Opinion
Argued November 18, 1977
Decided December 19, 1977
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, XAVIER C. RICCOBONO, J.
Paul F. McAloon and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney (David I. Pincus and Peter L. Zimroth of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The suppression court found as a fact that defendant did not know that the four plainclothesmen alighting from the taxicab were police officers. Additionally there is no evidence that when defendant ran back into the building and up the stairs he was aware that he was being followed by anyone, much less a police officer. It cannot be said, therefore, that there was any intrusion whatsoever of defendant's privacy within the reach of the constitutional provisions against unreasonable search and seizure until after the officer following him had seen the barrel of the shotgun beneath defendant's coat as defendant sought to remove the coat. This observation, together with the subsequent sight of defendant as he reached the roof landing, throwing the shotgun through the window onto the roof, provided unquestionable probable cause for defendant's arrest and the search of his person incident thereto.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed in a memorandum.