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Vehicle And Traffic Stops: During A Lawful Traffic Stop, Police Must Have Founded Suspicion That Criminal Activity Is Afoot In Order To Question Occupant About Weapon Possession


criminal appeals attorney, police must have founded suspicion in order to question occupant during lawful traffic stop

People v. Garcia

New York Court of Appeals

20 N.Y. 3d 317

Decided on: December 18, 2012

People v. De Bour: Applying The Guidelines Of De Bour To Traffic Stops

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney

Issue: Whether the founded suspicion requirement of De Bour and Hollman applies to a Police Officer’s ability to ask the occupants of a lawfully stopped vehicle if they are in possession of a weapon.

Summary: Police made a lawful traffic stop and asked Defendant if he, or any of the occupants in the vehicle possessed a weapon. When a passenger admitted that he had a knife, the Officers directed all occupants out of the car, frisked them, and noticed what appeared to be a gun wedged in between the seats. With the aid of a flashlight, one of the Officers recovered an air pistol and conducted an inventory search of the vehicle. The Officer found a second air pistol on the car floor and arrested all five occupants.

Defendant moved to suppress the evidence arguing that the Officer had no basis for searching the car after it was stopped; Supreme Court granted the motion.

The People moved to reargue that an inquiry into weapon possession is no greater than the right to remove the occupants from the car and, therefore, did not require suspicion of criminality. The Supreme Court reversed its prior order and found that the inquiry into the presence of weapons was permissible. The Appellate Division reversed, vacated the judgment convicting Defendant and granted his suppression motion.

The Court of Appeals granted the People leave to appeal, affirmed the Appellate Division’s order and remitted the matter back to the Supreme Court for further proceedings.

See Also: Waiving Miranda Rights: Invoking One’s Rights Not To Remain Silent, Then Re-Initiating Communication With Police Constitutes Waiver

Holding: The Court of Appeals held that the Officer did not have founded suspicion that criminal activity was afoot to question the occupants of the lawfully stopped vehicle if they possessed any weapons.

Under De Bour, at the initial level of contact, a “request for information” is when a Police Officer may approach an individual when there is some objective credible reason for that inference not necessarily indicative of criminality. The request may involve basic, nonthreatening questions regarding, identity, address or destination.

However, once the Officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing, the Officer is no longer merely seeking information.

This common-law right of inquiry is activated by a founded suspicion that criminal activity is afoot.

Facts: Defendant and four of his friends were pulled over in Defendant’s vehicle because of a defective rear brake light. According to the Officers, the occupants appeared nervous and looked behind at them when they approached the car. Officer Cleri asked Defendant if he, or any other occupants in the vehicle had a weapon and a passenger in the rear middle seat answered that he had a knife on him. Officer Cleri and the other Officers ordered all of the occupants out of the vehicle, frisked each of them and conducted an inventory search of the vehicle. Officer Cleri saw what appeared to be a gun wedged between the seats and confirmed that it was an air pistol. He then searched the trunk and found a second air pistol. All occupants were arrested.

Defendant moved to suppress the air pistols recovered from his vehicle, arguing that the Officers had no basis for searching the car after it was stopped. Supreme Court granted Defendant’s motion, holding that Officer Cleri’s question as to whether the occupants possessed any weapons required founded suspicion of criminality and that mere nervousness on the part of the occupants did not give rise to such suspicion.

     The People moved to reargue that portion of Supreme Court’s Order that suppressed the physical evidence. The People argue that an inquiry into weapon possession is no greater an intrusion than the right to remove the occupants from the car. The Supreme Court reversed its prior order and held that Officer Cleri’s inquiry was permissible.

The Appellate Division reversed and vacated the judgment, granting Defendant’s motion to suppress. The Court of Appeals granted the People leave to appeal, affirmed the Appellate Division’s order and remitted the case back to the Supreme Court.

Legal Analysis: The Court of Appeals held that an Officer cannot question the occupants of a lawfully stopped vehicle if they are in possession of a weapon without founded suspicion that criminal activity is afoot.

In light of heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car, People v. Robinson, 74 N.Y.2d 774, 775,545 N.Y.S.2d 90, 543 N.Ed2d 733 1989, citing Michigan v. Long, 463 U.S. 1032, 1047-1048, 103 S.Ct 3469, 77 L.Ed.2d 1201 1983; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed 331 1977.

The De Bour/Hollman framework sets out four levels of police-citizen encounters, escalating measures of suspicion necessary to justify each. At the initial level, a “request for information”, demonstrates that a police officer may approach an individual where there is some objective credible reason for that interference not necessarily indicative of criminality De Bour, 40 N.Y.2d at 223, 386, N.Y.S.2d 375, 352 N.E.2d 562. The request may involve basic, nonthreatening questions regarding identity, address or destination.

However, once the Officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing, the Officer is no longer merely seeking information. This common-law inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot.

In this case, the People asked the Court of Appeals to adopt the rule that police officers may routinely pose that question, regardless of any suspicion of criminality because the inquiry serves a legitimate protective purpose and is no more intrusive on the occupants’ privacy than an order to step out of the vehicle. The Court of Appeals held that they have applied the De Bour/Hollman framework in the context of all traffic stops. Carving out the exception the People seek would be inconsistent with the Court’s search and seizure jurisprudence and would subject citizens to accusatory inquiry without even a minimal factual basis.

The People’s proposed rule would create disparate degrees of Constitutional protections based on an individual’s mode of transport. Lastly, a suspicion-less inquiry into whether the occupants of a stopped vehicle have a weapon might open the door to less precise inquiries with potential to raise significant privacy concerns.

In this case, the only evidence the Officers demonstrated was that the occupants of the vehicle appeared nervous. The Court of Appeals held that the Appellate Division’s determination has record support and concluded that nervousness is not an indication of criminality. People v. Banks, 85 N.Y.2d 558, 562, 626 N.Y.S.2d. 986, 650 N.E.2d 833.

The Court of Appeals held that the order of the Appellate Division should be modified and remitted the matter to the Supreme Court for further proceedings.


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