was a necessary prelude to the development of the criminal case there considered.

Therefore, the facts developed in the record, e.g., the incidence of crime in the neighborhood, the peculiar approaches of defendant and his companion to the grill, the rapid leaving when the police were seen (even in plain clothes three men in a car watching could reasonably give alarm to a person alert to detection), all justified the police stopping defendant and questioning him.

Indeed, the right of the police to stop and question the defendant in such circumstances as those disclosed by this record was recognized at common law. It is extensively treated both by statute and by judicial decision as a reasonable and necessary police authority for the prevention of crime and the preservation of public order (2 Hawkins, Pleas of the Crown 122, 129 [6th ed., 1777]; 2 Hale, Pleas of the Crown 89, 96-97 [Amer. ed., 1847]; Lawrence v. Hedger, 3 Taunt. 14, 128 Eng. Rep. 6 [Common Pleas, 1810]; General Laws of B. I. [1956], tit. 12, ch. 7, § 12-7-1; Delaware Code Ann., tit. 11, § 1902; N. H. Rev. Laws, ch. 423, § 21 [1942]; Mass. Gen. Laws Ann., ch. 41, § 98 ; State v. Hatfield, 112 W. Va. 424 [1932]; City of Portland v. Goodwin, 187 Ore. 409 [1949]; Hargas v. State, 58 Okla. Or. 301 [1935]; Gisske v. Sanders, 9 Cal. App. 13 [1908]; People v. Jackson, 164 Cal. App. 2d 759 [1958]).

If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great. We think the frisk is a reasonable and constitutionally permissible precaution to minimize that danger. We ought not, in deciding what is reasonable, close our eyes to the actualities of street dangers in performing this kind of public duty.

A good argument is advanced by defendant that the exterior touching is a “search” in the full meaning of that term and carries against its validity all of the weight of judicial interdiction (People v. Loria and People v. O’Neill, supra). The frisk as it is described in the actual events that occurred in this case, however, and as it is generally understood in police usage, is a contact or patting of the outer clothing of a person to detect by the sense of touch if a concealed weapon is being carried.

It is something of an invasion of privacy; but so is the stopping of the person on the street in the first place something of an invasion of privacy. The frisk is less such invasion in degree than an initial full search of the person would be. It ought to be distinguishable also on pragmatic grounds from the degree of constitutional protection that would surround a full-blown search of the person.

That kind of search would usually require sufficient evidence of a committed crime to justify an arrest or be an incident to a lawful arrest (Harris v. United States, 331 U. S. 145 [1947]). In the end, as in most close issues of public policy, a court is called upon to strike a fair balance of competing interests.

And as the right to stop and inquire is to be justified for a cause less conclusive than that which would sustain an arrest, so the right to frisk may be justified as an incident to inquiry upon grounds of elemental safety and precaution which might not initially sustain a search. Ultimately the validity of the frisk narrows down to whether there is or is not a right by the police to touch the person questioned. The sense of exterior touch here involved is not very far different from the sense of sight or hearing—senses upon which police customarily act.

The fact that the police detective actually found a gun in defendant’s possession is neither decisive nor material to the constitutional point in issue. The question is not Avhat was ultimately found, but whether there was a right to find anything.

From the time the policeman, in the process of frisking defendant, touched the object, inferred by him correctly to be a gun, there was probable cause to arrest defendant and to proceed at once further to invade his clothing and take the gun.

The constitutional restriction is against unreasonable searches, not against all searches. And what is reasonable always involves a balancing of interests: here the security of the public order and the lives of the police are to be weighed against a minor inconvenience and petty indignity. A similar police procedure has long been sustained in California (People v. Martin, 46 Cal. 2d 106 [1956]).

The development of statutory implementation in the similarly grounded “ stop and frisk” statute has had some impressive acceptance in professional discussion (Kuh, Richard H., New York’s “Stop and Frisk” Law, N. Y. L. J., May 29, 1964, p. 4, col. 1; Siegel, William I., The New York “Frisk” and “ Knock-Not ” Statutes: Are They Constitutional?, 30 Brooklyn L. Rev. 274; Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 317-324), although there are dissenting views (e.g., The “ No-Knock ” and “ Stop and Frisk” Provisions of the New York Code of Criminal Procedure, 38 St. John’s L. Rev. 392, 398-405). See, also, in a direction favorable to such police action Specter, Arlen, Mapp v. Ohio: Pandora’s Problems for the Prosecutor, under section “Routine” Person Stops (111 U. of Pa. L. Rev. 4,19).

There are some interesting parallels in the actions of Federal authorities in searching the defendant in Abel v. United States (362 U. S. 217) during his administrative detention and the use of the evidence thus discovered in the subsequent criminal action. The conviction was affirmed. (See 30 U. of Cin. L. Rev. 229-232; also 349, The Power of Incidental Search; 74 Harv. L. Rev. 155; 59 Mich. L. Rev. 310.)

A State is not precluded from “ developing workable rules ” governing searches to meet ‘‘ the practical demands of effective criminal investigation and law enforcement ’ ” if the State does not violate the constitutional standard of what is reasonable (Ker v. California, 374 U. S. 23, 34).

The precautionary procedures followed by police in questioning this defendant are within the standard thus established by the Supreme Court. They meet the * ‘ practical demands of effective criminal investigation ”. And in our view the steps taken here were not unreasonable.

The order should be reversed and the motion to suppress denied.

Fuld, J.

(dissenting). I very much fear that, if this decision stands, a method will have been devised by which the Fourth Amendment’s prohibition against unreasonable searches may be evaded and the exclusionary rule of Mapp v. Ohio (367 U. S. 643), to a large extent, written off the books.

It must be noted at the outset that the question to which the majority primarily addresses itself—“ the right of police to stop a person in the public street and question him ” (opinion, p. 443)—is not the one the court is called upon to decide and it should not divert us from the question for decision. Simply put, it is whether it is constitutional for the police, without consent, without a search warrant and without probable cause, to conduct the sort of search of a person which the People term a “frisk” and seize evidence for use against him in a criminal prosecution. Significantly, neither People v. Marendi (213 N. Y. 600) nor any of the other decisions cited by the court (opinion, pp. 445-446) deals with this question and, indeed, with perhaps two or three exceptions, none of them have anything to do with the subject of search and seizure.

It is settled beyond dispute that a search, not authorized by consent or a search warrant, is deemed reasonable, in the constitutional sense, only if conducted as “incident to a lawful arrest ” (People v. Loria, 10 N Y 2d 368, 373; see, also, People v. O’Neill, 11 N Y 2d 148, 152; Rios v. United States, 364 U. S. 253, 261-262; Henry v. United States, 361 U. S. 98, 100 et seq.). And a lawful arrest, when not grounded on a warrant, requires, at the very least, “ reasonable cause for believing ” that a crime has been or is being committed and that the person arrested is the responsible party (Code Crim. Pro., § 177). From this, it follows that the lawfulness of any search carried on without a warrant depends “ on there being probable cause to make the arrest ”. (People v. Loria, 10 N Y 2d 368, 373, supra; see Wong Sun v. United States, 371 U. S. 471, 478, fn. 6.)

That two men are out walking late at night, that they stop outside a bar and grill, look in the window, continue to walk a few- steps, retrace their steps and again gaze into the window and then walk rapidly away, certainly does not furnish probable cause for believing that they have been or are engaged in criminal activity- and, indeed, the People recognize that this is so. In fact, they concede that, at the time the policeman stopped the defendant, he had no probable cause to arrest him and, accordingly, that any search of the defendant at that time could not have been justified as incident to a lawful arrest. But, the prosecution goes on to say, a " frisk ", not a search, was here involved and, consequently, " suspicion" on the part of the officer, not probable cause, was all that was required to justify his action.

This is nothing but an exercise in semantics; a search by any other name is still a search. Viewed in the perspective of constitutionally protected interests, a police tactic—call it a search or, more euphemistically, a “frisk”—which leads to discovery of a gun in an individual’s pocket by trespassing on his person is indisputably an invasion of privacy. A ‘ ‘ frisk ’ ’ is a species of search and, in point of fact, both decisions and dictionaries so define it. Thus, the Connecticut Supreme Court wrote that “The ‘ frisking ’ of the defendant, as he stood against the car, to see if he was armed was also a search of the person” (State v. Collins, 150 Conn. 488, 491) and Webster’s New International Dictionary ([2d ed.], p. 1010) likewise indicates that to “frisk” means to “search (a person), as for concealed weapons, stolen articles, etc., esp. after arrest, as by running the hand rapidly over the clothing, through the pockets, etc.”

For myself, I am not persuaded that a frisk is as slight an affront to privacy and liberty as my brethren make it out to be. Free men should no more be subject to having the police run their hands over their pockets than through them. Neither the Fourth Amendment nor, for that matter, the common law of tort distinguishes, as does the majority, between a cursory search and a more elaborate one. In both instances, it is the slightest touching which is condemned, and the reason for this is that the insult to individuality, to individual liberty, is as grave and as objectionable in the one case as in the other.

The fact that a weapon was found on the defendant’s person may no more be relied upon to justify a frisk than an arrest. Police conduct, it has been pointedly remarked, ‘ ‘ is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest” (Henry v. United States, 361 U. S. 98, 104, supra) —• or, I would add, easy search. In short, then, if, at the time the police officer approached the two men, he had no probable cause to believe that a crime had been or was being committed, his act of running his hands over the clothing and body of the defendant Rivera cannot be considered reasonable by constitutional standards and, if the exclusionary rule mandated by the decision in Mapp (367 U. S. 643, supra) is not to be circumvented, articles thus uncovered cannot be received in evidence.

Rivera, it may be urged, deserves little consideration but we must not forget that the principle we lay down in his case will apply to all, that the innocent and law abiding, as well as the culpable, will be subject to the indignity of a frisk. Highly developed though a policeman’s instinct for crime detection may be, it is still far from infallible and he cannot be expected to unerringly select, and frisk, only the gun-carrying wrongdoer. We all foresake a goodly measure of our freedom if we must walk the streets with the knowledge that we may, at any moment, be frisked because an overly zealous or inexperienced police officer feels that we are acting suspiciously.

The possibility of abuse looms too large to permit an invasion of privacy or an infringement of liberty to turn “ on the subjective state of mind of the policeman.” (Report and Recommendations of the District of Columbia Commissioners’ Committee on Police Arrests for Investigation [1962], p. 32.) The Constitution prohibits unreasonable searches and seizures, and reliance upon ‘‘any standard less than ‘ probable cause ’ is ‘ unreasonable ’ in the constitutional sense” (Report and Recommendations, lac. cit., p. 33). We should not, indeed we may not, permit a policeman’s purely subjective feeling — about the possibility of danger to himself — to replace that standard and become the controlling measure of an individual’s constitutional rights.

I have no doubt that the police, in the proper performance of their duties, have a responsibility to investigate suspicious activity and that one permissible form of investigation is the temporary stopping and questioning of individuals so engaged. (See, e.g., Ellis v. United States, 264 P. 2d 372, cert. den. 359 U. S. 998; Green v. United States, 259 P. 2d 180, cert. den. 359 U. S. 917.) This power to investigate, however, does not give a policeman license to violate the individual’s constitutional right not to be searched except on probable cause. In other words, although “ suspicion” may well be sufficient basis for a policeman to stop and question an individual, it furnishes no ground for an examination of his person since, as Justice Douglas reminds us, ‘‘ There is no crime known as suspicion ’ ’ ’ and the Fourth Amendment allows searches ‘‘ only for ‘ probable cause’”. (Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L. J. 1, 12, 13.)

I cannot subscribe to the court’s view that the legality of the frisk (or search) must necessarily be granted once the right of the officer to stop and question is recognized. This is neither good logic nor sound constitutional policy. Both factually and constitutionally, inquiry is distinguishable from search. While the police may properly inquire into suspicious or unusual activity, they may not, in light of the line drawn by the Constitution’s prohibition against unreasonable searches, go so far as to search a person unless and until their subjective “ suspicion ” is objectified into “ probable cause ”. To say, as the majority does, that there are risks inherent in the investigatory activities undertaken by the police is to state the obvious. But it is quite another thing to conclude from this fact alone that the police are privileged to “frisk” every suspicious looking individual, in direct contravention of an explicit constitutional prohibition.

The courts may not, of course, close their eyes to the hazards run by sincere and dedicated policemen in their efforts to combat crime. Their exposure to danger should be minimized and every effort made to assure their self-protection. This worthy objective should not, however, lead us to sanction procedures which offend against basic constitutional guarantees, for, as the Supreme 'Court observed in Spano v. New York (360 U. S. 315, 320-321), “ in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves ’ ’. The loss of liberty entailed in authorizing a species of search on the basis of mere suspicion is too high a price to pay for the small measure of added security it promises. Other methods are available whereby the police may protect themselves while carrying on their investigations, other procedures which, if utilized, will safeguard the police and the community from the criminal minority without destroying the sense of dignity and freedom with which the law-abiding majority walk the streets.

To what end security if liberty be' sacrificed as its price Í The privacy which the Constitution guarantees is assured to the best of men only if it is vouchsafed to the worst, however distasteful that may be. Thus, although the defendant before us undoubtedly merits the punishment provided by law for carrying a concealed weapon, I venture that it is better that he go free than that we sanction a significant inroad on the rights of all our citizens.

The order appealed from should be affirmed.

Chief Judge Desmond and Judges Dye, Van Voorhis, Burke and Scileppi concur with Judge Bergan; Judge Fuld dissents in a separate opinion.

Order reversed and matter remitted to the Supreme Court, New York County, for further proceedings in accordance with the opinion herein. 
      
      . Since it is no-t here decisive of the issue of the legality of the search, nothing is to be gained by considering whether the defendant was, at the time of the frisk, merely being “ detained ” by the detective or whether the latter’s command, “ Hold it. This is the police ”, taken with the defendant’s submission to the order, amounted to an “arrest”. (Code Crim. Pro., §§ 167, 171; see People v. Chiagles, 237 N. Y. 193, 197; United States v. Scott, 149 F. Supp. 837; see, also, Sobel, Law of Search & Seizure [1962], p. 64; Collings, Toward Workable Rules of Search and Seizure — An Amicus Curiae Brief, 50 Cal. L. Rev. 421, 435-437.)
     