NEW YORK COURT OF APPEALS
People v. Howard
50 NY 2d 583 (1980)
Meyer, J.
An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pursuers in the basement of a building and while looking for a way out of the basement drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make a warrantless search and seizure permissible. The order of the Appellate Division should, therefore, be reversed, the motion to suppress should be granted and the indictment should be dismissed.
At about 1 p.m., in broad daylight, on University Avenue in the vicinity of Father Seizure Place (an area which had a high incidence of burglaries), the officers (in plain clothes and an unmarked car) observed Howard crossing University Avenue diagonally in a southeasterly direction. Their curiosity was aroused by the fact that defendant was carrying what appeared to be a woman’s vanity case. As they passed the defendant, both officers (Hanley and Brosnan) saw him look over his shoulder in their direction, in a manner described by Officer Hanley as “furtive”. Defendant looked in the direction of the car two or three more times until he reached the center of University Avenue. Then as Hanley pulled the car to the right side of the street, defendant reversed direction, walked to the west side of the street and proceeded south on the sidewalk.
The police car made a U-turn and once again the officers saw defendant look in their direction. As the car neared him, defendant’s pace quickened. As the car came parallel with the defendant, Officer Brosnan displayed his police shield and said “Police Officer. I would like to speak to your.” Though looking directly at the officers, defendant ignored them and continued walking south. The police followed and at the next opening between parked cars, Brosnan repeated the same words, and began to get out of the car. Defendant, without saying anything, started to run, holding the vanity case to his chest like a football would be held. The officers pursued and were joined in the chase by Victor Dragaj, a college freshman.
Defendant proceeded over an iron fence through an alleyway and into the basement of the building, at which point, pursued by Dragaj, defendant threw the vanity case into a pile of junk in the corner and sought but was unable to escape through a door which was locked or a small window on the far side of the room. Dragaj restrained the defendant and was joined by Officer Brosnan, who asked defendant why he had tried to get away. About 25 seconds later they were joined by Officer Hanley, who identified himself as a policeman and asked about the vanity case or box. Dragaj pointed to it and Hanley retrieved it from the rubbish pile, which was beyond defendant’s reach, and immediately opened it, revealing a .38 caliber revolver and heroin glassine envelopes. Hanley then placed defendant under formal arrest.
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We have no difficulty in concluding that the officers’ [request for information] from defendant was justified under those criteria. In an area beset by a high burglary rate defendant was seen carrying a woman’s vanity case by the officers, one of whom testified that it was not uncommon for a burglar to carry away loot in his victim’s luggage. Considering those facts, together with defendant’s numerous glances at the officer’s car, his change of direction and his quickened pace, we conclude that, though the carrying by a man of a woman’s purse does not constitute probable cause (People v. Davis, 36 NY2d 280, cert den 423 US 876) and though defendant could, the car being unmarked and the officers in plainclothes, have acted evasively out of fear for his own safety, the circumstances constituted a sufficient basis for the inquiry made, which of itself constituted no more than a minor inconvenience to defendant.
There was therefore, basis for questioning the defendant, but there was nothing that made permissible any greater level of intrusion. The officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal and were confronted only by facts, susceptible of innocent interpretation (State v. Saia, 302 So 2d 869 (La), cert den 420 US 1008).
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Presence in the area of “frequent burglaries” was an insufficient basis (People v. Schanbarger, 24 NY2d 288, 291); in this day of unisex haircuts and clothing carrying of a woman’s vanity case was at best equivocal (People v. Davis, 36 NY2d 280, cert den 423 US 876, supra; cf. People v. Larkin, 21 AD2d 902).
But while the police had the right to make the inquiry, defendant had a constitutional right not to respond. This is so both because the Fifth Amendment to the United States Constitution and its State counterpart (New York Const. art I, Section 6) permitted him to remain silent and because the Fourth Amendment and its State counterpart (Art I, Section 12) protect him from detention amounting to seizure unless there is probable cause. As Mr. Justice BRANDEIS put it long ago in Olmstead v. United States (277 US 438, 478), defendant had “the right to be let alone.”
