The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017Oral Argument of 15 minutes requested by RACHEL T. GOLDBERG Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2015-00170 STANLEY HARDEE, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 Phone: (212) 577-2523 ext. 529 Fax: (212) 577-2523 RACHEL T. GOLDBERG rgoldberg@cfal.org Of Counsel February 24, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Testimony at the Mapp Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Suppression Arguments and Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Post-Hearing Submissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Trial Court’s Mapp Decision.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Arguments Before the Appellate Division and Appellate Division’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 POINT I THERE IS NO BASIS IN THE RECORD TO FIND THAT 1) THERE WAS A SUBSTANTIAL LIKELIHOOD THAT APPELLANT’S CAR CONTAINED A WEAPON OR 2) THAT IT POSED AN ACTUAL AND SPECIFIC DANGER TO POLICE AS REQUIRED BY PEOPLE V. TORRES, 74 N.Y.2D 224 (1989); HOLDING OTHERWISE WOULD REINSTATE THE FEDERAL STANDARD FOR PROTECTIVE CAR SEARCHES THAT THIS COURT EXPLICITLY REJECTED IN TORRES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 This Court has jurisdiction to review this preserved question of law. . . . . 23 POINT II THE LOWER COURTS IGNORED THE FIRST REQUIREMENT OF PEOPLE V. TORRES—THAT POLICE HAVE REASONABLE SUSPICION OF A CRIME BEFORE CONDUCTING A PROTECTIVE SEARCH—AND UPHELD THE LEGALITY OF THE SEARCH EVEN THOUGH APPELLANT MERELY COMMITTED A TRAFFIC INFRACTION AND THE CIRCUMSTANCES AFTER THE i CAR STOP DID NOT PROVIDE REASONABLE SUSPICION OF CRIMINALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 This Court has jurisdiction to review this preserved question of law... . . . 31 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 34 ii TABLE OF AUTHORITIES Federal Cases Michigan v. Long, 463 U.S. 1032 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 State Cases People v. Ashley, 45 A.D.3d 987 (3d Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Batista, 88 N.Y.2d 650 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Bigelow, 66 N.Y.2d 417 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23 People v. Borges, 69 N.Y.2d 1031 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Carvey, 89 N.Y.2d 707 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Garcia, 20 N.Y.3d 317 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 29 People v. Garrett, 23 N.Y.3d 878 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015). . . . . . . . . . . . . . . . 1, 12, 13, 22 People v. Hutchinson, 22 A.D.3d 681 (2d Dept. 2005). . . . . . . . . . . . . . . . . . . . . 16 People v. Jenkins, 24 N.Y.3d 62 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Jiminez, 22 N.Y.3d 717 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Jones, 39 A.D.3d 1169 (4th Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. McIntosh, 96 N.Y.2d 521 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Milask, 62 N.Y.2d 147 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Morales, 65 N.Y.2d 997 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 31 iii People v. Mundo, 99 N.Y.2d 55 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim People v. Newman, 96 A.D.3d 34 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011). . . . . . . . . . . . . . . . . . . . . . . 11 People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003). . . . . . . . . . . . . . . . . . . . . . . 16 People v. Sierra, 83 N.Y.2d 928 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Torres, 74 N.Y.2D 224 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim People v. William II, 98 N.Y.2d 93 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Worthy, 261 A.D.2d 277 (1st Dept.1999). . . . . . . . . . . . . . . . . . . . . . . . 16 New York State Statutes C.P.L. § 140.50(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 C.P.L. § 470.35(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 C.P.L.R § 221(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 N.Y. Const., art. I, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 26, 31 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Penal Law § 265.03(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Penal Law § 270.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Vehicle & Traffic Law § 1227.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 iv COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STANLEY HARDEE, : Defendant-Appellant. : ------------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of Hon. Rolando T. Acosta, Justice of the Appellate Division, First Department, entered June 18, 2015 (A2), appellant appeals from a March 26,1 2015, order of the Appellate Division, First Department (A3), People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015), which affirmed a judgment of the Supreme Court, New York County, January 22, 2013, convicting appellant, upon a guilty plea, 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 imprisonment (Charles Solomon, J., at suppression hearing; Michael J. Obus, J., at plea and sentence). This Court initially directed alternative review (“SSM”) under section 500.11 Numbers preceded by “A” refer to pages in appellant’s Appendix.1 1 of the Court of Appeals Rules of Practice, but placed the case on for full briefing as per letter to the parties on December 11, 2015. On August 27, 2015, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. No motion was made for a stay, and appellant is incarcerated pursuant to the judgment. He had no co-defendants. QUESTIONS PRESENTED 1. Whether there is any basis in the record to find that 1) there was a substantial likelihood that appellant’s car contained a weapon or 2) that it posed an actual and specific danger to police as required by People v. Torres, 74 N.Y.2d 224 (1989)? 2. Whether the lower courts ignored the first requirement of People v. Torres—that police have reasonable suspicion of a crime before conducting a protective search—and upheld the legality of the search even through appellant merely committed a traffic infraction and the circumstances after the car stop did not provide reasonable suspicion of criminality? SUMMARY OF ARGUMENT Decades ago, this Court established that, once occupants of a vehicle are stopped by police and frisked without incident, police officers may only search the car without probable cause if there is (1) a “substantial likelihood” that there is a weapon in the car that (2) poses an “actual and specific” threat of harm to the officers. People v. Carvey, 89 N.Y.2d 707, 710-11 (1997) (emphasis added); see People v. Torres, 74 2 N.Y.2d 224 (1989). This is a high bar; reasonable suspicion alone will not justify a car search when the occupants have been removed and frisked without incident. Carvey, 89 N.Y.2d at 711. This Court has twice described circumstances that would permit a protective search of a vehicle under such circumstances. See Carvey, 89 N.Y.2d 707; People v. Mundo, 99 N.Y.2d 55, 59 (2002). In both of those cases, this Court found two facts dispositive: first, that the defendants evinced a willingness to do immediate violence, and second, that they appeared to conceal or grab an object from an area in the car when the police approached. Neither of those factors were present in the case at bar, nor were any other escalating factors, but the trial court and Appellate Division nonetheless upheld the legality of the police intrusion. Here, appellant Stanley Hardee complied with an order to pull over after he was caught speeding and changing lanes without signalling. When police approached, he appeared “nervous” and turned his head to look around the inside of his car a few times, and initially stayed in the car despite police requests that he exit. Hardee ultimately—and willingly—got out of his car, and was frisked without incident. Despite having no reasonable suspicion that he committed a crime, no reason to believe that he had a weapon in the car, and no reason to believe he would use a weapon even if he had one, the police searched his car and found a gun in a bag in the backseat. Because the police based the search on merely nervous behavior, the 3 search was unlawful. Appellant fully preserved this issue. Counsel below argued that the search was illegal because there was no objective reason to believe that Hardee had a gun in the car or that it posed a threat; the trial court disagreed and upheld the search (A42-46). The Appellate Division affirmed, with one justice dissenting (A3-8). The issue presents a question of law because it involves the minimum threshold for searching a car once a defendant has been removed and frisked without incident, and whether there is any record support for the majority’s findings that the totality of the circumstances justified the police search. See People v. Bigelow, 66 N.Y.2d 417, 420- 21 (1985) (“When the issue is the minimum showing necessary to establish probable cause . . . a question of law is presented for our review.”). This case also presents a second, related issue: whether, under Torres, there exists the requirement that, to conduct a protective search, the police must also have reasonable suspicion that a crime has been committed. Torres, 74 N.Y.2d at 226. In Torres, this Court set out two requirements for when an officer may search a vehicle absent probable cause: (1) “reasonable suspicion” of criminal activity, and (2) an articulable basis to fear for his own safety. Torres, 74 N.Y.2d at 224. In upholding the legality of the search absent any suggestion of criminal activity—including reasonable suspicion that Hardee had an illegal gun—the lower courts ignored the first part of the Torres’s first requirement and upheld an illegal search. 4 This issue is preserved because the lower courts relied on Torres in reaching their decisions, and is reviewable because it involves an erroneous interpretation of a legal standard. See People v. Borges, 69 N.Y.2d 1031 (1987); People v. Morales, 65 N.Y.2d 997, 998 (1985). STATEMENT OF FACTS Testimony at the Mapp Hearing On July 31, 2010 just before 1:30am, Sergeant Christopher Siani, Officer Stephen Loud, and Officer Kieran Kailer were driving down Lexington Avenue, about to make a left turn, when Siani and Loud noticed a four-door Dodge Intrepid changing lanes without signaling and driving 50 miles per hour in the 30 miles-per- hour zone (A73-74, A96-97, A135). The police activated their lights and sirens to stop the car for a traffic infraction, and the car pulled over as requested to the right side of Lexington Avenue near 117th Street (A74-76, A99-100, A135-37). The officers did not believe the driver was trying to evade them, and the stop began unremarkably (A76-77, A99-100). Siani and Kailer approached the car on the driver’s side, and Loud approached the passenger side (A76, A137). Appellant Stanley Hardee was driving, and his companion, Alice Simmons, sat in the front passenger seat (A78-79). There were Styrofoam cups with lids in the front console (A169). Kailer commented on Hardee’s speed, and asked what was in the cups (A79-80). Hardee admitted that “there was a little bit of vodka in the cup,” 5 and Kailer reassured him that “it’s not a big deal, relax” (A80, A138). Siani, who was on Hardee’s side of the car and was looking at him throughout the entire encounter, testified that Hardee appeared “very nervous” because he was “wide-eyed, he was looking around the car” (A79-82). He was not moving “like he was putting something away,” but instead was moving as though “he was nervous” (A79-82). When asked to specify where Hardee was looking inside of the car, Siani testified that Hardee “was looking at Officer Kailer, looking back at me, looking at the front passenger, Ms. Simmons, he was looking behind him into the backseat” (A80). Siani testified that he saw Hardee “look in the back of the vehicle . . . [t]wice would be a safe estimate. I don’t think it was much more than four times, but he definitely looked back more than once” (A81). Kailer asked Hardee to stop moving his head around three or four times (A81). Siani never testified that his glances around the car were threatening in any way. Hardee did not appear to be drunk and did not have bloodshot eyes or smell like alcohol, but Siani thought Hardee was acting “hyper” so believed “he might be high or something” (A43-44, A128). Kailer asked Hardee to step out of the car, and initially Hardee refused, shaking his head (A18-19). According to Siani, Kailer asked Hardee to step out of the car a total of two or three times, but once Kailer “reminded him, look, alcohol is not a big deal,” Hardee got out of the car on his own (A82, A108, A139). Loud, who was on the passenger side of the car talking to Simmons and could 6 not see Hardee, became “concerned” when Hardee did not immediately get out of the car, so he crouched down to get a better look inside (A138-40, A160-61). Loud testified that he saw a maroon bag in the backseat of the car (A140), and that he saw Hardee look “back to where that bag was” once or twice (A175-76). During the stop, Loud’s attention was on passenger Simmons (A161). Hardee’s initial refusal to get out of the car did not concern Siani; he explained that “it was a little dialogue going on,” and that eventually Hardee got out of the car on his own; nobody had to touch him or force him to do so (A108-09). The police had no intention of arresting Hardee at this point (A126). To ensure the officers’ safety, Kailer frisked Hardee and did not find any weapons; Hardee was “compliant” but “still nervous” (A83, A109). Sinai or Kailer told Hardee to relax and step back to the rear bumper of the car, which he did (A83- 84, A110). Simmons got out of the car when Loud asked her to (A141). Loud did not frisk Simmons, but guided her to the rear of the car where he could hear Kailer telling Hardee to relax and not to worry (A164, A176). At this point, Siani still did not believe Hardee had committed any crime (A112). Once Simmons was out of the car, Loud went back to the passenger side, climbed in the open front door, and crouched on his knees in the front seat (A142). He first “look[ed] around . . . in the front passenger area” and “where the alcohol containers were” (A166, A169-70). Then he looked into the backseat with a flashlight 7 because Hardee had been looking over his right shoulder; he “then noticed there was a bag on the back floor” (A167, A170). Loud believed that the medium-sized, maroon shopping bag would contain a weapon, so he picked it up by the handles, felt that it was heavy, and peered inside, where he saw a black bag with a handle of a semiautomatic weapon sticking out of it (A142-43, A158, A167). Loud searched the car because he was concerned about weapons, 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. And that’s when I saw the defendant moving around. I thought in his reachable area there could be a weapon. (A141-42). At the time Loud searched the car, Hardee was standing at the rear bumper with Kailer and Siani. The police had not yet attempted to handcuff Hardee and there had not been “any kind of altercation” or “confrontation” between Hardee and the officers (A145, A165-66, A170-71). Had there been any kind of struggle, Loud would not have searched the car but instead would have tried to assist his fellow officers (A165-66, A170). After he found the gun, Loud brought his head out of the car to alert his colleagues, and saw Kailer and Sinai struggling to get handcuffs on Hardee, who was resisting (A145, A172). Siani had decided to handcuff Hardee because once he was at the rear of the car, Hardee looked at the officers, looked back at the car a couple 8 of times, and looked southbound onto Lexington Avenue, which made Siani think “something [wa]s wrong”: he believed that Hardee may have been considering fleeing from or “fight[ing]” with the police (A84-86, A113, A125). Siani testified that Hardee never made any moves indicating that he would have gone back to the car (A114-15). When Loud emerged from the car and saw his fellow officers trying to cuff Hardee, he went to help (A145). Hardee was subsequently indicted for criminal possession of a weapon in the second degree (possessing a firearm outside home or business) and third degree (possessing a defaced firearm) (A9). Suppression Arguments and Decision Post-Hearing Submissions In a written submission after the Mapp hearing held on June 1, 2011, counsel argued that Loud’s observations—seeing Hardee look into the back seat, his hesitation to leave the car, Kailer’s frisk and tone of voice—were “insufficient to justify [a] search of the vehicle” after a mere traffic stop, so the recovered gun should be suppressed (A17). The fundamental question was whether the “police violated defendant’s constitutional rights when they entered his car after a traffic stop and searched the bag on the floor by the back seat” (A11). Citing People v. Carvey, 89 N.Y.2d 707, 711 (1997) and People v. Torres, 74 N.Y.2d 224 (1989), counsel argued that a warrantless search like Loud’s is permitted only where “‘the likelihood of a 9 weapon in the car . . . [is] substantial and the danger to the officer’s safety ‘actual and specific.’’” (A15-16). Loud’s observations only “provided a basis for a hunch, not an objective substantial basis, to believe there was a gun.” (A17-18). Moreover, “[t]here was also no actual and specific danger to the officers in light of defendant’s removal from the car and Kailer and Siani detaining him at the rear of the vehicle.” (A18). Because the circumstances did not justify the search, the gun should be suppressed (A19). In response, the People compared Hardee’s case to that of the defendants in People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005), in which the First Department upheld the search where the defendants refused to keep their hands in sight, and where the officers saw defendant Fludd furtively slide something under a pile of clothes in the back seat (A25-26). Similarly here, because Hardee “was noncompliant, extremely nervous and eventually violently combative,” there was an “actual and specific danger” which justified the search (A28). The Trial Court’s Mapp Decision On November 1, 2011, the court issued a written decision denying suppression of the gun (A45). The court found that the officers lawfully stopped Hardee for a traffic infraction, and that the police had the right to conduct a limited search of the interior of the car after Hardee and Simmons were removed (A44-45). Relying on People v. Mundo, 99 N.Y.2d 55, 59 (2002); People v. Omowale, 83 A.D.3d 614, 616 10 (1st Dept. 2011), as well as Torres and Carvey, the court found that Hardee’s “nervousness, his persistent movements inside the vehicle, his repeated looking into the back seat 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” (A44-45). Newly assigned counsel submitted a motion pursuant to C.P.L.R § 221(d) to reargue because the court misapprehended facts and law (A52-58). The court summarily denied the motion in a written decision on July 10, 2012 (A63). Thereafter, on January 22, 2013, Hardee pled guilty to possessing a loaded firearm in his car . He was adjudicated a persistent violent felony offender and sentenced, as promised, to 16 years’ to life imprisonment (A266-67, A269, A272-73).2 Arguments Before the Appellate Division and Appellate Division’s Decision On appeal, Hardee maintained that the protective search of the vehicle was unlawful under Torres, Carvey and Mundo, so the gun should be suppressed and the indictment dismissed. First, Hardee pointed out that there was not enough evidence to support a finding either that there was a substantial likelihood of a weapon or that it posed an “actual and specific danger” to the officers. Carvey, 89 N.Y.2d at 710-11. That standard could not be met, Hardee maintained, merely through activity that was not concretely linked to the presence of a weapon. Hardee argued that in all cases Hardee retained the right to appeal the court’s suppression decision (A266-67, A269).2 11 that trigger the Torres exception, the police observed two specific actions absent in this case: first, the defendant stashed or reached for something in the car; second, the defendants engaged in some additional dangerous or elusive behavior (Appellant’s Brief at 14-15). Here, by contrast, Hardee merely exhibited nervous behavior at the time of the search, and he did not resist the officers’ attempts to put him in handcuffs until after Loud began his illegal search, so there was no actual or specific reason to believe a weapon in the car posed a danger to the officers. In response, the People conceded that the police did not have probable cause to search Hardee’s car, but relied on Torres and Carvey to justify the search, maintaining that Carvey’s requirement of an actual and specific danger had been met. Specifically, the People argued that Hardee’s looking around the inside his car and to the backseat where the bag was found was “analogous to cases where vehicle occupants were seen attempting to hide or conceal something” (Respondent’s Brief at 18-19). Moreover, they characterized Hardee’s initial reluctance to get out of his car as “threatening” (id. at 19). A majority of the Appellate Division panel rejected Hardee’s claims. The court concluded that Hardee’s “furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness” and were sufficient to justify a protective search of the vehicle. Hardee, 126 A.D.3d at 628. Citing to Mundo and Carvey, the court found 12 that Hardee’s actions “created a ‘perceptible risk’ and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat,” justifying the search. Id. Justice Acosta dissented. He did not dispute that the facts as set forth by the majority were accurate. He maintained, however, that those facts were insufficient to justify the intrusion. He noted that behaving nervously, looking to the back seat, and failing to comply with directives “was not sufficient” to trigger the Torres exception. Id. “In the absence of objective indicators,” the dissenting justice concluded that “the search was unlawful since no actual and specific danger threatened the safety of the officers.” Id. at 628-29. This appeal follows. 13 ARGUMENT POINT I THERE IS NO BASIS IN THE RECORD TO FIND THAT 1) THERE WAS A SUBSTANTIAL LIKELIHOOD THAT APPELLANT’S CAR CONTAINED A WEAPON OR 2) THAT IT POSED AN ACTUAL AND SPECIFIC DANGER TO POLICE AS REQUIRED BY PEOPLE V. TORRES, 74 N.Y.2D 224 (1989); HOLDING OTHERWISE WOULD REINSTATE THE FEDERAL STANDARD FOR PROTECTIVE CAR SEARCHES THAT THIS COURT EXPLICITLY REJECTED IN TORRES. Under our State Constitution, when police stop a car for a traffic infraction, remove the occupants, and frisk them without incident, the officers may not then conduct a search of the car based on the theoretical possibility that there is a weapon in the car and that the occupants will go back to the car and use it. People v. Mundo, 99 N.Y.2d 55, 58 (2002); People v. Carvey, 89 N.Y.2d 707, 710 (1997); People v. Torres, 74 N.Y.2d 224 (1989). The undisputed facts in this case add up to no more than pure supposition that appellant Stanley Hardee had a weapon in his car, or that he would use it against the officers. Under the circumstances, New York’s constitutional protections did not permit the police to search the car. The lower courts erred in failing to suppress the gun, and Hardee’s plea should be vacated and the indictment dismissed. N.Y. Const., art. I, § 12. In Torres, this Court rejected the broad federal approach to protective 14 searches during car stops enunciated in Michigan v. Long, 463 U.S. 1032 (1983), finding instead that a search based only on a theoretical belief that a person might gain control of a weapon was inconsistent “with the privacy rights guaranteed by our State Constitution (N.Y. Const, art I, § 12).” Torres, 74 N.Y.2d at 227; see Carvey, 89 N.Y.2d at 710 (reaffirming Torres’s “reject[ion of) the conclusions of the United States Supreme Court in Michigan v. Long”). As further explained by this Court in Carvey, officers may only conduct a limited search of a vehicle once the occupants have been removed and frisked without incident when there is (1) a “substantial” “likelihood” of a weapon being in the vehicle that (2) presents an “actual and specific” danger to the officers. Carvey, 89 N.Y.2d at 711. Under that high bar, “reasonable suspicion alone will not suffice.” Id. The facts in Torres illustrate just how difficult it is to meet this exception to the probable cause requirement. There, the police received a predictive, anonymous tip that a homicide suspect would arrive at a particular address in a black Eldorado, carrying a gun in a shoulder bag. The suspect arrived just as the caller had described, and the police ordered him out of the car and frisked him without incident, and then searched his shoulder bag in the car. This Court found the car search illegal. Even though the police “may have had a reasonable basis for suspecting the presence of a gun,” there was nothing more to indicate that anybody in the car would actually use that gun, so the police search was illegal. Torres, 74 N.Y.2d at 227 (emphasis in 15 original). In the 26 years since Torres, this Court has only twice identified circumstances that create a strong likelihood of a weapon in the car that poses a danger. In both cases the defendant appeared to hide something inside the car and demonstrated an immediate willingness to use a weapon. Both dispositive facts are absent in the case3 at bar. In Carvey, after the police legally stopped a car for a traffic infraction, an officer first noticed the defendant (a passenger in the rear seat) bend down and place something under the seat with his right hand, and then noticed that he was wearing a bulletproof vest. Carvey, 89 N.Y.2d at 709. This Court found that a combination of hiding something under the seat from police and wearing a bullet poof vest “demonstrates its owner’s readiness and willingness to use a deadly weapon,” warranting a search. Id. at 712 (emphasis in original). Five years later, in Mundo, 99 N.Y.2d 55, police attempted to stop a car for an As the First Department has noted, since Carvey and Mundo were decided, every3 department has required both a movement suggesting that a motorist was reaching for or hiding a weapon plus some suggestive factor. People v. Newman, 96 A.D.3d 34, 42 (2012) (citing People v. Ashley, 45 A.D.3d 987 (3d Dept. 2007) (both driver and passenger reached toward the passenger area and defendant had just sold drugs); People v. Jones, 39 A.D.3d 1169 (4th Dept. 2007) (driver reached into center console and appeared to have drug proceeds in his pocket); People v. Hutchinson, 22 A.D.3d 681 (2d Dept. 2005) (occupants reached toward center console, tried to hide under a coat, and refused to show their hands); People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003) (defendant who matched description of a robbery suspect reached under driver’s seat, pushed police officer’s hand, and ran away); People v. Worthy, 261 A.D.2d 277 (1st Dept.1999) (defendant hid in the back seat, a passenger reached towards the floor, and the car may have been stolen). 16 illegal turn, but the car sped away. During the pursuit, the car almost hit a pedestrian crossing the street. Id. at 56. The police also observed the defendant turn around to look at the officers and then secret something in the back seat. Id. This Court upheld the subsequent search, finding that the attempt to flee, the defendant’s furtive movements, and the “obvious lack of concern for the safety of others” created the reasonable belief that there was a weapon in the car that posed a specific safety danger. Id. at 59. Nothing observed by the officers in this case remotely resembles the circumstances in Carvey and Mundo. Allowing a protective search under the circumstances here would virtually nullify the Torres rule and reinstate the federal standard rejected by this Court. In both Carvey and Mundo, the defendants appeared to hide something in the car once police stopped them. Here, by contrast, there was no suggestion that either Hardee or his companion committed the furtive act of reaching for or stashing something that might be a weapon. In fact, Siani specifically testified that it did not appear as though Hardee was trying to hide anything (“It wasn’t movement like he was putting something away as much as it was—he was just nervous” (A81)). Perhaps more significant, in both Carvey and Mundo, the defendants also demonstrated a disregard for others’s safety and willingness to commit an immediate, violent act. In Carvey, this Court found that the bulletproof vest indicated the 17 owner’s “present readiness to use an available firearm,” 89 N.Y.2d at 709. This Court found that “an ‘inherent linkage between a vest and possession of a firearm’” would meet the Torres rule, but something less would not. Id. (quoting People v. Batista, 88 N.Y.2d 650, 655 (1996)). In Mundo, the driver tried to evade the police and almost ran over a pedestrian, showing a “lack of concern for the safety of others.” 99 N.Y.2d at 59. This extremely reckless and dangerous behavior indicated a specific threat to police not present in Hardee’s case. The First Department’s decision therefore starkly conflicts with this Court’s jurisprudence, and essentially applies the federal “theoretical possibility” test this Court flatly rejected in Torres. According to the First Department’s decision, a protective search of a vehicle is permissible even if there is nothing associated with the presence of a weapon, no indication of a concealed weapon, and no indication that the occupants are willing to commit violence. The First Department’s holding ignores the dispositive facts in Carvey and Mundo that justified the searches and distinguished those cases from the unlawful search in Torres—namely, a furtive movement suggesting that an occupant hid something from the police, and something additional, such as a bulletproof vest or nearly running somebody over, that would suggest either inherent linkage to a weapon or that the occupants would commit imminent violence. 18 Hardee’s actions—pulling the car over without incident, turning his head a couple of times to look in to the back seat of his car where there was a shopping bag, and initially refusing, but ultimately complying, with the request to step out of his car—were benign compared to the defendants’ actions in Torres, Mundo, and Carvey. Hardee pulled over when directed to do so, and his initial lack of response to Kailer’s first demands to get out of the car were not threatening or hazardous, bearing no resemblance to the Mundo defendant’s reckless attempts to evade police. Hardee looking around his own car a few times had no “inherent linkage” to the “possession of a firearm.” Cf. Carvey, 89 N.Y.2d at 709 (noticing defendant wearing bulletproof vest). If the police cannot conduct a protective search where they have a reliable tip explaining that a suspect wanted on homicide charges had a gun in his car, then certainly briefly glancing around one’s car a few times and looking “wide- eyed” during a stressful encounter cannot permit one. As noted above, there was no suggestion that the officers observed Hardee or Simmons attempt to hide or remove anything in the car, as the Carvey and Mundo defendants did. Instead, Hardee’s actions were, as Siani himself consistently characterized them, expressions of nervousness (A79, A80, A81, A83, A86, A106). Hardee’s wide eyes, moving his head to look into the back seat, and even his delay in emerging from his vehicle until Kailer asked him two to four times—particularly because Hardee exited the car once Kailer reassured him that the alcohol was “not a big deal”— are 19 the kind of nervous behaviors that, without more, do not justify a police search. This Court recently stressed that acting “a little [furtive]” and “looking back” in one’s seat are the kind of “mere nervousness” that does not even give rise to the “founded suspicion of criminality” allowing a common law right to inquire. People v. Garcia, 20 N.Y.3d 317, 320, 324 (2012). If the kind of nervous behavior exhibited by Hardee would not even allow an officer to ask about weapons, it certainly did not provide the “substantial likelihood”—something short of probable cause but higher than reasonable suspicion to believe there was a dangerous weapon—to justify a warrantless search.4 Notably Siani, the officer who had more opportunity to watch and interact with Hardee, never said he believed there was a weapon in the car and did not suspect Hardee of committing any crime. Instead, it was Loud who illegally searched Hardee’s car, even though he acknowledged that his focus during the stop had been on Simmons and that he could not even see Hardee until he crouched down to look into the car once or twice (A161). The First Department cited Kailer’s frisk of The First Department went into great length about Hardee’s struggle with police at the4 back of the car, but these actions are irrelevant to the analysis of whether the initial search was lawful. When considering the legality of police intrusion, the inquiry must focus on whether the police action “was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” People v. William II, 98 N.Y.2d 93, 98 (2002); see also Torres, 74 N.Y.2d 224. Where a police intrusion is not justified in its inception, it cannot be validated by a subsequently acquired suspicion. William II, 98 N.Y.2d at 98. Here, it is undisputed that Loud began searching the car before or simultaneously with Hardee’s resistance to being handcuffed, and, in any case, Loud could not see what Hardee was doing at the back of the car until after he illegally searched it (A84, A86, A141). 20 Hardee as contributing to Loud’s concerns (A4). However, the Torres exception considers whether an intrusion is reasonable after the passengers have been ordered out of the car and frisked. The frisk itself cannot provide the requisite cause to further intrude on occupants’ privacy rights. Ultimately, Loud’s beliefs were not only unreasonable and unjustified by the facts, but not shared by his fellow officers. In any case, even if Hardee’s nervousness and initial reluctance to get out of the car could support some sort of generalized suspicion on the part of the police, there were no specific indicators that there was “‘a weapon in the vehicle [that] present[ed] an actual and specific danger to their safety.” Carvey, 89 N.Y.2d at 712. At most, they provided nothing more than an insufficient hunch. This is particularly5 so where Hardee admitted to having alcohol in the car, and his nervousness could logically have been attributed to that admission. The uncontested facts demonstrate that Loud searched the car because Hardee turned his head to look into the back seat of his own car a few times even after police asked him not to, and he initially refused to get out of the car. That does not qualify as “furtive” behavior, something clandestine or sneaky, comparable to stashing or grabbing something under a seat upon seeing the police. The Appellate Division’s attempt to justify the search by calling Hardee’s movements “furtive” threatens the Siani testified that Hardee only looked to the back of the car approximately twice,5 (A81), and Loud testified that he saw Hardee look into the back seat where he later found the bag just once or twice (A175-76). Given that Hardee also looked at the officers and towards his passenger several times (A81), he clearly was not preoccupied with anything in the back seat. 21 constitutional rights of the driving public and is contrary to this State’s expressed commitment to its citizens’ privacy interests. To allow police to search a car based only on the driver’s nervousness and initial reluctance to get out of the car would subject scores of people—many of whom are likely to be nervous during a traffic stop—to a serious privacy intrusion. In sum, record evidence does not support the Appellate Division’s determination that Hardee’s behavior gave rise to a “substantial likelihood” that there was a weapon in the car that posed an “actual and specific threat”, as required by law. As the dissenting judge in the Appellate Division found, there are no “objective indicators” of a “substantial likelihood that a weapon was located in defendant’s car.” Hardee, 126 A.D.3d at 628. The circumstances in Mundo and Carvey demonstrated that the defendants were seeking both to evade apprehension by the police and to conceal something from them, and were willing to disregard the safety of others and engage in immediate violence, but the same cannot be said here. Consequently, the search of Hardee’s car was unlawful, and the Appellate Division erred in upholding the lower court’s suppression ruling. This Court should suppress the evidence derived from the officers’ unlawful search of the car, vacate Hardee’s plea, and dismiss the indictment. This Court has jurisdiction to review this preserved question of law. Although many search and seizure issues present mixed questions of law and 22 fact that preclude this Court’s review, no such bar operates here. The issue before this Court concerns the minimum standard for a protective search once a defendant has been removed and frisked without incident, and whether there is any record support for the majority’s findings that the totality of the circumstances justified the police search of Hardee’s car. This case therefore presents a pure issue of law. See People v. Bigelow, 66 N.Y.2d 417, 420-21 (1985) (“When the issue is the minimum showing necessary to establish probable cause . . . a question of law is presented for our review.”). Here, the facts are not at issue; the credibility of the officers is not at issue, nor does resolution of the case depend on drawing differing inferences from the facts. The dispute between the majority and the dissent revolved around whether the undisputed facts met the legal standard governing protective searches—a dispute of law, not fact. The specific question is whether the People met their burden of showing that the police intrusion into Hardee’s vehicle was justified as a matter of law given the established facts. As in People v. Jenkins, 24 N.Y.3d 62 (2014), in which the Court of Appeals considered the issue of “whether a police officer’s warrantless search of a closed metal box in defendant’s home was reasonable under the ‘exigent circumstances’ exception to the warrant requirement,” this issue is reviewable by the Court of Appeals. See also, e.g., People v. Jiminez, 22 N.Y.3d 717 (2014) (considering whether People met their burden of demonstrating that exigent 23 circumstances existed that trumped warrant requirement); People v. McIntosh, 96 N.Y.2d 521 (2001) (considering whether boarding a bus coming from area known for being a source for drugs can trigger a request for information; People v. Sierra, 83 N.Y.2d 928 (1994) (considering whether flight in combination with a defendant grabbing his waistband gave rise to reasonable suspicion). In addition to presenting an issue of law, the issue was fully preserved below. After the hearing, counsel below argued in depth that the search of the vehicle was not permitted. In response, the prosecutor argued that the protective search doctrine supported the police officer’s actions. The hearing court agreed with the prosecutor and specifically referenced and relied upon Torres, Carvey, and Mundo. The prosecution has never contested that this claim was preserved. Because the legal claim was fully preserved, the Court has jurisdiction to review it. See C.P.L. § 470.35(1). 24 POINT II THE LOWER COURTS IGNORED THE FIRST REQUIREMENT OF PEOPLE V. TORRES—THAT POLICE HAVE REASONABLE SUSPICION OF A CRIME BEFORE CONDUCTING A PROTECTIVE SEARCH—AND UPHELD THE LEGALITY OF THE SEARCH EVEN THOUGH APPELLANT MERELY COMMITTED A TRAFFIC INFRACTION AND THE CIRCUMSTANCES AFTER THE CAR STOP DID NOT PROVIDE REASONABLE SUSPICION OF CRIMINALITY. In People v. Torres, the Court of Appeals established a two-step test for determining when police can conduct a protective search of a car without probable cause, after the police have already removed and frisked its occupants without incident. For such a search to withstand scrutiny, an officer must have 1) reasonable suspicion to believe that criminal activity is afoot and 2) an articulable basis to fear for his safety. Torres, 74 N.Y.2d 224, 226 (1989). Torres involved an investigatory stop, where the police had a reasonable suspicion of criminal activity at the time of the initial stop and frisk, a finding this Court directly addressed. See Torres, 74 N.Y.2d at 226, 231, 231, 233 (describing facts and calling the defendant a “suspect”). In People v. Carvey, 89 N.Y.2d 707 (1997) and People v. Mundo,99 N.Y.2d 55 (2002), however, cases that both involved traffic stops, this Court did not address the reasonable suspicion component, although it implicitly found it satisfied through unfolding events. 25 This Court should now make clear what was implied in Carvey and Mundo: the two-step Torres rule applies even where the police initially pull a car over for a traffic stop. The analytically distinct requirement of reasonable suspicion of criminal activity cannot be elided in such cases, and, unless unreasonable suspicion of criminal activity develops from the upholding events, the police have no occasion to search the car, and neither the motion court, nor the reviewing court, should even consider Torres’s second prong. Here, the Appellate Division ignored the first step and failed to consider whether police had reasonable suspicion of a crime when they searched Hardee’s car after a traffic stop. Instead, it upheld the search based solely on Torres’s second requirement, finding that the unfolding circumstances imparted a reasonable belief that Hardee might gain control of a weapon. Because the facts do not satisfy either requirement of the Torres test, this Court should suppress the gun, vacate Hardee’s plea, and dismiss the indictment. N.Y. Const., art. I, § 12. At the very least, the Appellate Division’s incomplete analysis of the police intrusion, occasioned by its failure to apply the two steps of the Torres rule, requires this Court to remand Hardee’s case for a factual review using the proper legal standard. In Torres, this Court set out two requirements for when an officer may search a vehicle absent probable cause: “[1]reasonable suspicion that criminal activity is afoot and . . . [2] an articulable basis to fear for his own safety.” Torres, 74 N.Y.2d 26 at 226, 229; see Mundo, 99 N.Y.2d at 60-61 (Ciparick, J., dissenting) (characterizing the Torres rule as a two-part test requiring both reasonable suspicion of criminal activity and facts giving rise to an actual and specific danger). In Torres, the first requirement was met because police stopped the defendant’s car based on the reasonable belief that he had committed a homicide. However, this Court reversed Torres’s conviction based on the second requirement: the police did not have reasonable belief that Torres could gain control of a weapon. In Torres, the reasonable suspicion requirement was met before the police stopped the defendant’s car, but this Court has also applied the Torres test when a car was pulled over merely for a traffic violation. See Mundo, 99 N.Y.2d 55; Carvey, 89 N.Y.2d 707. In both Carvey and Mundo, the cars were initially stopped for traffic infractions, but in both cases, circumstances unfolded after the stops that gave the officers reasonable suspicion that criminal activity was afoot, thus satisfying both parts of the two-part Torres test. In Carvey, while this Court did not explicitly address the reasonable suspicion requirement, it rejected the defendant’s argument that “the police had no information connecting him to any crime or weapon.” Carvey, 89 N.Y.2d at 711 (emphasis added). Instead, it found that the same behavior that gave rise to the reasonable belief that the defendant had a gun and that he would use, it also supplied reasonable suspicion to believe the defendant had committed a crime: the defendant appeared to stash 27 something under the seat and was wearing a bulletproof vest. This allowed the police to reasonably believe that the defendant had a loaded gun in the car, a crime in violation of Penal Law § 265.03. See Carvey, 89 N.Y.2d at 712. In Mundo, this Court also omitted explicit reference to Torres’s first requirement, but the facts nonetheless supported a finding of both reasonable suspicion of a crime, and an independent reason for suspecting there was a weapon in the car that its occupants might use against police. Police initially attempted to stop defendant’s car for a traffic violation. However, they quickly acquired reasonable suspicion of a crime once the car fled from police and almost hit a pedestrian while doing so, in violation of Penal Law § 270.25. See Mundo, 99 N.Y.2d at 57. Then, while police were pursuing the car, they saw the defendant trying to stash something in the car. This suspicious, furtive movement, in combination with the dangerous flight from police, allowed the officers to reasonably conclude that there was a dangerous weapon in the car and that the defendant might use it. In both Carvey and Mundo, then, this Court implicitly found both reasonable suspicion and a substantial likelihood of a weapon that posed a danger. However, because this Court focused on the second part of the Torres test rather than also explicitly reasserting the requirement that police must have reasonable suspicion before conducting a protective search once occupants have been removed and frisked, the Appellate Division in this case elided that requirement altogether, and 28 instead mechanically—and erroneously—applied only the second part of the Torres test. The Appellate Division here failed to employ the two-step analysis required under the logic of Torres, and a proper analysis reveals that police had neither reasonable suspicion of criminality nor a substantial likelihood there was a weapon in the car that posed an actual and specific danger. Police pulled Hardee over for a traffic infraction, and nothing happened before Loud’s search that gave the police reasonable suspicion that criminal activity was afoot. Hardee was speeding and changing lanes without signaling, neither of which are crimes. Hardee admitted he had alcohol in the car, which is also merely a traffic infraction, not a crime. See Vehicle & Traffic Law § 1227. He also did not appear to be drunk (A106-07, A128). In fact, the court below specifically asked Siani whether he had seen anything to make him believe a crime had occurred after Hardee had been frisked and once was at the back of the car—the time at which Loud searched the car—and Siani said, “[t]here was no crime I knew of” at that point (A112). Hardee’s nervous behavior upon seeing police did not give rise to reasonable suspicion, either. See, e.g., People v. Milask, 62 N.Y.2d 147, 156 (1984) (nervousness not an indication of criminality); People v. Garcia, 20 N.Y.3d 317, 320, 324 (2012) (acting “a little [furtive]” and “looking back” in one’s seat do not provide a founded suspicion of criminality). Nor did it provide a reason for police to believe there was a substantial likelihood there 29 was a weapon in the car that posed an actual and specific danger. See Point I, supra. Articulating the importance of Torres’s first requirement would prevent lower courts from losing sight—as they did here—of one of our State’s fundamental privacy rules: that police must have reasonable suspicion that a defendant is involved in criminal activity in order to perform a warrantless search of a vehicle. After all, as its opening lines make clear, the Torres rule operates within the confines of C.P.L. § 140.50(1), which itself requires reasonable suspicion of a crime: “An officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by C.P.L. § 140.50(1).” Torres, 74 N.Y.2d at 226. By making clear that the reasonable suspicion requirement pertains under Torres where a person is pulled over for a traffic infraction, this Court will provide lower courts with the analytical framework needed to ensure consistency in the application of the standard and, thus, greater fairness in the result. In sum, because the police in the case at bar searched Hardee’s car after a traffic infraction and unfolding events did not provide reasonable suspicion of criminal activity (or reasonable belief that Hardee could gain control of a weapon, see Point I, supra), this Court should suppress the gun, vacate Hardee’s plea, and dismiss 30 the indictment. N.Y. Const., art. I, § 12. As an alternative, this Court should remand Hardee’s case to the Appellate Division for review of the facts using the proper legal standard. This Court has jurisdiction to review this preserved question of law. This issue presents a pure issue of law for this Court’s review: whether, under Torres, there still exists the requirement that police may search a car after the occupants have been removed and frisked without incident only when they have reason to suspect that a crime—as opposed to a traffic infraction—has been committed at the time of their search. The First Department misconstrued Torres, on which it and the lower court relied, to find that no criminal activity must be afoot before an officer can conduct a protective search. An issue that involves a court’s application of an erroneous legal standard presents a reviewable issue of law. See People v. Morales, 65 N.Y.2d 997, 998 (1985). Moreover, where the case calls for the determination of a governing standard, an issue of pure law is presented. Id. Beyond presenting a pure issue of law, the issues of whether the facts of this case met the Torres standard and whether the Appellate Division appropriately applied that standard, were preserved. After the suppression hearing, counsel below argued in depth that the search of the vehicle was not permitted, and relied on Torres to do so. The prosecutor cited to Torres for controlling legal precedent, as did 31 counsel in his motion to reargue the case (A14-19, A53-54). Even though the first prong of Torres was not directly addressed by the trial court or First Department, that does not bar review of the issue. Where the lower court reaches a single legal ruling that contains a multi-factor test, an appellate court can review all prongs of a multi-factor test even though “the nisi prius court neglected to mention an element of the multifactor . . . test.” People v. Garrett, 23 N.Y.3d 878, 885 n.2 (2014). Here, the Appellate Division explicitly considered whether Torres applied to the search of Hardee’s car, and the fact that the court did not mention the first prong of the two- part test does not bar appellate review. 32 CONCLUSION FOR THE REASONS STATED ABOVE IN POINT I, THIS COURT SHOULD SUPPRESS THE GUN, VACATE APPELLANT’S PLEA, AND DISMISS THE INDICTMENT; FOR THE REASONS STATED IN POINT II, THIS COURT SHOULD SUPPRESS THE GUN, VACATE APPELLANT’S PLEA, AND DISMISS THE INDICTMENT OR, AS AN ALTERNATIVE, REMAND TO THE APPELLATE DIVISION. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation ___________________________ Rachel T. Goldberg Of Counsel February 24, 2016 33 PRINTING SPECIFICATIONS STATEMENT 1. Processing System: WordPerfect x4. 2. Typeface: Garamond. 3. Point Size: 14 point text; 12 point footnotes. 4. Word Count: 7,924 words (excluding Table of Contents, Table of Authorities, and Appendix). 34