By Daniel Wiessner
ALBANY, N.Y., Dec 18 (Reuters) - The Court of Appeals has
ruled that police officers must have a "founded suspicion" of
criminality to ask occupants of a stopped vehicle if they
In a 5-1 decision the court on Tuesday found that the
framework articulated in two prior cases applies equally to
pedestrian and traffic stops.
In People v. De Bour and People v. Hollman, the court set
out a graduated framework to evaluate the constitutionality of
police-initiated encounters with private citizens.
"Whether the individual questioned is a pedestrian or an
occupant of a vehicle, a police officer who asks a private
citizen if he or she is in possession of a weapon must have
founded suspicion that criminality is afoot," Judge Carmen
Ciparick wrote for the court.
Chief Judge Jonathan Lippman and Judges Victoria Graffeo,
Eugene Pigott and Susan Read concurred.
The ruling modified a First Department, Appellate Division,
decision vacating the misdemeanor conviction of Miguel Garcia.
In September 2007, three NYPD officers stopped a car driven
by Garcia that had a broken brake light. According to the court,
the officers later testified that three men in the backseat were
"furtive" and "stiffened up" when the officers approached.
The officers asked the men if they had any weapons. After
one of the passengers admitted to having a knife, the officers
asked all five men to step out of the vehicle, the court said.
The officers found an air pistol, the court said, and
arrested the five men. During a subsequent search, an air rifle
was found in the trunk, the court said, and Garcia admitted that
both guns belonged to him. He was charged with two counts of
misdemeanor unlawful possession of an air gun.
At trial, Acting Supreme Court Justice Seth Marvin initially
granted Garcia's motion to suppress the gun evidence.
However, on reargument Marvin reversed the suppression
order. Garcia ultimately pleaded guilty to the reduced charge of
attempted unlawful possession of an air gun. He was sentenced to
a conditional discharge.
Last year, the Appellate Division, First Department, vacated
Garcia's conviction, saying the guns should have been
suppressed. The officers' claims that Garcia's passengers were
nervous, the First Department said, were insufficient to
establish founded suspicion.
The Court of Appeals on Tuesday agreed with the First
Department's order to suppress the air guns.
However, the court sent the case back to the Supreme Court
to consider the prosecution's alternative argument that the
officers would have inevitably discovered the air guns without
In dissent, Judge Robert Smith said the majority
"needlessly" expanded New York's "already hyper-stringent"
search and seizure rules.
"As a general rule, police officers who are not using or
threatening force against citizens should be allowed to do their
jobs without interference from the courts," Smith wrote.
Andrew Fine of the Legal Aid Society, who worked on the
case, said the four departments of the Appellate Division have
already applied De Bour and Hollman to cases involving traffic
stops, but the Court of Appeals had never reached the issue.
The decision "reinforces that a passenger in a car stopped
for a traffic infraction has done nothing wrong ... so police
should not be allowed to ask intrusive questions to ferret out
criminal activity," Fine said.
The Bronx district attorney's office declined to comment.
The case is the People v. Miguel Garcia, New York State
Court of Appeals, No. 205.
For the prosecution: Bronx Assistant District Attorney
For Garcia: Matan Koch of Kramer Levin and Andrew Fine of
the Legal Aid Society.
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