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New York Legal

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police traffic stop, file 2008. REUTERS Rick Wilking

Police search of vehicles comes under Court of Appeals scrutiny

12/18/2012 COMMENTS (1)

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 possess weapons.

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.

FOUNDED SUSPICION

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 the inquiry.

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 Stanley Kaplan.

For Garcia: Matan Koch of Kramer Levin and Andrew Fine of the Legal Aid Society.

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Comments (1)

12/25/2012 7:32:05 AM by ParkedCop

So Remember Police Officer, if you pull over a car with a guy wearing all black, who looks nervous, just write him a ticket. Don't ask if he has a weapon, just let him drive on to the local elementary school. At some point we need to let the police do there jobs. Bad things happen, and the we make it harder and harder.


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