Order of the Supreme Court, New York County, entered on August 27, 1970 which granted defendants' motion to suppress physical evidence reversed, on the law and on the facts, and the motion to suppress is denied. The defendants were indicted by a grand jury on May 29, 1969 and charged with the crime of possession of a weapon as a felony. Two fully loaded guns, .45 calibre and .38 calibre pistols, were found in their rented car, one under the driver's seat and the other on the floor, behind the right front seat. The court below well stated the problem. Shortly after midnight on September 27, 1968, in a high incidence crime area, four members of the Police Department, in an unmarked patrol car, noticed a parked rental car with the motor running and four males in the car. One of the detectives, Maxwell, the only witness, testified that he left the patrol car and approached the parked vehicle from the front end, when he saw a six-inch blade hunting knife being thrown from its rear window to the sidewalk (but not at him). When he received no reply to his inquiry as to who threw the knife, he ordered the occupants out of the car for his three companion officers to check them. At approximately the same time, Detective Maxwell searched the car and found the guns in question. The court below correctly determined that the inquiry and the frisk were justified (Code Crim. Pro., § 180-a; People v. Mack, 26 N.Y.2d 311; People v. Peters, 18 N.Y.2d 238; People v. Rivera, 14 N.Y.2d 441). While possession of the hunting knife would not be per se illegal, it could be a crime if "adapted for use primarily as a weapon." (Penal Law, § 265.15, subd. 4.) The police acted reasonably in inquiring, and they received no answer. It was logical that they proceed further. ( People v. Rosemond, 26 N.Y.2d 101.) In addition, the detective testified that when he came to the car he recognized one of the defendants, Philip Wu, from having previously arrested him. The court below sustained the objections to this answer, but the testimony should have been allowed as bearing on probable cause. When we come to the question of the search of the interior of the car, in conjunction with all of the foregoing, we do not have a situation such as in People v. Lewis ( 26 N.Y.2d 547), where the search of the car in the street occurred separate, and apart, and after the upstairs arrest in the police station. Both for the protection of the police in the course of doing their obvious duty, and due to the suspicious circumstances, the contemporaneous search here was justified. ( People v. McKnight, 26 N.Y.2d 1034; People v. Butterly, 25 N.Y.2d 159.)
Concur — Capozzoli, McGivern and Kupferman, JJ.; Stevens, P.J., and Tilzer, J., dissent in the following memorandum by Tilzer, J.:
I dissent and vote to affirm the order granting defendant's motion to suppress. I agree with the well-considered opinion by the trial court. The trial court while upholding the initial right to make the "immediate and summary street inquiry," ruled that such inquiry or investigation could not extend to a search of the interior of the car, which had been emptied of its occupants. The facts justify the trial court's conclusions. Although the initial inquiry and questioning of the defendant may be deemed proper, the full-scale search of the automobile which followed thereafter, constituted an illegal search. At the time the search was made there did not exist probable cause to believe that a crime had been or was about to be committed. While the throwing of the hunting knife from the car (concededly not thrown in the direction of the police officers), might have been a suspicious act, justifying the initial inquiry and direction to the defendants to leave the car, such conduct did not raise "the level of inference from suspicion to probable cause" ( People v. Corrado, 22 N.Y.2d 308, 313) justifying the search of the automobile. The possession of a hunting knife by itself, is concededly not a crime (Penal Law, § 265.05). Although it is a crime to possess such instrument if it were "adapted for use primarily as a weapon" (Penal Law, § 265.15, subd. 4), there was no showing or reason to believe that such knife was so adapted. That there was no probable cause to believe that the possession of the knife was unlawful is buttressed by the fact that the defendants were not arrested for nor charged with possession of the knife. Nor can the search be justified, as implied in the majority opinion of this court, as an attempt by the officer to insure his and his fellow officers' safety. The record shows that the search was made after the occupants, pursuant to the officer's direction, had vacated the car. And at the time of the search, the defendants were placed with their hands on the automobile and then on a nearby wall, at all times under guard by three armed officers. Under such circumstances it defies belief that the purpose of the search of the automobile was to provide for the safety of the officers. Indeed, the officer did not really testify that he believed that either he or his fellow officers' safety was in jeopardy at the time of the search. At most, the effect of his testimony was that in such situations he is always cautious and apprehensive. This apprehension of the officer, not supported by the objective facts, did not justify the search of the car. This conclusion and view of the evidence is further supported by the fact that the officers did not even feel it necessary to search the defendants until after they had completed the search of the automobile. The cases cited in the majority opinion are factually distinguishable and inapposite. People v. Mack ( 26 N.Y.2d 311) and People v. Rivera ( 14 N.Y.2d 441) involved a stop and frisk; a padding down of the defendant's clothing. The search herein went far beyond a padding down of one's clothing; it was a full scale search which must be predicated not merely on a reasonable suspicion (which would justify a frisk) but on probable cause (see People v. Peters, 18 N.Y.2d 238; People v. Corrado, supra). In People v. Rosemond ( 26 N.Y.2d 101) the court found that the initial inquiry was proper and in view of the answers given, in conjunction with the prior police observation, found that there was a reasonable ground for arrest, an element which as discussed above is clearly absent here. In People v. McKnight ( 26 N.Y.2d 1034) the officer reached into the car while he was interrogating the defendant, who was at that time seated in the car. For all the reasons above discussed, the order appealed from should be affirmed.
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