People v. Prochilo
People v. Prochilo
Opinion of the Court
In each of these three cases the defendant sought to suppress a handgun which had been taken from him by the police. The single issue presented—whether the action of the police officer was reasonable—"must necessarily turn on the facts in each individual case”. (People v Green, 35 NY2d 193, 195.) Because of the number of cases arising in somewhat comparable factual contexts, it may be useful to identify some general guidelines for the resolution of individual cases, with full recognition, however, that there can be no satisfactory frame of reference or template applicable in every instance. At the outset we observe that much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses (cf. People v Oden, 36 NY2d 382).
The ultimate determination will depend on a balancing of the legitimate interests of the defendants against the reasonableness and appropriateness of the police action. At least three aspects of each individual transaction should be considered. Was there proof of a describable object or of describable conduct that provides a reasonable basis for the police officer’s belief that the defendant had a gun in his possession? Was the manner of the officer’s approach to the defendant and the seizure of the gun from him reasonable in the circumstances? Was there evidence of probative worth that there had been a
We turn then to the three appeals which are now before us. In Prochilo, the denial of suppression by Supreme Court should be upheld. An experienced officer, on routine patrol in the 500 block of Flatbush Avenue in Brooklyn, from his vantage sitting in a parked automobile, observed defendant standing watching other officers interviewing passing pedestrians. From a distance of some seven or eight feet the officer saw defendant making continuing hand motions toward his side. The officer then noticed a bulge at defendant’s right hip. The officer left the automobile and as he approached defendant, who was still making the hand motions, observed through defendant’s tight outer clothing the complete outline of a revolver at his side. The officer then reached out and removed a .32 calibre revolver loaded with seven rounds of live ammunition from defendant’s waistband. The evidence warranted the officer’s acting on his belief that defendant had a gun.
In Goings, Supreme Court’s denial of a suppression should likewise be sustained. Officers in the Street Crime Unit were patrolling the Times Square area of New York City in a yellow taxicab. In the brightly lighted area of 42nd Street from the slowly moving cab they observed defendant walking along the sidewalk with a female companion. From a distance of some 20 feet one of the officers saw a bulge in defendant’s . right-hand jacket pocket which struck him immediately as having "the configuration of a handgun”, "the outline of a gun”. The cab parked and the officer approached defendant, displayed his shield and said that he would like to have a word with him. The officer then put his hand on defendant’s pocket, squeezed and felt what the officer believed was a gun. Defendant was arrested and a .32 calibre, short-barrel revolver in a partial brown leather holster with six rounds of live ammunition was taken from his pocket. This case approaches a true stop and frisk. In any event the evidence here, too, warranted the officer’s belief that defendant was carrying a gun.
In Bernard, by some contrast we conclude that the denial of
Accordingly, the order of the Appellate Division in Prochilo should be affirmed; that in Goings should be reversed and the
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.
In People v Prochilo: Order affirmed.
In People v Goings: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.
In People v Bernard: Order reversed, motion to suppress granted, judgment of conviction vacated and the indictment dismissed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.