# Sibron v. New York

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## Concurring Opinions

    Douglas
    White
    Fortas
    Harlan
    Black
United States Supreme Court
392 U.S. 40
Sibron v. New York
Appeal from the Court of Appeals of New York
No. 63. Argued: December 11-12, 1967 --- Decided: June 10, 1968
In No. 63, a New York police officer on patrol observed during an eight-hour period a man (appellant Sibron), whom he did not know and had no information about, in conversation with six or eight persons whom the officer knew as narcotics addicts. Later the officer saw Sibron in a restaurant with three more known addicts. The officer on none of these occasions overheard any conversation or saw anything pass between Sibron and the others. Later the officer ordered Sibron outside the restaurant, where the officer said, "You know what I am after." When Sibron reached into his pocket the officer reached into the same pocket and found some envelopes containing heroin. Sibron was charged with the unlawful possession of the heroin. The trial court rejected Sibron's motion to suppress the heroin as illegally seized, holding that the officer had probable cause to make the arrest and to seize the heroin. Thereafter Sibron pleaded guilty, preserving his right to appeal the evidentiary hearing. Sibron, who was precluded from obtaining bail pending appeal, completed service of his six-month sentence roughly two months before it was physically possible for him to present his case on appeal. His conviction was affirmed by the intermediate state appellate court and then by the New York Court of Appeals. In this Court the State initially sought to justify the search on the basis of New York's "stop-and-frisk" law, N.Y. Code Crim. Proc. § 180-a, which the New York Court of Appeals apparently viewed as authorizing the search. That law provides that a "police officer may stop any person abroad in a public place whom he reasonably suspects is committing..." certain crimes "and may demand... his name, address and an explanation of his actions," and when the officer "suspects that he is in danger... he may search such person for a dangerous weapon." After this Court noted probable jurisdiction the county District Attorney confessed error.
In No. 74, an officer, at home in the apartment where he had lived for 12 years, heard a noise at the door. Through the peephole he saw two strangers (appellant Peters and another) tiptoeing furtively about the hallway. He called the police, dressed, and armed himself with his service revolver. He observed the two still engaged in suspicious maneuvers and, believing that they were attempting a burglary, the officer pursued them, catching Peters by the collar in the apartment hallway. Peters said that he had been visiting a girl friend, whom he declined to identify. The officer patted Peters down for weapons and discovered a hard object which he thought might be a knife but which turned out to be a container with burglar's tools, for the possession of which Peters was later charged. The trial court denied Peters' motion to suppress that evidence, refusing to credit Peters' testimony that he had been visiting a girl friend and finding that the officer had the requisite "reasonable suspicion" under § 180-a to stop and question Peters and to "frisk" him for a dangerous weapon in the apartment hallway, which the court found was a "public place," within the meaning of the statute. Peters then pleaded guilty, preserving his right to appeal the rejection of his motion to suppress. The intermediate appellate court affirmed, as did the New York Court of Appeals, which held the search justified under § 180-a. The parties on both sides contend that the principal issue in both cases is the constitutionality of § 180-a "on its face."
Held:
    1. Sibron's completion of service of his sentence does not moot his appeal. Pp. 50-58.
       (a) A State may not effectively deny a convict access to its appellate courts until his release and then argue that his case has been mooted by his failure to do what it has prevented him from doing. P. 52.
       (b) Even though Sibron was a multiple offender he "had a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." Fiswick v. United States, 329 U.S. 211 (1946), followed; St. Pierre v. United States, 319 U.S. 41 (1943), qualified. Pp. 55-58.
    2. A confession of error, though entitled to great weight, does not relieve this Court from making its own examination of the record of a case where a conviction has been erroneously obtained, particularly where a judgment of the State's highest court interpreting a state statute is challenged on constitutional grounds and the confession of error has been made by a local official rather than by an official authorized to speak for the State as a whole. Pp. 58-59.
    3. Since the question in this Court is not whether the search (or seizure) was authorized by § 180-a, but whether it was reasonable under the Fourth Amendment, the Court does not pass upon the facial constitutionality of the statute. Pp. 59-62.
    4. In No. 63, the heroin is illegally seized and therefore inadmissible in evidence. Pp. 62-66.
       (a) The search of Sibron cannot be justified as incident to a lawful arrest since no probable cause existed before the search. Pp. 62-63.
       (b) There were no adequate grounds for the officer to search Sibron for weapons since the officer had no reason to believe that Sibron was armed and dangerous; and even if there arguably had been such a justification, there was no initial limited exploration for arms before the officer thrust his hand into Sibron's pocket. Terry v. Ohio, ante, p. 1, distinguished. Pp. 63-65.
    5. In No. 74, the search was reasonable and the evidence seized was admissible. Pp. 66-67.
       (a) The search of Peters was incident to a lawful arrest under the Fourth Amendment. Pp. 66-67.
       (b) The "arrest" of Peters had taken place before the search, and after the arrest the officer had authority to search Peters. P. 67.
       (c) The incident search, which was limited in scope, was justified by the need to seize weapons as well as the need to prevent destruction of evidence of the crime. P. 67.
No. 63, 18 N.Y. 2d 603, 219 N.E. 2d 196, reversed; No. 74, 18 N.Y. 2d 238, 219 N.E. 595, affirmed.
Kalman Finkel and Gretchen White Oberman argued the cause and filed briefs for appellant in No. 63. Robert Stuart Friedman argued the cause and filed a brief for appellant in No. 74.
William I. Siegel argued the cause for appellee in No. 63. With him on the brief was Aaron E. Koota. James J. Duggan argued the cause for appellee in No. 74. With him on the briefs was Leonard Rubenfeld.
Michael Juviler argued the cause for the District Attorney of New York County, as amicus curiae, in No. 63. With him on the brief filed in both cases were Frank S. Hogan and H. Richard Uviller. Mr. Siegel argued the cause for the District Attorney of Kings County, as amicus curiae, in No. 74.
Briefs of amici curiae, urging reversal in both cases, were filed by Jack Greenberg, James' M. Nabrit III, Michael Meltner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.
Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, filed a brief for the Attorney General of New York, as amicus curiae, urging affirmance in both cases.

## Notes

* ↑ Together with No. 74, Peters v. New York, argued on December 12, 1967, also on appeal from the same court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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