On a spring evening, New York City Police Sgt. Daniel Cotter and his partner, in civilian clothes and in an unmarked car, were looking for signs of criminality in Harlem. Cotter is a 15- year veteran of the force, having served eight of those years with street-crime units in Harlem.
At 120th Street, Cotter, as he later testified, saw a man behaving unusually. "He was stopping and going. Walking and stopping. Looking around. Looking behind. Looking across the street. Down the block . . . He wasn't doing anything wrong except he was a little out of the ordinary."
It may have been possible, the officer said later, that the man thought he was being followed. After all, he was in a neighborhood designated by the police department as a "high-crime area." But there was something else. The man was wearing a "beige three-quarter length raincoat. Kind of wrinkled up and dirty." And the right-hand side of that raincoat was hanging lower than the left. It looked as if an "object" of some "bulk" and "weight" was in that right-hand pocket.
Sgt. Cotter, badge in hand, approached the man and asked him what he had in this pocket. The answer was "nothing." The officer touched the outside of the bottom of the pocket with his fingers to ensure "my own safety and the safety of my fellow officer." There was indeed something there. Grabbing the entire pocket from the outside, Cotter felt a hard object that could very well have been a gun. He stuck his hand in the pocket, and it was a gun.
The man, Rudy Cornelius, had now become a defendant and was indicted for criminal possession of a weapon in the third degree, a crime to which he eventually pleaded guilty. But Cornelius had earlier moved to suppress the evidence -- the gun -- on the ground that the search of his pocket had been unconstitutional. It was when the court denied the motion to suppress that Cornelius entered a plea of guilty.
Cornelius went to the appellate division of the Supreme Court of New York, and by the luck of the draw, he came upon a panel that included Arnold Fein, one of the relatively few jurists in the country who interprets the Fourth Amendment strictly according to the intentions of the Framers: "The right of the people to be secure in their persons . . . shall not be violated . . . but upon probable cause . . ."
Speaking for a majority of the court, Fein said, to begin with that "The police simply do not have carte blanche to search or 'touch the pocket' of every individual on the street who walks in a 'little out of the ordinary' manner, looks over his shoulder, wears a 'wrinkled up and dirty' 'ragged and old coat' or appears to have a bulky object in his pocket."
To justify a frisk or a search, the police have to be able to show that they had, as Justice Fein says, "some objective credible suspicion that points to criminal activity afoot." In this case Fein ruled that despite Cornelius' disjointed way of walking, there was "no inkling that criminal activity was afoot." Therefore, there was "no articulable reason for the police even to have questioned this defendant about the contents of his pockets."
When Cornelius said "nothing" when he was asked what was in his pocket, he was exercising his right not to answer the police. Quiet as it's kept, the Constitution does protect silence. But what about the officers' fear for their safety when they saw the right-hand side of Cornelius' coat sagging? Fein's answer is likely to enrage both law enforcement officials and the general public frustrated by seeing, as they believe, so many street thugs sprung on "technicalities." Look, said Fein, whatever fear the police may have felt "was solely as a result of an unwarranted intrusion in the first place." If they had not unconstitutionally interfered with Cornelius' minuet, there would have been no occasion for them to fear for their safety.
Finally, in ordering that the gun be suppressed as evidence and the indictment dismissed, Fein emphasized: "It may well be possible that a random search of all passers-by in this particular neighborhood at this time of night would have yielded a lot of contraband. But the individual liberties in our Constitution are not based on statistical probabilities. The constitutional protections against unwarranted intrusion by an agent of the state are not to be relaxed when an individual goes for a walk . . . in a public area statistically known for a high incidence of crime.
"The Fourth Amendment has never been so amended."