The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017To be argued by RACHEL T. GOLDBERG New York Supreme Court Appellate Division -- First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - New York County Ind. No. 5558/10 STANLEY HARDEE, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 rgoldberg@cfal.org Phone: (212) 577-2523 ext. 529 Fax: (212) 577-2523 RACHEL T. GOLDBERG Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT IN REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT THE SEARCH OF APPELLANT’S CAR WAS ILLEGAL, AND THE FRUITS OF THAT ILLEGAL SEARCH MUST BE SUPPRESSED (Responding to RB, Point I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . A-1 i TABLE OF AUTHORITIES State Cases People Carvey, 89 N.Y.2d 707 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Anderson, 17 A.D.3d 166 (1st Dept. 2005).. . . . . . . . . . . . . . . . . . . . . . 10 People v. Newman, 96 A.D.3d 34 (1st Dept. 2012). . . . . . . . . . . . . . . . . . . . . . . 2, 9 People v. Packer, 49 A.D.3d 184 (1st Dept. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Pena, 155 A.D.2d 310 (1st Dept. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Robinson, 74 N.Y.2d 773 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Torres, 74 N.Y.2d 224 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996). . . . . . . . . . . . . . . . . . . . . . 9, 10 People v. William II, 98 N.Y.2d 93 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STANLEY HARDEE, : Defendant-Appellant. : ------------------------------------------------------------------------x ARGUMENT IN REPLY This brief is submitted in reply to the People’s response brief (“RB”) received by appellant via email on January 6, 2015, and in further support of the argument made in appellant Stanley Hardee’s April 15, 2014, main brief (“AB”).1 ARGUMENT THE SEARCH OF APPELLANT’S CAR WAS ILLEGAL, AND THE FRUITS OF THAT ILLEGAL SEARCH MUST BE SUPPRESSED (Responding to RB, Point I) The People distort the facts elicited at Stanley Hardee’s suppression hearing to give the misimpression that police were justified in searching Hardee’s car after he was frisked without incident. Even if it were theoretically possible that there Citations to pages of the record follow the same numbering format as in the main1 brief. 1 was a weapon Hardee’s car, the People did not meet their burden at the suppression hearing of demonstrating that the so-called “Torres exception” applied: that there was a “substantial likelihood” that there was a weapon in the car that posed an “actual and specific” threat of harm to the officers, as required by law. People Carvey, 89 N.Y.2d 707, 710-11 (1997) (emphasis added); People v. Newman, 96 A.D.3d 34, 42 (1st Dept. 2012); see People v. Torres, 74 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 (AB 11-12). The People and the court below clearly lost sight of this high burden, but this Court should not. An objective reading of the facts compels the conclusion that, despite the People’s unsubstantiated claim that “many of the factors” that trigger the Torres exception were present in Hardee’s case, the police search was unconstitutional. The People misrepresent Hardee’s behavior in the car to nullify the constitutional objections to Loud’s search. They claim that Hardee was “rapidly looking around, particularly behind the front passenger seat. Indeed, he was looking directly at a maroon shopping bag” (RB 18). They contend that this demonstrated Hardee’s “preoccup[ation] with an item located inside the vehicle at the time”, which in turn justified Loud’s search (RB 19). However, both Siani and Loud testified that Hardee only looked to the back of the car twice (Siani 18, Loud 2 112-13). Given that Hardee also looked at the officers and towards his passenger several times (Siani 18), he clearly was not “preoccupied” with the backseat. Moreover, Siani, who was on Hardee’s side of the car and was looking at him throughout the entire encounter, never testified that he felt Hardee was preoccupied with anything or that his glances around the car were threatening in any way, but instead repeatedly stated that Hardee merely appeared “nervous” (Siani 17, 18, 20). Loud, who actually conducted the illegal search, was on the passenger side of the car talking to Alice Simmons and could not even see Hardee until he crouched down to look into the car once or twice, and admitted that for most of the stop, his focus was on the passenger, not on Hardee (Loud 75, 97- 99). 2 Acknowledging that nervousness alone cannot justify a car search, the People had to claim that Hardee engaged in other “highly suspicious” behaviors throughout the encounter (RB 17-18). Yet these behaviors, even when taken together, cannot add up to a “substantial likelihood” that there was a weapon that Even if it were true that looking at a bag in the backseat indicated the viewer’s2 preoccupation with it, that alone gives no reason to assume that the bag contains a weapon; the bag could easily contain other kinds of contraband such as narcotics or alcohol. In any case, the Torres exception requires not only belief that the car contain a weapon, but that it presents an actual and specific danger to the officers. By the time of Loud’s search, Hardee had been frisked and was at the back of the car surrounded by two armed and uniformed officers. At that point, “[a]ny residual fear that the officers may have had about the suspects’ ability to bolt and retrieve a gun from the car could have been eliminated by asking the suspects to move away from the vicinity of the car.” People v. Pena, 155 A.D.2d 310 (1st Dept. 1989) (citing Torres, 74 N.Y.2d at 230). 3 posed an “actual and specific” danger to the officers as required by law. For instance, while it is true that a court may consider the “initial circumstances of a stop” as the People point out (RB 16), here, the stop was completely unremarkable: Hardee was speeding, but he was not driving recklessly, and he pulled over when requested (Siani 11-12, 36-37). Siani specifically testified that he did not believe Hardee was trying to evade police, which has been cited as a factor that could help trigger the Torres exception (Siani 36-37; RB 16). Moreover, while it is true that Hardee would not get out of the car the first two or three times Kailer asked him to, this refusal did not concern Siani (Siani 45-46). Siani 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 (Siani 45-46). Siani himself used the word “compliant” to describe Hardee once he got out of the car, and testified that Hardee remained cooperative as the police frisked him and as he moved to the back of the car upon request (Siani 46-47). Contrary to the People’s contention that Loud spotted the maroon bag in the backseat of the car early on in the encounter, and that Hardee was clearly so obsessed with this bag that Loud believed there was a weapon in it that Hardee was willing to use (RB 18-19, 20), Loud repeatedly indicated that he did not see what was in the back seat until after he decided to search the car. The following colloquy with the prosecutor makes this clear: 4 Q : Where did you actually look when you stepped into the car? A: I stepped in the car, there was some, like, small like deli bags on the floor. They appeared to be empty. I just looked at those. I looked at the Styrofoam, where the vodka drinks were. And I had like my knees on the front passenger’s seat and I leaned over to see, to look in the back. Q: Why did you look in the back? A: Because when I was looking at the defendant, it looks like he was looking over his right shoulder, and that’s when I noticed the bag. It appeared to me he was looking at that bag. (Loud 79) (emphasis added). Later on in his testimony, Loud again indicated that he noticed the bag only after he started searching the backseat of the car (Loud 107). Given that Loud did not see the bag until after he started his search, there is no way that, as the People claim, Loud believed that “an actual and specific danger to the officers’ safety was located within the shopping bag behind the passenger seat” which justified his search (RB 21).3 The People are also wrong to claim that Loud’s “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” (RB 21). In fact, Loud first “look[ed] around . . . in the front passenger area” and then looked It is true that Loud also said, when asked about it on redirect examination, that he first3 noticed the bag before Hardee got out of the car (Loud 112-13). However, it is un likely that Loud would have been able to see such detail because it was dark outside, the car was apparently not illuminated, and Loud was not using his flashlight to look inside the car. Even if this version of Loud’s story were physically possible, it merely means that Loud’s testimony about when he first noticed the bag was contradictory at best. 5 “where the alcohol containers were” (Loud 73, 103). Only then did he look into the backseat and “then noticed there was a bag on the back floor” (Loud 107). Of course, given that Loud only saw Hardee look into the backseat twice, it is no surprise that he looked around at other areas of the car before he spotted the maroon bag. If Loud actually believed there was a gun in that bag, he would have testified unambiguously that, as soon as he could, he moved immediately to grab the gun and make it safe. Instead, he said only that he searched Hardee’s car because of Hardee’s nervous behavior, his initial refusal to get out of the car, and Kailer’s frisk, and then looked around the car until he spotted something that could theoretically contain a gun. This is precisely the kind of unsubstantiated hunch that the narrowly-tailored Torres exception refuses to recognize. Given that Loud did not have a legal reason to search Hardee’s car when he did, the People point to Hardee’s behavior while he was standing at the back of his car to help justify the search (RB 19-20). 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). 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; see also People v. Packer, 49 A.D.3d 184, 185 (1st Dept. 2008) 6 (recognizing “basic premise” of search-and-seizure law that “police-initiated intrusions must be justified at their inception”). Here, 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 (Loud 78; Siani 21, 23).4 The People quote Siani as saying that he believed Hardee “was hiding something” and that “something [wa]s wrong” (RB 24, Siani 23, 49) to support their spurious argument that the police were justified in searching Hardee’s car. Siani never said he was concerned there may be a weapon in the car. Instead, the full context of this quote reveals that Siani was concerned that Hardee might run away, but Siani did not become concerned about this flight until Hardee was already at the back of the car, by which time Loud had already begun his illegal search (Siani 23, 49-52). In any case, Siani specifically testified that Hardee never made any moves indicating that he would have gone back to the car, but if anything, he just wanted to leave the scene (Siani 51-52). Moreover, Siani testified that at that point, he had not seen anything that would lead him to believe Hardee had committed a crime (Siani 49). Therefore, despite the People’s contentions, Hardee’s behavior at the back of his car did not “escalate” the encounter such that The People misrepresent the record when they claim that “Officer Loud saw defendant4 ‘moving around’ unsecured outside the car” (RB 19-20). The People cite to Loud’s testimony on page 79 of the record for this proposition, but at that point Loud was clearly talking about seeing Hardee moving around while still in the car, not once he had been removed. 7 it justified Loud’s search at the time it occured (RB 19). To be sure, courts should consider the totality of the circumstances when evaluating the legality of police intrusion (RB 14). Considering all of the factors and circumstances in this case, however, the most plausible reason for Hardee’s actions was the fact that he was driving with open containers of alcohol in the car, and that he was driving while drinking. Loud knew this at the time of his search, and yet completely disregarded the most obvious explanation for Hardee’s nervousness. If Loud truly believed there was a weapon in the car and that Hardee was going to use it—an assumption which Siani did not share —that belief was unreasonable.5 It is of course true that police officers face an inordinate risk when approaching individuals in automobiles. That is why the law allows the police to order occupants out of the car even without an articulable reason for believing the occupants have a weapon. See People v. Robinson, 74 N.Y.2d 773, 774 (1989). However, once police have removed occupants and frisked them without incident, The facts of this case not only demonstrate that Loud’s search was unconstitutional,5 but also suggest the real reason Loud conducted this illegal search. At the time of Hardee’s arrest, all three officers were on patrol as part of the anti-crime unit whose focus that evening was on “reducing violent crimes such as felonious assaults, robberies, firearms, possession, weapons possession” in Harlem (Siani 9, Loud 70). As the People point out, these officers were assigned to this patrol because of a spike in violent crime (RB 18), and their explicit assignment was to “discover and make arrests for violent crimes . . . . including gun possessions” (Siani 29). The only way Loud could have made a felony arrest was to have found contraband in the car. Therefore, Loud had strong motivation to believe that Hardee’s nervousness and an initial refusal to get out of the car were dangerous, because that might justify a search of the car. Nonetheless, the search was unwarranted and illegal. 8 our law does require the police to be able to articulate additional information that justifiably heightened their safety concerns. Despite the People’s claims, a critical factor in this analysis is whether a suspect has made a furtive movement suggesting he had reached for or hidden a weapon. As this Court itself has noted, “every Department has found that the combination of 1) movements within a car suggesting that the defendant was reaching for something that might be a weapon and 2) some other suggestive factor(s) was sufficient to justify the limited intrusion of searching the area where a defendant’s movements took place.” Newman, 96 A.D.3d at 42 (emphasis added) (citations omitted) (AB 12-13). Conversely, no appellate court has found that, after a routine traffic stop, the Torres exception could be triggered without some kind of furtive movement. Because Hardee made no such furtive movement, if this Court finds to the contrary, it will have allowed the exception to swallow the rule.6 The People not only distort the facts of Hardee’s case, but they leave out crucial findings from the cases they cite in support of their position. For example, in People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996) (RB 17-18), the court found Perhaps recognizing the importance of furtive movements to this analysis, the People6 claim that Hardee’s two glances into the backseat “are analogous to cases where vehicle occupants were seen attempting to hide or conceal something,” because both movements indicate that occupants “are preoccupied with an item located inside the vehicle at the time of the stop,” suggesting the presence of a weapon (RB 17-18). Not only was Hardee not “preoccupied” with the bag, as argued above, but the People cannot cite to any caselaw to support such a proposition. 9 that the police had reasonable suspicion sufficient to stop a white Jeep with temporary license plates, and that the subsequent search of the Jeep was proper “under the totality of the circumstances,” including: defendant’s jittery conduct, his repeated refusal to comply with the officer’s direction to keep his hands on the roof of the car, his statements that he had friends in the Seventh Precinct and that he had only pointed his belt buckle at the informant, thereby corroborating that an incident had occurred, and his intoxicated or drugged appearance. Id. at 210. On first glance, these circumstances may appear similar to Hardee’s case. However, the People leave out the most critical fact that in Vehap, the police pulled the Jeep over in the first place because they received a radio call that someone had shot a gun out of a white Jeep with temporary plates, and that this matching Jeep was driving in the same direction the citizen informant described. Id. No such indication of criminal activity was present in Hardee’s case, so the police search was unreasonable. Similarly, the People are correct that this Court upheld a car search in People v. Anderson, 17 A.D.3d 166 (1st Dept. 2005), because “‘officers observed the vehicle make an illegal U-turn in the face of an obvious police presence.’” (RB 16). However, the People conveniently fail to mention that the police also saw the passenger turn and bend towards the driver, fiddle with the center console, and slam the console shut. Id. at 167. Hardee exhibited no such behavior, but this is precisely the furtive movement that the People attempt to ignore when 10 considering whether the Torres exception applies. In sum, Hardee’s behavior in this case was equivocal at worst, but it certainly did not give rise to a substantial likelihood that there was a weapon in the car that posed an actual ans specific threat, as required by law. Consequently, the search of his car was unlawful, and the hearing court erred in denying Hardee’s suppression motion. Therefore, this Court should suppress the evidence derived from the officers’ unlawful search of the car, vacate Hardee’s plea, and dismiss the indictment. CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT SHOULD SUPPRESS THE GUN, VACATE APPELLANT’S PLEA, AND DISMISS THE INDICTMENT. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant-Appellant Rachel T. Goldberg Of Counsel January 15, 2015 11 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Word Perfect 6, using a 14-point Garamond font in the text and headings, and 12-point Garamond font in the footnotes. The word count is 2,983, excluding the Table of Contents and Table of Authorities. A-1