Opinion
Argued May 31, 1989
Decided July 11, 1989
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, William Garry, J.
Amy Donner and Philip L. Weinstein for appellant.
Elizabeth Holtzman, District Attorney (Elizabeth S. Ostrow and Barbara D. Underwood of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division affirming the judgment of conviction and the denial of suppression should be affirmed.
The Fourth Amendment of the United States Constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action (see, Pennsylvania v Mimms, 434 U.S. 106). The United States Supreme Court has reiterated that out of a concern for safety, "officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon" (New York v Class, 475 U.S. 106, 115 [emphasis added]).
Defendant was a passenger in a car which unquestionably was lawfully stopped by two officers because it made an unsignalled right turn from the left lane of a New York City street across the flow of right-lane traffic cutting off another car and motorist one and a half car lengths behind it in the right lane (see, People v Ingle, 36 N.Y.2d 413). After pulling the car over, the officers approached one on each side. While one officer spoke with the driver about the traffic infraction, the other directed the defendant passenger to step out onto the sidewalk. With the passenger door open, the butt of a loaded .357 magnum handgun was plainly visible protruding from beneath the seat. The gun was seized and defendant was arrested. A postarrest search disclosed an additional six rounds of ammunition in defendant's pocket.
We conclude, as to defendant's Federal constitutional argument, the only one preserved in this case, that precautionary police conduct directed at a passenger in a lawfully stopped vehicle is equally authorized, within Federal constitutional guideposts, as that applied to a driver. Inasmuch as the risks in these police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger, "police may order persons out of an automobile during a stop for a traffic violation" (Michigan v Long, 463 U.S. 1032, 1047-1048, citing Pennsylvania v Mimms, 434 U.S. 106, supra; see also, People v McLaurin, 70 N.Y.2d 779; People v Livigni, 58 N.Y.2d 894, affg on opn below 88 A.D.2d 386). Brief and uniform precautionary procedures of this kind are not per se unreasonable and unconstitutional.
We declare no evisceration and certainly no "total evisceration", in the words of the dissent, of the Fourth Amendment's protections nor do we address, one way or the other, the dissent's implied importation of the State's distinct constitutional protection, because that issue is not preserved or before us.
The heavy reliance laid by the dissenting opinion on the facts warrants this brief, though self-evidently not dispositive, reference to the governing principles in that regard. The evidence at the suppression hearing supported the determination that requiring defendant to step from the car was reasonable under the particular facts and under the pertinent Federal guideposts, and inasmuch as the Appellate Division affirmed, leaving the findings undisturbed (see, People v Harrison, 57 N.Y.2d 470, 477; People v De Bour, 40 N.Y.2d 210, 223), the order affirming the conviction and denial of the suppression of the seized evidence should not be overturned by this court.
Defendant's other arguments are either without merit or unpreserved.
Chief Judge WACHTLER and Judges SIMONS, HANCOCK, JR., and BELLACOSA concur; Judge ALEXANDER dissents and votes to reverse in an opinion in which Judges KAYE and TITONE concur.
Order affirmed in a memorandum.
Although the Supreme Court has not, to date, pronounced so total an evisceration of the Fourth Amendment's protections against warrantless searches and seizures, the majority of this court sweeps away entirely those protections in respect to the occupants of a lawfully stopped vehicle, proclaiming that the seizure of such occupants is per se reasonable based upon the risks inherent in "police/civilian vehicle encounters" (majority mem, at 775). Because the citizens of our State are entitled to every bit as much protection under the Fourth Amendment as that mandated by the Supreme Court, I dissent and vote to grant defendant's suppression motion and to reverse his conviction.
The facts adduced at the suppression hearing reveal that at approximately 1:00 P.M. on January 15, 1985, plain-clothes Police Officers James Reinhold and Jack Travitz, while on anticrime patrol in Brooklyn in an unmarked patrol vehicle, observed an orange automobile driving in a northbound direction on Bedford Avenue. The two occupants of the automobile exchanged glances with the officers who then proceeded to follow the car in their patrol unit. Reinhold testified that he noticed that the driver repeatedly checked his side-view and rear-view mirrors and that both the driver and passenger appeared animated in their conversation and body movements. When the driver made an illegal right turn onto Carroll Street from the left lane of Bedford Avenue the officers signaled for the car to pull over and stop. The officers exited their vehicle and approached the Ford, Travitz from the driver's side and Reinhold from the passenger's side. Upon reaching the passenger's side, Reinhold ordered defendant out of the car. Only after defendant had complied with this direction did Reinhold observe the butt of a handgun protruding from under the right front passenger seat. Both defendant and the driver were then immediately placed under arrest.
In Pennsylvania v Mimms ( 434 U.S. 106), the Supreme Court held that a police officer, upon stopping an automobile for a traffic infraction, may ask that the driver step out of his car before pursuing an investigation. In that case, the driver was stopped for an expired license plate. He was asked to step out of the car to produce his license and registration and as he exited the vehicle, the police observed a bulge under his jacket. The subsequent frisk uncovered a loaded .38 caliber revolver and the driver was immediately arrested. The court upheld the right of the police to order the driver out of the car based in large part on the perceived "inordinate risk confronting an officer as he approaches a person seated in an automobile" (id., at 110). The legitimate safety concerns of police officers, it was concluded, outweighed the "de minimis" additional intrusion on a lawfully detained driver's liberty occasioned by a request that he exit his vehicle (id., at 111). As put by the Supreme Court: "The police [had] already lawfully decided that the driver [would] be briefly detained; the only question [was] whether he [would] spend that period sitting in the driver's seat of his car or standing alongside it" (id., at 111). The Mimms court was careful to emphasize, however, that it was holding only that the driver of a lawfully stopped vehicle may be ordered out of his car and that it was not deciding whether other intrusive police actions could be taken against the passengers of a lawfully stopped automobile (id., at 110-111, nn. 5, 6).
Later, in People v Class ( 475 U.S. 106), the Supreme Court clarified the scope of its holding in Mimms, unambiguously stating that its prior decision was predicated on the following three factors: "the safety of the officers was served by the governmental intrusion; the intrusion was minimal; and the search stemmed from some probable cause focusing suspicion on the individual affected by the search" (id., at 117-118 [emphasis supplied]). In respect to the third factor, the court stressed that in Mimms, "the officers had personally observed the seized individual in the commission of a traffic offense before requesting that he exit his vehicle" (id., at 117).
The issue in Class was whether the Fourth Amendment permitted a police officer, upon stopping an automobile for a traffic infraction, to reach into the interior of the car and move some papers on the dashboard that were concealing the car's vehicle identification number. In upholding the police action, the Supreme Court reversed a decision of this court holding such a search to be a violation of both the Federal and State Constitutions (People v Class, 63 N.Y.2d 491). On remand, we adhered to our prior determination, basing our decision on article I, § 12 of the State Constitution (People v Class, 67 N.Y.2d 431).
In the instant case, no such individualized suspicion of wrongdoing existed in respect to this defendant. Indeed, his initial detention was simply the unavoidable by-product of the lawful stop of the vehicle which, in turn, was predicated solely on a traffic infraction committed by the driver. Conspicuously absent from this record is any reasonable "combination of additional factors that warranted apprehension as to the defendant passenger" (People v McLaurin, 70 N.Y.2d 779, 781). The People's contention that Officer Reinhold was justified in fearing defendant based on his prior observations of conversation and body movements borders on the absurd. It is common for the occupants of automobiles to engage in animated conversation and to gesticulate as a way of emphasizing certain points. It is an equally common experience for occupants to move around in an exaggerated fashion to keep time to music that may be playing on the car radio. Surely such everyday conduct cannot serve as the predicate for intrusive police action. Similarly, the circumstance of a driver repeatedly checking his mirrors, conduct ordinarily associated with the safe and proper operation of a motor vehicle, provides no basis for the subject intrusion on defendant. Indeed, there exists absolutely no justification other than the traffic infraction committed by the driver for Reinhold's decision to order defendant out of the car. Yet, as should now be clear from the Supreme Court's analysis in Class, although the safety rationale of Mimms may be applied appropriately to justify the incremental intrusion on the liberty of the driver — a request to step out of the car — such request directed at a passenger is impermissible absent "some probable cause focusing suspicion" on the person seized ( 475 US, at 118; see, 3 LaFave, Search and Seizure § 9.4 [a], at 514-515 [2d ed 1987]; cf., People v McLaurin, 70 N.Y.2d 779, supra; People v Livigni, 58 N.Y.2d 894, affd for reasons stated below 88 A.D.2d 386). In affirming defendant's conviction, the majority has inexplicably ignored this most recent interpretation of Mimms and, indeed, has extended that case so as to render the occupants of a lawfully stopped vehicle vulnerable to what is plainly an unconstitutional intrusion by the police. Accordingly, I would grant defendant's motion to suppress the handgun discovered after defendant was unlawfully ordered to exit the automobile and reverse the conviction.
The majority's recitation of the applicable standard of review in cases such as this is not, as the majority apparently recognizes, dispositive of the issue presented — namely, whether on any reasonable view of the facts adduced at the suppression hearing the action of the police officer in ordering defendant out of the car was justified. It is fundamental that "when an issue arises as to the standard by which [reasonable suspicion] is measured — the minimum showing necessary to establish [reasonable suspicion] — a question of law is presented for review" (People v McRay, 51 N.Y.2d 594, 601; Cohen and Karger, Powers of the New York Court of Appeals § 198, at 742 [rev ed]).