People v. Oeller

—Judgment of the Supreme Court, New York County (Nicholas Figueroa, J.), rendered August 9, 1990, after jury trial, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a predicate felony offender, to a term of two to four years, is affirmed. While stopped at the corner of 119th Street and Second Avenue in Manhattan, at a red light, Officer John Brown and Officer Stephen Sanders observed defendant, a white male, pass an amount of money to an unapprehended black male and receive an "item” in exchange which he placed in his right hand coat pocket. Officer Brown testified that in four years of service, he personally had made up to 25 arrests and assisted in over 100 others at that location and that 90% of those arrests involved narcotics. The officers, believing they had witnessed yet another drug transaction, approached the two men for further inquiry, Officer Brown exiting the car and walking toward the men and Officer Sanders driving the car around the corner. As Officer Brown approached the men, the black male, who was facing in his direction, turned away as he saw Brown approaching while defendant turned around and faced Officer Brown. Fearing the defendant had a gun in his pocket, the officer ordered him to remove his hands from his pockets. When the defendant did so, he was holding several vials of cocaine in his right hand. Officer Sanders had approached at this time, noticed defendant’s left hand in his coat pocket, and as a precautionary measure, since he was also fearful that defendant possessed a weapon, drew his gun and directed defendant to remove his hand from his pocket. Officer Brown arrested defendant and in a search thereafter found additional vials of cocaine in defendant’s pocket. Contrary to the position of the defendant, which the dissent adopts, the police had more than a "founded suspicion that criminal activity [was] afoot” (People v De Bour, 40 NY2d 210, 223). The police, in an area personally known to them as a high drug area, observed defendant give money in exchange for an "item”. Thus, the police had a reasonable suspicion [356] that defendant had committed, was committing or was about to commit a crime and, therefore, they had the right to forcibly stop and detain him (supra). In any event, even assuming, arguendo, that the police only had a common-law right of inquiry, upon their approach, the other participant in the drug transaction turned and left before the police could question either. This flight, whether at a walk or faster pace, only served to heighten the police suspicion. This, combined with the exchange of currency for an object "in an area rampant with narcotics activity”, "negat[ed] all but the most implausible explanations for the transaction” (People v McRay, 51 NY2d 594, 604). When the police approached to question defendant, they had the right at the very least to ask him to remove his hands from his coat pockets. As Officer Brown testified in response to defense questioning: "It is very common for people to carry guns in their coat pockets, especially when you are dealing with drugs. A lot of people enter drug transactions and are robbed subsequently. I don’t want to take the chance of him having a gun in his pocket and taking it out and shooting myself and my partner or anybody else going by”. There was no frisk or search of defendant by the officer, but the intrusion was extremely minimal, a simple request to defendant to remove his hands from his pockets (see, People v De Bour, supra, at 221 [a simple request that De Bour open his jacket]). When, subsequently, the defendant removed his hand with vials of cocaine held in it, the police had probable cause to arrest him. Finally, the suppression court did not find and the record does not show that either Officer Brown or Officer Sanders used "coercion or intimidation” in either the initial approach or during the unfolding scenario, as asserted by the dissent. While Officer Sanders did draw his weapon, he also did not seek to frisk or search defendant but repeated the admonition given by Officer Brown for defendant to take his hands out of his pockets. Neither officer asked the defendant to take any contraband out of his pocket. Both simply acted to insure their safety. "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, 51 NY2d 267, 271.) Such a minimal intrusion upon defendant’s privacy "was devoid of harassment or intimidation” (People v De Bour, supra, at 220; see also, People v Diaz, 80 NY2d 950 [officer held his hand on bolstered gun as he approached to request information]). Concur — Wallach, Ross and Asch, JJ.