The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017 To be argued by JESSICA OLIVE (NOT ADMITTED) COVER New York Supreme Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - STANLEY HARDEE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov DANA POOLE JESSICA OLIVE (NOT ADMITTED) ASSISTANT DISTRICT ATTORNEYS Of Counsel TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 3 The People’s Case ....................................................................................................... 3 The Defense Case ....................................................................................................... 9 The People’s Rebuttal Case ..................................................................................... 11 The Court’s Decision................................................................................................ 12 POINT I THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS. ......................................... 14 CONCLUSION ................................................................................................................... 25 TABLE OF AUTHORITIES STATE CASES People v. Allison, 270 A.D.2d 148 (1st Dept. 2000) ........................................................ 15 People v. Anderson, 17 A.D.3d 166 (1st Dept. 2005) ............................................... 16, 21 People v. Batista, 88 N.Y.2d 650 (1996) ...................................................................... 14, 24 People v. Benjamin, 51 N.Y.2d 267 (1980) ................................................................. 14, 23 People v. Berrios, 28 N.Y.2d 361 (1971) ........................................................................... 15 People v. Carvey, 89 N.Y.2d 707 (1997) ................................................... 12, 14, 16, 22-23 People v. Chestnut, 51 N.Y.2d 14 (1980) .......................................................................... 14 People v. Debour, 40 N.Y.2d 210 (1976) .......................................................................... 23 People v. Feldman, 114 A.D.3d 603 (1st Dept. 2014) ..................................................... 21 People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005) ...................................................... 17, 19 People v. Garcia, 20 N.Y.3d 317 (2012) ............................................................................ 23 People v. Hackett, 47 A.D.3d 1122 (3d Dept. 2008) ........................................... 13, 16, 22 People v. Hensen, 21 A.D.3d 172 (1st Dept. 2005) ......................................................... 15 People v. Hollman, 79 N.Y.2d 181 (1992) ........................................................................ 23 People v. Leach, 114 A.D.3d 518 (1st Dept. 2014) .......................................................... 21 People v. Mundo, 99 N.Y.2d 55 (2002) ................................................................. 15-17, 19 People v. Munoz, 19 A.D.3d 243 (1st Dept. 2005) .......................................................... 15 People v. Newman, 96 A.D.3d 34 (1st Dept. 2012) ....................................... 16-17, 21-22 People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011) ......................................... 17, 19, 23 People v. Ortiz, 90 N.Y.2d 533 (1997) .............................................................................. 15 People v. Prochilo, 41 N.Y.2d 759 (1977) ......................................................................... 15 -ii- People v. Rivera, 129 A.D.2d 463 (1st Dept. 1987) ......................................................... 14 People v. Rivera, 14 N.Y.2d 441 (1964) ............................................................................ 14 People v. Salaman, 71 N.Y.2d 869 (1988) ......................................................................... 20 People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003) ...................................................... 17 People v. Spencer, 188 A.D.2d 408 (1st Dept. 1992) ...................................................... 15 People v. Torres, 74 N.Y.2d 224 (1989) ..................................................... 12, 14-16, 22-23 People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996) .................................................... 17-18 STATE STATUTES CPL 160.50 ............................................................................................................................ 11 Penal Law § 265.02(3) ............................................................................................................ 2 Penal Law § 265.03(3) ......................................................................................................... 1-2 -iii- SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STANLEY HARDEE, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant Stanley Hardee appeals from a January 22, 2013 judgment of the Supreme Court, New York County (Charles Solomon, J., at suppression hearing, Michael Obus, J., at guilty plea), convicting him, upon his plea of guilty, of one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), and sentencing him, as a persistent violent felony offender, to an indeterminate term of 16 years to life in prison. He is currently incarcerated pursuant to the judgment against him. At approximately 1:30 a.m. on July 31, 2010, three police officers pulled over defendant after witnessing him speeding down Lexington Avenue in the 25th Precinct, an area that had recently experienced a spike in violent crime. When the officers approached the car, defendant was extremely nervous and repeatedly looked at a maroon shopping bag behind the passenger seat. He refused to follow the officers’ numerous directions to stop looking around and step out of the car. Once defendant finally exited the vehicle, he continued looking over his left shoulder into the car and also looked down the street as if he were plotting an escape path. At this time, he was approximately three feet from the vehicle’s backseat. One of the officers, “concerned about weapons” based on defendant’s behavior, entered the car to search behind the front passenger seat. The officer picked up the maroon shopping bag, felt something heavy in the bag, and believed it was a weapon. The officer then looked inside the bag and saw the handle of a semiautomatic firearm sticking halfway out of a smaller black bag. After some resistance, defendant was arrested. By New York County Indictment Number 5558/2010, filed on November 19, 2010, defendant was charged with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]) and one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[3]). Defendant moved to suppress the firearm obtained as a result of the car search, and following a hearing held on June 1, 2011, the Honorable Charles Solomon issued a written decision denying that motion on November 1, 2011. Defendant pleaded guilty as noted above in front of the Honorable Michael J. Obus on October 3, 2012. On January 22, 2013, Justice Obus adjudicated defendant a persistent violent felony offender based on two previous robbery convictions, and sentenced him as noted above. -2- On appeal, defendant claims that the court erred in denying his motion to suppress the firearm. THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case At approximately 1:30 in the morning of July 31, 2010, Sergeant CHRISTOPHER SIANI, Officer STEPHEN LOUD,1 and Officer Kieran Kailer were driving southbound in an unmarked police vehicle on Lexington Avenue in the 25th Precinct (Siani: 10-11, 31; Loud: 70-71).2 The head of the patrol bureau had assigned the officers to that area due to a spike in violent crimes (Loud: 71). Officer Kailer was driving, Officer Loud was seated in the front passenger seat, and Sergeant Siani was seated in the back seat behind Officer Kailer (Siani: 10; Loud: 70-71, 96). Officer Kailer was about to turn left onto 124th Street when the officers observed a four-door gray sedan “flying” past their car down Lexington Avenue “at a high rate of speed” (Siani: 11, 12, 16, 32, 34; Loud: 71, 72, 96). The car was traveling at approximately 50-60 miles an hour, even though the speed limit was 30 miles per hour (Siani: 12, 32, 34, 35; Loud: 72). Instead of turning, Officer Kailer continued driving southbound on Lexington Avenue to follow the sedan (Siani: 12-13; Loud: 72, 96). The driver of the sedan was 1 Officer Loud was subsequently promoted to Sergeant (Loud: 68). 2 Parenthetical references preceded by the last name of a witness refer to that witness’s testimony during the June 1, 2011 hearing. Parenthetical references preceded by “DB” refer to the defendant’s brief. -3- changing lanes without signaling and weaving in and out of traffic as if he was “in a big hurry” and in a rush to get somewhere (Siani: 13, 35; Loud: 72-73). It took the officers six or seven blocks to catch up with the sedan (Siani: 13, 34). With lights and sirens on, the officers pulled over the sedan to the right side of Lexington Avenue at 117th Street (Siani: 13, 14, 36-37; Loud: 73, 96). Officer Kailer and Sergeant Siani approached the sedan on the driver’s side while Officer Loud went to the passenger side (Siani: 13, 15, 38-39; Loud: 74, 96). Defendant was in the driver’s seat and Alice Simmons was seated in the front passenger’s seat (Siani: 15-16; Loud: 74, 97). Defendant was “very nervous” (Siani: 16). Officer Kailer asked defendant why he was driving so quickly (Siani: 16-17; Loud: 75). Defendant was “wide-eyed” and continually looking around the car (Siani: 16, 42, 43). Defendant glanced at the back of the vehicle approximately two to four times (Siani: 18). Defendant would look at Officer Kailer, Sergeant Siani, Simmons, and then look behind him into the back seat (Siani: 16-18). Defendant was looking around so much that “his head was, like, spinning around” (Siani: 18). Officer Kailer had to tell him repeatedly to “calm down,” “sit still,” and “concentrate” because defendant was “pretty animated” (Siani: 16-18). Officer Kailer specifically told defendant to stop moving approximately three to four times (Siani: 18). -4- Officer Kailer asked defendant if anything was in two Styrofoam cups located in the center console (Siani: 17, 42, 44; Loud: 75). Defendant stated that there was a little bit of soda or alcohol in the cups, and Officer Kailer reassured him, “Listen, it’s not a big deal, relax” (Siani: 17, 43, 44). Officer Kailer told him, “If it’s just a little bit of alcohol, it’s not a big deal, but stop looking around” (Siani: 17). Sergeant Siani did not think that defendant was “drunk,” but instead thought that he “might be high or something” because “he was so hyper” (Siani: 43). At this point, Officer Loud, who was standing on the passenger side of the car, bent down to get a better view inside the car (Loud: 75). Defendant turned away from Officer Kailer and looked in the back seat behind the front passenger seat (Loud: 76). Officer Kailer asked defendant to step out of the car, but defendant “refused” and “shook his head like I’m not getting out of the car” (Siani: 18, 19, 45). Officer Kailer told him, “Listen, you have to step out of the car” (Siani: 19, 45; Loud: 76). After Officer Kailer repeated himself twice, Officer Loud became “concerned” and bent down again to look inside the vehicle (Loud: 76). While Officer Kailer was speaking to him, defendant turned over his right shoulder again and looked behind the front passenger seat (Loud: 76-77). Officer Loud then saw that defendant was looking at a maroon shopping bag behind the front passenger seat (Loud: 77, 79, 112). Officer Kailer asked defendant to step out of the car approximately three times before he complied (Siani: 19, 45-46; Loud: 76-77, 98). Once defendant exited the -5- vehicle, Officer Kailer promptly frisked him (Siani: 20, 46; Loud: 77, 100). This signaled to Officer Loud that Officer Kailer was concerned about weapons (Loud: 78). Defendant was compliant during the frisk, but he was still nervous (Siani: 20). Officer Kailer and Sergeant Siani continued to reassure him and told him to relax (Siani: 20, 46; Loud: 113). After he frisked defendant, Officer Kailer directed defendant to put his hands in his front pants pockets and step to the back bumper of the vehicle (Siani: 20, 47; Loud: 77, 100). Officer Loud asked Simmons to step out of the car and sit on the back bumper next to defendant (Loud: 78, 101, 102). Defendant leaned on the back bumper of the vehicle, approximately three feet from the vehicle’s backseat (Siani: 47; Loud: 100, 112). He looked over his left shoulder into the car at least two times (Siani: 21-22, 50). Defendant continued to look around (Siani: 21-22, 50-51). After looking at Sergeant Siani and then looking over his right shoulder down Lexington Avenue, defendant began staring at the corner of 116th Street. (Siani: 21, 22, 50-51). Sergeant Siani thought “that was going to be the path he was going to run at” (Siani: 21-22, 50- 51). Based on “the way Officer Kailer frisked the defendant, and how the defendant did not comply with Sergeant Kailer stepping out at first and the way Officer Kailer had to repeat himself and the tone of his voice,” Officer Loud was “concerned about weapons” (Loud: 79). Officer Loud saw defendant “moving around” outside the car -6- and was worried that “in his reachable area there could be a weapon” (Loud: 79). Officer Loud believed there “would be a weapon” in the bag defendant had been “looking at” in the back seat (Loud: 79). After both defendant and Simmons were out of the car, Officer Loud entered the car through the open front passenger door, crouched on his knees on the front passenger seat, and leaned over the seat to search the back seat (Loud: 78-79, 80, 107). Officer Loud spotted the maroon shopping bag directly behind the passenger seat, so he grabbed it by a handle and tugged it (Loud: 79, 81, 107). Officer Loud felt something heavy in the bag and believed it was a weapon or firearm (Loud: 80, 81). Officer Loud then looked inside the bag and saw another smaller black bag (Loud: 81, 108). The handle of a semiautomatic firearm was sticking halfway out of that bag (Loud: 81, 95). Officer Loud then gave the bag another tug to make sure the weight corresponded with the weight of a real firearm (Loud: 82). Meanwhile, Officer Kailer repeatedly told defendant statements like “just focus on me,” “stop moving,” “I’m talking to you,” “relax,” “stop looking back,” “stop looking around,” and “just talk to me” (Siani: 21-22; Loud: 78). Sergeant Siani thought “something is wrong” and that “we got to get this guy cuffed because something is up” (Siani: 22-23, 49). Finally, Officer Kailer told defendant, “If you look back again, I’m going to handcuff you” (Siani: 22, 48). Almost immediately, defendant looked right back into the car (Siani: 22). -7- While Officer Loud was still inside the sedan, Sergeant Siani attempted to handcuff defendant (Siani: 23, 51, 52). After Sergeant Siani got one handcuff on him, defendant tensed up and began resisting (Siani: 23, 51, 52). Officer Kailer also tried to help Sergeant Siani handcuff defendant (Siani: 23). Defendant was trying to get Sergeant Siani off of him, and Sergeant Siani thought that defendant was trying to escape (Siani: 52, 53). Sergeant Siani thought, “[t]he way he was acting, something was coming. Either I was going to get punched. I felt I was going to get hit, kicked, something was going to happen” (Siani: 53). Sergeant Siani was afraid that defendant “was going to run or fight” (Siani: 62). When Sergeant Siani began handcuffing defendant, Officer Loud placed the gun back down in the sedan, stuck his head out of the car, and yelled either “gun” or the officers’ code for gun, “lunch” (Siani: 23, 27, 54, 60-61; Loud: 82-83, 108). Officer Loud then ran over to assist the officers in handcuffing defendant (Siani: 23, 24, 54; Loud: 82-84, 108-109). All three officers were unable to handcuff defendant (Siani: 24, 26; Loud: 84). A nearby uniformed police officer also came over to help (Siani: 26-27; Loud: 84, 109). Officer Loud began hitting defendant in the head and face and telling him to get on the ground (Loud: 83). The uniformed officer also hit defendant several times on one leg with a baton, but it did not affect defendant (Loud: 84, 109). The officers called for additional assistance, and eventually defendant was handcuffed after approximately forty-five seconds (Siani: 25-26, 54; Loud: 84). Simmons was also -8- arrested (Siani: 27; Loud: 86). Defendant was taken to the 25th Precinct for processing (Siani: 27, 61). When the officers recovered the firearm and processed it, they discovered that it was loaded (Loud: 85-86, 95). The Defense Case ALICE SIMMONS was defendant’s fiancé and had known him since they were teenagers (Simmons: 116). She was unemployed and, prior to his arrest, defendant supported her (Simmons: 151-52). On July 31, 2010, Simmons was in defendant’s sedan traveling downtown on Lexington Avenue when police officers pulled the vehicle over at 115th or 116th Street (Simmons: 117-118, 130). One officer walked up to defendant’s side of the car, and two officers were on her side (Simmons: 118-119, 132). One of the officers asked for defendant’s license, which he provided (Simmons: 118). An officer told defendant to turn off the car and take the keys out of the ignition, and he complied (Simmons: 118-119, 120, 132-33). The officer directed defendant to pass him the keys, which the officer put on top of the roof of the car (Simmons: 121, 132-33). The officers did not ask defendant or Simmons any questions about the cups in the car (Simmons: 121). The officers ordered both defendant and Simmons out of the car and defendant went to the back of the car by the trunk (Simmons: 119, 121, 123, 124, 136- 38). The officers were “very nasty,” telling her to “shut up, shut the ‘F’ up” (Simmons: 124, 137). Simmons moved off the street onto the sidewalk, two or three feet away from the car (Simmons: 126-127). -9- One of the officers went into the car and gave a signal, and then the other officers tried to handcuff defendant but he resisted (Simmons: 127-29). When the officers tried to handcuff defendant, they pushed him and hit him with a walkie-talkie (Simmons: 127, 129, 140). The officers “threw him on the ground, kicked him, stomped him, punched him” (Simmons: 129, 140). Simmons was not handcuffed until fifteen or twenty minutes after defendant was arrested (Simmons: 130, 137, 149- 50). After the incident, defendant had bruises on his face and one of his eyes was swollen shut (Simmons: 140-42). Simmons did not experience any injuries as a result of the incident (Simmons: 144). Simmons and defendant had brought a civil lawsuit in federal district court against New York City and the officers involved in defendant’s arrest (Simmons: 143- 46; People’s Exh. 2).3 Defendant had prepared the civil complaint but Simmons was familiar with it (Simmons: 152-53). That complaint alleged that she suffered lacerations (Simmons: 148-49; People’s Exh. 2). Simmons first testified, “I didn’t know nothing about no gun in the car” (Simmons: 142). She was then presented with the civil complaint prepared by 3 Simmons initially testified that they were suing the city for $75,000, but after being shown the complaint, she confirmed that they were suing the officers for $4 million (Simmons: 142-43, 147). The complaint stated: “We seek compensatory damages from the defendants in the amount of 3 million dollars. 1 million from the City of New York for relief of violation of our Constitutional Amendment No. 4. $500,000 per defendant for physical, mental and emotional duress and anguish” (People’s Exh. 2). -10- defendant in which he claimed that he had had no knowledge of the gun and that Simmons had found the gun and was planning on turning it in to the police buyback program (People’s Exh. 2; see Simmons: 159-60). Simmons then testified that defendant’s account was correct and that she had found the gun and had intended to turn it over to the police (Simmons: 161-62). She was then presented with a statement prepared by her attorney, signed by Simmons and notarized, in which Simmons had stated that she had not known there was a gun in the car (People’s Exh. 3; see Simmons: 163-64).4 Simmons confirmed that, in a prior meeting with the prosecutor, in the presence of her attorney, she had stated she had had no knowledge of the gun, and had signed the corroborating affidavit to that effect (Simmons: 163- 65; People’s Exh. 3). Simmons testified that the affidavit was true, and that she had not known there was a gun in the car (Simmons: 165-66, 199). When again presented with defendant’s federal civil complaint, Simmons claimed that the statement concerning her possession of and intentions concerning the gun was true (Simmons: 170). The People’s Rebuttal Case In an effort to subdue defendant, a physical struggle ensued and the officers struck defendant’s body with fists and a baton (Loud: 174). Defendant complained to the officers of pain and he received medical treatment (Loud: 173-74). Defendant 4 In connection with this incident, Simmons was charged under docket number 2010NY056464, which is sealed pursuant to CPL 160.50. -11- was photographed at Central Booking around 9 a.m. (Loud: 172-74). The photograph accurately showed how defendant appeared at the time of his arrest (Loud: 173), and did not depict any of the injuries described by Simmons (People’s Exh. 4; see Decision at 10). The Court’s Decision On November 1, 2011, the court issued a written decision denying suppression of the firearm and other physical evidence obtained as a result of the stop (Decision).5 Preliminarily, the court determined that the testimony of both Sergeant Siani and Officer Loud was credible and the testimony of Alice Simmons was not (Decision at 10).6 It made findings of fact consistent with the evidence provided by the People (Decision at 1-10). The court also determined that the officers had lawfully stopped defendant’s car and properly ordered defendant and Simmons out of the car (Decision at 11). Under the purview of People v. Carvey, 89 N.Y.2d 707 (1997) and People v. Torres, 74 N.Y.2d 224 (1989), the court held that the police had properly conducted a limited search of the interior of the car. The court found that “[d]efendant’s actions prior to being pulled over, as well as after, gave the police reasonable cause to believe 5 The court also granted defendant’s motion to suppress certain post-arrest statements he made in the absence of Miranda warnings (Decision at 14). This portion of the court’s decision is not at issue on appeal and will not be discussed in this brief. 6 At the hearing, defense counsel admitted that Simmons’ testimony was “problematic” (6/1/11 Hearing at 183). -12- that there was a weapon in the car which presented a threat to their safety” (Decision at 12). Specifically, the court determined that “[d]efendant’s nervousness, his persistent movements inside the vehicle, his repeated looking into the backseat and his refusal to follow Kailer’s directions, led Loud to believe there was a weapon in the car and specifically, that it might be in the bag on the floor behind the passenger seat” (Decision at 12-13). Moreover, the court observed that defendant had been speeding in an area that recently experienced a spike in violent crimes, and Officer Kailer’s immediate frisk of defendant had signaled to Officer Loud that Officer Kailer was concerned that defendant may be armed (Decision at 12-13). The court also noted that Officer Loud had conducted a minimally intrusive search by going directly to the area of concern, i.e., behind the passenger seat, and had weighed the bag to determine whether it was consistent with the presence of a firearm before opening it (Decision at 13). Finally, in response to defendant’s post-hearing arguments, the court distinguished this case from People v. Hackett, 47 A.D.3d 1122 (3d Dept. 2008), because “in this case there was actually a ‘specific threat’ presented by defendant’s conduct which allowed Loud to check the floor behind the passenger seat” (Decision at 13).7 7 On July 10, 2012, the court denied defendant’s motion to reargue the suppression issue, stating that “the decision in this case comported with the law” and that “the issues were fully explored and considered by the court” (July 10, 2012 Decision and Order). -13- POINT I THE HEARING COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS (Answering Defendant’s Point I). On appeal, defendant specifically concedes that the stop of the automobile was proper and that the occupants were lawfully removed from the car (DB: 11 n.6). Moreover, defendant does not contest the trial court’s findings of fact or credibility determinations. Instead, defendant’s sole argument is that, under People v. Torres, 74 N.Y.2d 224 (1989) and People v. Carvey, 89 N.Y.2d 707 (1997), the recovery of the loaded semiautomatic firearm was improper because, once defendant and Simmons had been removed from the car, the subsequent limited search of the car’s back seat was not justified by a “substantial likelihood” that a weapon was in the car and that it presented an “actual and specific” danger to the officers (DB: 10-19). This claim is meritless. Preliminarily, it is well established that reasonableness is the touchstone of any analysis of police conduct during an encounter with a citizen. People v. Batista, 88 N.Y.2d 650, 653 (1996). Moreover, a court must bear in mind “the actualities” of street encounters. People v. Rivera, 129 A.D.2d 463, 466 (1st Dept. 1987), quoting People v. Rivera, 14 N.Y.2d 441, 446 (1964). That is, police-citizen interactions must be viewed as an evolving whole rather than being broken down into discrete elements. See People v. Chestnut, 51 N.Y.2d 14, 23 (1980); People v. Benjamin, 51 N.Y.2d 267, 271 (1980). Accordingly, a court’s “focus must be directed on whether the conduct of -14- the police was reasonable in view of the totality of the circumstances.” People v. Hensen, 21 A.D.3d 172, 175 (1st Dept. 2005). It is equally well settled that the hearing court is in the best position to evaluate the reasonableness of police conduct. People v. Prochilo, 41 N.Y.2d 759, 761 (1977). Accordingly, its determination “should not be set aside unless clearly unsupported by the record.” People v. Spencer, 188 A.D.2d 408, 408 (1st Dept. 1992). And, finally, at a suppression hearing, the People have the burden of going forward to show the legality of police conduct in the first instance. See People v. Ortiz, 90 N.Y.2d 533, 537 (1997); People v. Allison, 270 A.D.2d 148, 148 (1st Dept. 2000). However, it is the defendant who “bears the ultimate burden of proving that the evidence should not be used against him.” People v. Berrios, 28 N.Y.2d 361, 367 (1971); see also People v. Munoz, 19 A.D.3d 243, 243 (1st Dept. 2005). Ordinarily, and absent probable cause, law enforcement officers may not search the interior of a car once the suspects have been removed and frisked without incident. People v. Torres, 74 N.Y.2d 224 (1989). However, “further intrusion” into the car is nevertheless warranted when an officer could reasonably conclude that a weapon is present in the vehicle that presents an “actual and specific danger” to the officers’ safety. People v. Mundo, 99 N.Y.2d 55, 58 (2002), citing People v. Torres, 74 N.Y.2d 224, 231 n.4 (1989). This is true even when the suspects do not have “immediate access to that weapon.” Id. -15- The Court of Appeals “reexamined” Torres’s holding in People v. Carvey, 89 N.Y.2d 707 (1997). See Mundo, 99 N.Y.2d at 58. In Carvey, a passenger in a lawfully stopped vehicle placed something beneath his seat. 89 N.Y.2d at 709. When the officers approached the vehicle, they realized that the passenger was wearing a bulletproof vest. Id. The Court found that these circumstances combined supported the officer’s subsequent search of the passenger seat under Torres. Id. at 712. There is no specific set of circumstances that must be present for a search to be justified under Torres and Carvey. To be sure, this Court has held that a combination of “movements within a car suggesting that the defendant was reaching for something that might be a weapon,” combined with other suggestive factors, is sufficient to justify a limited protective search. See People v. Newman, 96 A.D.3d 34, 42 (1st Dept. 2012). However, this Court also recognized that such factors are not strictly necessary. Id. Instead, the court must examine the legality of a search in light of the totality of the circumstances. Id. This Court has found searches to be justified due to numerous factors. The court may consider the initial circumstances of the stop. See, e.g., People v. Anderson, 17 A.D.3d 166 (1st Dept. 2005) (“officers observed the vehicle make an illegal U-turn in the face of an obvious police presence”). Further, although mere nervousness at being pulled over by a police officer, by itself, is insufficient to justify a protective search of a vehicle, People v. Hackett, 47 A.D.3d 1122, 1224 (3d Dept. 2008), nervousness, in combination with other factors, may contribute to the -16- justification for a search. See, e.g., People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996) (holding that defendant’s nervous conduct, repeated refusal to comply with officer orders, corroborating statements related to the suspected crime, and his drugged appearance justified a protective search of the vehicle’s driver’s side area). Moreover, courts often analyze whether the vehicle occupants complied with police orders. See, e.g., Mundo, 99 N.Y.2d at 59 (vehicle occupants “twice disobey[ed] the officers’ lawful commands” and demonstrated a “lack of concern for the safety of others”); People v. Omowale, 83 A.D.3d 614, 617 (1st Dept. 2011) (defendant failed to timely pull over the car “after being directed to do so several times”); People v. Fludd, 20 A.D.3d 351, 353 (1st Dept. 2005) (“Twice, both defendants had to be directed to keep their hands where they could be seen”). Any suspicious movements or behavior on behalf of the vehicle occupants is also relevant. See, e.g., Newman, 96 A.D.3d at 43 (citing the fact that defendant “pretended to be asleep when the officers reached the vehicle”); People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003) (when the officer leaned into the car and shined a flashlight, defendant became agitated, reached under the driver’s seat, and pushed the officer’s hand away from that area). In particular, courts often find a search justified when a vehicle’s occupants attempt to hide or conceal something, because such movements indicate the potential presence of a weapon. See, e.g., Mundo, 99 N.Y.2d at 59; Fludd, 20 A.D.3d at 353; Omowale, 83 A.D.3d at 617. -17- Many of the factors discussed above are present in this case. Here, the police were confronted with a set of rapidly-developing circumstances that quickly escalated the nature of the late-night car stop. Even before the officers ordered defendant out of the car, defendant’s behavior was highly suspect. The officers pulled over defendant after seeing him “flying” past their car at 50-60 miles per hour and weaving in and out of traffic without signaling (Siani: 11, 12, 16, 32, 34; Loud: 71, 72, 96). In an area with a recent spike in violent crimes, they encountered a “very nervous,” “wide-eyed,” “hyper,” and potentially high individual who was looking around the vehicle so much that “his head was…spinning.” (Siani: 16-18, 42-43; Loud: 71). Defendant’s possibly drugged appearance also served to “heighten[] rather than diminish[] the officer[s’] concern for [their] safety.” Vehap, 234 A.D.2d at 211. Officer Kailer used proactive efforts to control the situation and keep defendant calm by repeatedly instructing him to “calm down,” “sit still,” and “concentrate,” but to no avail (Siani: 16-18). Officer Kailer told him to stop moving three to four times (Siani: 16-18; Loud: 76-77). Defendant repeatedly disregarded the officer’s instructions. Moreover, the entire time that defendant was in the car, he engaged in highly suspicious movements. He was rapidly looking around, particularly behind the front passenger seat. Indeed, he was looking directly at a maroon shopping bag (Loud: 76- 77, 112). Defendant’s frequent glances directly at the location of the shopping bag are analogous to cases where vehicle occupants were seen attempting to hide or conceal -18- something. See Mundo, 99 N.Y.2d at 59; Fludd, 20 A.D.3d at 353; Omowale, 83 A.D.3d at 617. Such movements, by their very nature, demonstrate that the vehicle’s occupants are preoccupied with an item located inside the vehicle at the time of the stop. As such, both actions indicate that a concealed weapon is potentially present. Compounding this suggestion was the fact that defendant repeatedly looked at the bag even after Officer Kailer directed him to stop looking around (Siani: 16-19, 21-22, 45- 46, 48, 50-51; Loud: 76-78, 98). In short, before defendant even stepped out of the car, the officers were faced with a “hyper,” possibly high individual who repeatedly disregarded multiple directives and kept turning to look at a maroon shopping bag behind the front passenger seat. Defendant continued his insubordination by refusing to step out of the car, even though Officer Kailer instructed him to do so twice (Siani: 18-19, 45; Loud: 76-77). Defendant’s claims that he “pull[ed] the car over without incident” and that he was “compliant” during the ensuing frisk (DB: 16, 18) do not negate the threatening nature of his repeated refusal to exit the vehicle. See Fludd, 20 A.D.3d at 353 (“While defendants were cooperative with the police after being removed from the vehicle, their earlier actions were not benign”). Once defendant exited the vehicle, the situation only escalated further. Namely, defendant stepped out of the car the third time Officer Kailer directed him to, but he continued looking around despite Officer Kailer’s continual instructions to “stop looking back” and “stop moving” (Siani: 19, 21-22, 45-46, 50-51; Loud: 76-78, -19- 98). Sergeant Siani thought, “we got to get this guy cuffed because something is up” and “[h]e’s not listening to us” (Siani: 22). He believed that “something [wa]s wrong” (Siani: 23). Outside the car, defendant looked over his right shoulder down Lexington Avenue, possibly to plan an escape route (Siani: 21-22, 50-51). At least twice, he turned and looked over his left shoulder back into the car (Siani: 21, 22, 50, 51). Sergeant Siani thought defendant “was hiding something” (Siani: 49). He further explained, “[t]he way he was acting, something was coming. Either I was going to get punched. I felt I was going to get hit, kicked, something was going to happen” (Siani: 53). He wanted to handcuff defendant “for [his] safety” because he was afraid defendant “was going to run or fight” (Siani: 62). Ultimately, Officer Loud saw defendant “moving around” unsecured outside the car, in total contradiction of Officer Kailer’s orders and a mere three feet away from the bag defendant had been “looking at” repeatedly (Loud: 79). Thus, based on a totality of the circumstances, Officer Loud was justifiably concerned that there “would be a weapon” in the bag that defendant could easily access and he reasonably decided to perform a protective search of the backseat (Loud: 79). Officer Loud’s protective search was limited and minimally intrusive in light of the circumstances. See People v. Salaman, 71 N.Y.2d 869, 870 (1988) (“Any inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances”). Officer Loud did not search -20- the entire vehicle nor did he open the glove compartment, trunk, or check any other closed container in the car. Instead, his search encompassed the direct area of concern: the maroon shopping bag directly behind the front passenger seat that was the subject of defendant’s frequent glances. Further, Officer Loud did not just simply open the bag; he first tugged on the bag to confirm that its weight corresponded to the weight of a firearm (Loud: 79-82, 107-108). Only then did he look inside the bag and see the handle of a semiautomatic weapon that officers later discovered to be loaded. In short, in light of all the circumstances, Officer Loud’s limited search of the backseat was a narrowly tailored response to an objectively reasonable risk that a weapon presenting an actual and specific danger to the officers’ safety was located within the shopping bag behind the passenger seat. Defendant’s assertions to the contrary are unavailing. Primarily, defendant focuses on cases in which the vehicle occupants either reached for or concealed a weapon (DB: 12-15). See People v. Newman, 96 A.D.3d 34, 42 (1st Dept. 2012); People v. Leach, 114 A.D.3d 518 (1st Dept. 2014); People v. Feldman, 114 A.D.3d 603 (1st Dept. 2014). Defendant argues that the search in this case was not justified because neither defendant nor Simmons ever “made this critical movement” (DB: 13). However, as defendant recognizes (DB: 12), a totality of the circumstances test governs the legality of protective vehicle searches. See Anderson, 17 A.D.3d at 167- 68 (“discrete analysis of each factor…is inappropriate as the officers are confronted -21- with only a complete set of circumstances”). Even in Newman, where this Court recognized that movement consistent with the reaching for a weapon plus other suggestive behavior is sufficient for a limited protective search, this Court recognized that “each case presents unique facts” and that courts must assess reasonableness “in view of the totality of the circumstances.” 96 A.D.3d at 42 (internal quotation omitted). In other words, a reaching or concealing movement may be sufficient to justify a limited search under Torres and Carvey, but it is not necessary. Here, defendant’s animated and nervous behavior, his repeated failure to follow multiple instructions, and his continual glances at a maroon shopping bag in the backseat combined to justify Officer Loud’s search of the backseat while defendant remained unsecured and “moving around” three feet away (Loud: 79). Moreover, contrary to defendant’s assertion (DB: 16-17), defendant’s behavior is easily distinguishable from the “mere nervousness” present in Hackett. In that case, the defendant appeared nervous and merely “leaned toward the passenger seat of his vehicle” before the officer approached his vehicle. 47 A.D.3d at 1123. Upon questioning, the defendant explained that he had been reaching for his cellphone, which he showed to the officer. Thus, the Third Department found no justification under Torres or Carvey for a search of the defendant’s car. In contrast to Hackett, as Justice Solomon recognized below, “in this case there was actually a ‘specific threat’ presented by defendant’s conduct which allowed Loud to check the floor behind the passenger seat” (Decision at 13). -22- Defendant’s reliance on People v. Garcia, 20 N.Y.3d 317 (2012), is similarly misplaced (DB: 17). In Garcia, the Court of Appeals found that the police officers did not possess the common law right to inquire under People v. Debour, 40 N.Y.2d 210 (1976) and People v. Hollman, 79 N.Y.2d 181 (1992) because the officers did not possess a “founded suspicion of criminality” when the vehicle’s occupants merely “appeared nervous.” 20 N.Y.3d at 324. To the extent that the Debour/Hollman framework for a common law inquiry may even be analogized to a limited protective search of a vehicle under Torres and Carvey, here, defendant’s nervousness was accompanied by animated movements both inside and outside the car, his concentrated disregard of the officer’s instructions, and frequent glances at a maroon shopping bag in the back seat. Defendant further suggests that, logically, his nervousness could have been attributable to his admission that there was alcohol in the sedan (DB: 18). However, “innocent explanations for behavior do not prevent police officers from acting on their well-founded suspicions.” Omowale, 83 A.D.3d at 618. Indeed, it would be absurd to require officers “to assume the risk that the defendant’s conduct was in fact innocuous or innocent.” People v. Benjamin, 51 N.Y.2d 267, 271 (1980). An officer need not wait for the “glint of steel” before he can take steps to reasonably assure his safety. Id. at 271. Finally, defendant discusses the fact that, unlike Officer Loud, Sergeant Siani “never said he believed there was a weapon in the car” (DB: 18). However, Sergeant -23- Siani did state that he believed defendant “was hiding something” and that “something [wa]s wrong” (Siani: 23, 49). Indeed, during the encounter, Sergeant Siani’s primary concern was his safety as opposed to making an arrest (Siani: 64-65). Furthermore, from his perspective, Sergeant Siani only saw defendant looking into the back seat of the car, whereas Officer Loud could see that when defendant looked into the back seat, he was looking at a maroon shopping bag (see Siani: 16-18, 21-22; Loud: 76-77, 112-113). Moreover, neither party asked Sergeant Siani if he believed there was a weapon in the car, presumably because his personal beliefs are simply not relevant: Sergeant Siani neither conducted nor ordered the search of the vehicle. Moreover, even if he had, the propriety of a protective search simply does not turn on the subjective states of mind of the officers involved. Instead, the pertinent inquiry is whether the protective search was objectively justified in light of all the circumstances. See People v. Batista, 88 N.Y.2d 650, 654 (1996). And, as demonstrated, the search at issue here was certainly justified given the totality of defendant’s behavior. In sum, the officers’ actions in this case were a reasonable, narrowly tailored response to the rapidly-developing circumstances of a late-night car stop. This Court should affirm the hearing court’s decision denying defendant’s suppression motion. -24- CONCLUSION Defendant’s conviction and sentence should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov DANA POOLE JESSICA OLIVE (not admitted) Assistant District Attorneys Of Counsel January 2015 -25- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 6167, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.