The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY September 28, 2015 John P. Asiello Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Stanley Hardee N.Y. Co. Indictment No. 5558/10 APL-2015-00170 Dear Mr. Asiello: Pursuant to section 500.11 of this Court’s Rules of Practice, I submit this letter in response to defendant’s September 2, 2015, letter for summary treatment (“SSM”) in the above-captioned case.1 By permission of the Honorable Rolando T. Acosta of the Appellate Division, First Department, defendant appeals from a March 26, 2015, order of that court upholding defendant’s January 22, 2013, conviction of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]). People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015). The question presented for this court is whether the record supports the lower courts’ ruling that, after the police removed the occupants of defendant’s vehicle during a lawful traffic stop, the totality of the circumstances entitled them to conduct a limited search for weapons behind the vehicle’s front passenger seat. Because the record evidence supported the Appellate Division’s decision, it is beyond the review of this Court. In any event, even if this question were properly before this Court, it should affirm the Appellate Division’s ruling. 1 Pursuant to Rule 500.11(d), enclosed is an affidavit of service of one copy of this letter on opposing counsel. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 2 September 28, 2015 FACTS AND PROCEDURAL HISTORY The People’s Case2 At approximately 1:30 in the morning of July 31, 2010, Sergeant CHRISTOPHER SIANI, Officer STEPHEN LOUD, and Officer Kieran Kailer were driving southbound in an unmarked police vehicle on Lexington Avenue in the 25th Precinct with Officer Kailer behind the wheel (A. 73-74, 94, 133-34, 159).3 The head of the patrol bureau had assigned the officers to that area due to a spike in violent crimes (A. 134). 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” (A. 74-75, 79, 95, 97, 134-35, 159). The car was traveling at approximately 50 to 60 miles per hour, even though the speed limit was 30 miles per hour (A. 75, 95, 97-98, 135). Instead of turning, Officer Kailer continued driving southbound on Lexington Avenue to follow the sedan (A. 75-76, 135, 159). It took the officers six or seven blocks to catch up with the sedan (A. 76, 97). The driver of the sedan was 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 (A. 76, 98, 135-36). With lights and sirens on, the officers pulled over the sedan to the right side of Lexington Avenue at 117th Street (A. 76-77, 99-100, 136, 159). Officer Kailer and Sergeant Siani approached the sedan on the driver’s side while Officer Loud went to the passenger side (A. 76, 78, 101-102, 137, 159). Defendant was in the driver’s seat and Alice Simmons was seated in the front passenger’s seat (A. 78-79, 137, 160). 2 This letter only includes those facts necessary to assess the reasonableness of the limited protective search under People v. Torres, 74 N.Y.2d 224 (1989), and People v. Carvey, 89 N.Y.2d 707, 709-711 (1997). Defendant’s fiancé, Alice Simmons, also testified for the defense during the suppression hearing, but the trial court found her testimony wholly incredible and defendant has never contested that finding on appeal (see Letter at 14). 3 Parenthetical references preceded by “A” refer to pages in appellant’s appendix. Officer Loud was subsequently promoted to Sergeant (A. 131). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 3 September 28, 2015 Defendant was “very nervous” (A. 79). Officer Kailer asked defendant why he was driving so quickly (A. 79-80, 138). Defendant was “wide-eyed” and continually looked around the car (A. 79, 105-106). Defendant glanced at the back of the vehicle approximately two to four times (A. 81). Defendant would look at Officer Kailer, Sergeant Siani, Simmons, and then look behind him into the back seat (A. 79-81). Defendant was looking around so much that “his head was, like, spinning around” (A. 81). Officer Kailer had to tell him repeatedly to “calm down,” “sit still,” and “concentrate” because defendant was “pretty animated” (A. 79-81). Officer Kailer specifically told defendant to stop moving approximately three to four times (A. 81). Officer Kailer asked defendant if anything was in two Styrofoam cups located in the center console (A. 80, 105, 107, 138). 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” (A. 80, 106-107). Officer Kailer told him, “If it’s just a little bit of alcohol, it’s not a big deal, but stop looking around” (A. 80). Sergeant Siani did not think that defendant was “drunk,” but instead thought that he “might be high or something” because “he was so hyper” (A. 106). 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 (A. 138). Defendant turned away from Officer Kailer and looked in the back seat behind the front passenger seat (A. 139). 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” (A. 81-82, 108). Officer Kailer told him, “Listen, you have to step out of the car” (A. 82, 108, 139). After Officer Kailer repeated himself twice, Officer Loud became “concerned” and bent down again to look inside the vehicle (A. 139). While Officer Kailer was speaking to him, defendant turned over his right shoulder again and looked behind the front passenger seat (A. 139-40). Officer Loud then saw that defendant was looking at a maroon shopping bag behind the front passenger seat (A. 140, 142, 175). Officer Kailer asked defendant to step out of the car approximately three times before he complied (A. 82, 108-109, 139-40, 161). Once defendant exited the vehicle, Officer Kailer promptly frisked him (A. 83, 109, 140, 163). This signaled to Officer Loud that Officer Kailer was concerned about weapons (A. 141). Defendant was compliant during the frisk, but he was still nervous (A. 83). Officer Kailer and Sergeant Siani continued to reassure him and told him to relax (A. 83, 109, 176). 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 (A. 83, 110, 140, D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 4 September 28, 2015 163). Officer Loud asked Simmons to step out of the car and sit on the back bumper next to defendant (A. 141, 164-65). Defendant leaned on the back bumper of the vehicle, approximately three feet from the vehicle’s backseat (A. 110, 163, 175). He looked over his left shoulder into the car at least two times (A. 84-85, 113). After looking at Sergeant Siani and then looking over his right shoulder down Lexington Avenue, defendant began staring at the corner of 116th Street. (A. 84-85, 113-114). Sergeant Siani thought “that was going to be the path he was going to run at” (A. 84- 85, 113-114). 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” (A. 142). Officer Loud saw defendant “moving around” outside the car and was worried that “in his reachable area there could be a weapon” (A. 142). Specifically, Officer Loud believed there “would be a weapon” in the bag defendant had been “looking at” in the back seat (A. 142). With both defendant and Simmons 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 to search behind it (A. 141-43, 170). Officer Loud spotted the maroon shopping bag directly behind the passenger seat, so he grabbed it by a handle and tugged it (A. 142, 144, 170). Officer Loud felt something heavy in the bag and believed it was a weapon or firearm (A. 143-44). Officer Loud then looked inside the bag and saw another smaller black bag (A. 144, 171). The handle of a semiautomatic firearm was sticking halfway out of that bag (A. 144, 158). Officer Loud then gave the bag another tug to make sure the weight corresponded with the weight of a real firearm (A. 145). 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” (A. 84-85, 141). Sergeant Siani thought “something is wrong” and that “we got to get this guy cuffed because something is up” (A. 85-86, 112). Finally, Officer Kailer told defendant, “If you look back again, I’m going to handcuff you” (A. 85, 111). Almost immediately, defendant looked right back into the car (A. 85). While Officer Loud was still inside the sedan, Sergeant Siani and Officer Kailer began to handcuff defendant but he resisted (A. 86, 114-115). At that point, Officer Loud placed the gun back down in the sedan, stuck his head out of the car, and yelled D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 5 September 28, 2015 either “gun” or the officers’ code for gun, “lunch” (A. 86, 90, 117, 123-24, 145-46, 171). Officer Loud then ran over to assist the officers in handcuffing defendant (A. 86-87, 117, 145-47, 171-72). When the officers recovered the firearm and processed it, they discovered that it was loaded (A. 148-49, 158). The Suppression Court Decision On November 1, 2011, the Honorable Charles Solomon issued a written decision denying suppression of the firearm and other physical evidence obtained as a result of the stop (A. 33-46).4 The court credited the testimony of the police officers and it made findings of fact entirely consistent with the evidence provided by the People, including the fact that “it appeared to [Officer] Loud that defendant had been looking” at the maroon shopping bag on the floor of the backseat behind the front passenger seat (A. 36, 38, 42). Thus, the court found that “[d]efendant’s actions prior to being pulled over, as well as after, gave the police reasonable cause to believe that there was a weapon in the car which presented a threat to their safety” (A. 44). 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” (A. 45). 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 (A. 45).5 The Appellate Division Decision The majority of the reviewing panel of the Appellate Division, First Department affirmed Justice Solomon’s decision on March 26, 2015. People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015). The court found that defendant’s 4 The court also granted defendant’s motion to suppress certain post-arrest statements he made in the absence of Miranda warnings (A. 46). 5 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” (A. 63). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 6 September 28, 2015 suspicious behavior during the lawful traffic stop justified the officer’s limited search of the area directly behind the front passenger seat of the car. Id. at 628 (citing People v. Mundo, 99 N.Y.2d 55, 59 [2002]; People v. Carvey, 89 N.Y.2d 707, 709-711 [1997]). The court made factual findings consistent with the People’s evidence, including the fact that defendant “continued to look over his shoulder toward the area directly behind the front passenger seat, where a shopping bag in which a gun was later found was located,” and that Loud believed a weapon might be in the bag because it was “in the area where defendant kept glancing.” Id. at 627. The court determined that “defendant’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.” Id. Justice Acosta dissented, finding that there were no “objective indicators that could lead to a reasonable conclusion that there was a substantial likelihood that a weapon was located in defendant’s car.” Id. at 628-29. Specifically, Justice Acosta stated that “[t]here was no testimony that defendant looked in the specific direction of the bag or even the floor” and thus, he believed that “there was nothing that could be analogized to movements within a car to reach or conceal something, which could reasonably have been taken to indicate the presence of a concealed weapon.” Id. at 628. Upon defendant’s application, Justice Acosta granted defendant leave to appeal to this Court on June 18, 2015. ARGUMENT THE RECORD SUPPORTS THE LOWER COURTS’ RULINGS THAT THE LIMITED SEARCH FOR WEAPONS BEHIND THE FRONT PASSENGER SEAT OF THE VEHICLE WAS REASONABLE, PUTTING THAT RULING BEYOND THIS COURT’S REVIEW; IN ANY EVENT, THE TOTALITY OF THE CIRCUMSTANCES JUSTIFIED THE SEARCH. In this case, the trial court analyzed the facts and circumstances surrounding this rapidly escalating car stop and determined that the limited search behind the front passenger seat of the vehicle was reasonable due to defendant’s nervousness, persistent refusal to follow the officers’ directions, and suspicious movements inside and outside the vehicle. The trial court credited Officer Loud’s testimony that he D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 7 September 28, 2015 believed a weapon was present in the vehicle due to defendant’s repeated glances at a shopping bag behind the front passenger seat. The Appellate Division agreed and made factual findings consistent with the trial court and the People’s evidence. However, Justice Acosta dissented on factual grounds because he did not believe there was any testimony that defendant looked in the specific direction of the shopping bag. Justice Acosta granted defendant leave to appeal to this Court. For the first time ever, defendant contends that, to justify a protective vehicle search under Torres and Carvey, the officers must have also possessed “reasonable suspicion” that defendant committed a crime. Not only is this new legal argument entirely unpreserved, it obfuscates this Court’s holding in Torres by confusing the legal standard for searches of individuals and the separate standard for protective searches of vehicles for weapons. Defendant also asserts that the totality of the circumstances was insufficient to justify the limited search of the maroon shopping bag behind the front passenger seat. However, this claim presents a mixed question of law and fact that is beyond this Court’s review because there is ample record support for both the trial court and the Appellate Division’s determination. Indeed, defendant persists in raising factual issues before this court by not discussing the fact that he looked directly at the shopping bag when he looked into the back seat. In any event, Officer Loud was entirely justified in conducting a limited search of the shopping bag due to defendant’s suspicious behavior and this Court should affirm. A. Defendant mischaracterizes the relevant and applicable legal standard. In People v. Torres, 74 N.Y.2d 224 (1989), this Court began its opinion by restating the long-standing principle that, before an officer may conduct a protective search of a person or his personal effects, the officer must possess both “reasonable suspicion” that criminal activity is afoot and an “articulable basis to fear for his own safety.” 74 N.Y.2d at 227; see Mundo, 99 N.Y.2d at 58; Carvey, 89 N.Y.2d at 710. Regarding the state constitutional standard for searching a car once a defendant has been removed and frisked without incident, this Court declined to apply the federal standard, articulated by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032 (1983), that such a search could be justified solely on any “theoretical” threat that harm could occur after the investigation is complete. Instead, this Court held that New York’s constitution required that, absent probable cause, such searches were unlawful. Torres, 74 N.Y.2d at 226; Mundo, 99 N.Y.2d at 58; Carvey, 89 N.Y.2d at 710. However, this Court also delineated an exception to this requirement of probable cause by stating that “there may well be circumstances where, following a lawful stop, facts revealed during…the course of the encounter lead to the conclusion D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 8 September 28, 2015 that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion.” Torres, 74 N.Y.2d at 231 n.4; see Mundo, 99 N.Y.2d at 58; Carvey, 89 N.Y.2d at 710-11. Later, in Carvey and Mundo, this Court clarified that this exception required a showing that there was a “substantial likelihood” of a weapon in the car and an “actual and specific” danger to the officers’ safety. Mundo, 99 N.Y.2d at 58-59; Carvey, 89 N.Y.2d at 711; see also Mundo, 99 N.Y.2d at 62 (dissent). As defendant acknowledges in Point I of his SSM letter to this Court, the issue presented upon defendant’s appeal is whether the People’s hearing evidence met the standard for this exception. As will be discussed further in this responsive letter, however, that question is not one of law, but a mixed question of law and fact. And because the record supports the lower courts’ determinations that the search was justified under the Torres exception, this Court has no jurisdiction to review that mixed question further. In Point II of his SSM letter, however, defendant suggests for the first time ever that Torres held that “police may not search a car when the driver merely committed a traffic infraction” (Letter at 15). Defendant insists that this Court has required that before conducting a protective search for a weapon, the police must have “reasonable suspicion to believe a crime has been committed” (id.). Defendant’s novel interpretation of the Torres ruling was never argued before the hearing court below and is entirely unpreserved for this Court’s review. CPL § 470.05; People v. Gray, 86 N.Y.2d 10, 19-22 (1995). In any event, there is no merit to defendant’s contentions on this score as they are based on nothing more than an improper conflation of the Torres rule (Torres, 74 N.Y.2d at 226-231) with its exception (Torres, 74 N.Y.2d at 231 n.4), and misapplies Judge Ciparick’s discussion of that rule (Mundo, 99 N.Y.2d at 60-61 [dissent]) and its exception (Mundo, 99 N.Y.2d at 61-62 [dissent]) in her dissenting opinion in Mundo. Instead, the Torres Court determined that, absent probable cause, an officer may not search a car once the occupants have been removed and frisked without incident. Torres, 74 N.Y.2d at 226; Mundo, 99 N.Y.2d at 58; Carvey, 89 N.Y.2d at 710. However, as recognized by Judge Ciparick herself in her Mundo dissent, the Torres Court “also laid the groundwork for the exception to the rule” when it “note[d] that where ‘facts revealed during…the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety’ the police may take further steps to protect themselves.” Mundo, 99 N.Y.2d at 61 (dissent), quoting Torres, 74 N.Y.2d at 231 n.4. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 9 September 28, 2015 In short, the Torres Court delineated a separate and distinct test for protective searches of vehicles. 74 N.Y.2d at 231 n.4; Carvey, 89 N.Y.2d at 711. The applicable test focuses not on the officers possessing reasonable suspicion that any crime has been committed, but on the likelihood of a weapon being present in a lawfully stopped car. Thus, defendant’s argument that the officers must have also possessed reasonable suspicion that defendant committed a crime is misguided and entirely meritless. The only legal standard applicable to the protective search at issue here is whether there was a “substantial likelihood” of a weapon in the car and an “actual and specific” danger to the officers’ safety. Torres, 74 N.Y.2d at 234 n.4; see Mundo, 99 N.Y.2d at 58-59; Carvey, 89 N.Y.2d at 710-11. None of the Departments have had any difficulty applying this straightforward legal standard to numerous factual scenarios. See, e.g., People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011), aff’d, 18 N.Y.3d 825 (2011); People v. Hackett, 47 A.D.3d 1122, 1224 (3d Dept. 2008); People v. Fludd, 20 A.D.3d 351, 353 (1st Dept. 2005), lv. denied, 5 N.Y.3d 852 (2005); People v. March, 257 A.D.2d 631 (2d Dept. 1999), lv. denied, 93 N.Y.21d 973 (1999); People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996), lv. denied, 90 N.Y.2d 865 (1997); People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992), lv denied, 80 N.Y.2d 836 (1992). And defendant’s suggestion that the First Department in People v. Newman, 96 A.D.3d 34 (1st Dept. 2012), “created a law” requiring “(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)” is incorrect (Letter at 13). To the contrary, the First Department in Newman recognized merely that such factors are often sufficient to trigger the Torres exception, but not strictly necessary. Instead, the First Department acknowledged that the hearing court must examine the legality of a search in light of the totality of the circumstances. 96 A.D.3d at 42. In any event, the Newman decision is not before this Court. This case presents no confusion by either the hearing court or the intermediary appellate court regarding the applicable law, and defendant’s arguments to the contrary are wholly without merit. B. The Appellate Division’s decision is beyond this Court’s review. Instead of presenting any true questions of law concerning the appropriate legal standard, defendant’s appeal presents a mixed question of law and fact that is beyond this Court’s review. Indeed, in this case, even the dissenting Justice below agreed on the general legal standard to apply: “objective indicators that could lead to a reasonable conclusion that there was a substantial likelihood that a weapon was D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 10 September 28, 2015 located in defendant’s car.” 126 A.D.3d at 628 (dissent). The dissenting Justice simply disagreed about what facts had been adduced at the hearing. Specifically, Justice Acosta believed that “[t]here was no testimony that defendant looked in the specific direction of the bag or even the floor.” Id. at 628 (dissent). And defendant adopts this same factual interpretation in his letter to this Court by repeatedly characterizing defendant as merely “looking to the back seat” or “look[ing] around his car” (Leave Letter at 1, 5, 7, 11, 12). The Appellate Division majority, on the other hand, found that the evidence showed that while defendant was still in the car, he “repeatedly looked in the back seat” and that, once removed from the car, defendant “continued to look over his shoulder toward the area directly behind the front passenger seat, where a shopping bag in which a gun was later found was located.” 126 A.D.3d at 627. Justice Acosta and defendant’s alternative interpretation of the facts is not for this Court’s review. As this Court recently recognized, whether the police reasonably concluded that a weapon was likely located in defendant’s vehicle, posing an actual and specific danger to the safety of the officers, presents a mixed question of law and fact. Omowale, 18 N.Y.3d at 827. This Court lacks jurisdiction to review such mixed questions, which require the weighing of the nature and quality of the particular circumstances at hand, unless there is absolutely no record support for the lower court’s determination. Id.; People v. Wheeler, 2 N.Y.3d 370 (2004); see also People v. Guay, 18 N.Y.3d 16, 22 (2011) (“Although the Appellate Division possesses the power to exercise its own discretion and substitute its judgment for that of the trial court, this Court lacks that authority”); N.Y. CONST. Art. VI § 3; CPL § 470.35. Even if “different conclusions may not have been unreasonable,” the Court of Appeals is limited to determining whether the record evidence supported the lower courts’ determination. People v. Williams, 17 N.Y.3d 834, 836 (2011); see also People v. Brown, 25 N.Y.3d 973, 976 (2015) (even if “the views of individual Judges” might differ “on the merits of” defendant’s suppression motion, that would be “beside the point because the Criminal Procedure Law simply does not vest [the Court of Appeals] with jurisdiction to entertain [such] appeals”). Here, the evidence at the hearing provided ample record support for the lower courts’ determinations. As the Appellate Division summarized, the record showed that defendant had a nervous demeanor, “repeatedly looked in the back seat and at his front seat passenger,” ignored the officers’ orders to stop moving around, and did not step out of the car until the request was repeated two or three times. 126 A.D.3d at D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 11 September 28, 2015 627. The Appellate Division credited Officer Loud’s testimony that he saw a bag on the floor behind the passenger seat, “in the area where defendant kept glancing.” Id. Indeed, Officer Loud had testified, “It appeared to me he was looking at [the maroon shopping] bag” (A. 140, 142, 175-76). The Appellate Division also recognized that once defendant was outside the car, he twice looked over his shoulder into the back of the car and continued to disregard the officers’ orders. 126 A.D.3d at 627. Thus, the facts clearly supported the Appellate Division’s ultimate conclusion that defendant’s behavior “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.” Id. at 628. There being ample record support for the Appellate Division’s rule, this Court has no jurisdiction to review it on the merits, and disposal without full briefing is appropriate. C. Even if this Court reaches the merits of defendant’s claim, it should affirm the Appellate Division’s determination that it was reasonable for the officers to perform a limited search of the vehicle. Even if this case were reviewable by this Court, the hearing court and the Appellate Division correctly applied Torres’ holding to this specific factual scenario and evaluated the totality of the circumstances to determine that it was reasonable to conclude that a weapon posing an actual and specific danger was likely present in the car. 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 (A. 74-75, 79, 95, 97, 134-35, 159). 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.” (A. 79- 81, 105-106, 134). Defendant repeatedly disregarded Officer Kailer’s instructions to “calm down,” “sit still,” and “concentrate” (A. 79-81). He even told defendant to stop moving three to four times (A. 79-81, 139-140). Such circumstances often contribute to a finding that police officers were justified in performing a protective vehicle search. See, e.g., Mundo, 99 N.Y.2d at 59 (holding based in part on the vehicle’s dangerous driving and the fact that the occupants “twice disobey[ed] the officers’ lawful commands”); People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996) (holding based in part on defendant’s nervous conduct, repeated refusal to comply with officer orders, and drugged appearance). 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 D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 12 September 28, 2015 passenger seat. Officer Siani saw defendant look behind the front passenger seat two to four times, and Officer Loud leaned down and saw him look twice (A. 81, 175-76). Indeed, Officer Loud discovered that when defendant looked behind the front passenger seat, he was looking at a maroon shopping bag (A. 139-40, 142, 175). Defendant’s repeated glances at the shopping bag are analogous to cases where vehicle occupants were seen attempting to hide or conceal something. See Mundo, 99 N.Y.2d at 59; Carvey, 89 N.Y.2d at 712; Fludd, 20 A.D.3d at 353; Omowale, 83 A.D.3d at 617. Such movements, by their very nature, demonstrate that a 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 that posed a danger to the officers. Compounding this suggestion was the fact that defendant looked at the bag after Officer Kailer directed him to stop looking around and get out of the car (79-82, 84-85, 108-109, 111, 113-14, 139-141, 161). When the officers sought to remove defendant from the car, the dangerous implications of his suspicious behavior continued to escalate. Defendant refused to step out of the car, even though Officer Kailer instructed him to do so twice (A. 81- 82, 108, 139-40). Once outside the car, he continued looking around despite Officer Kailer’s continual instructions to “stop looking back” and “stop moving” (A. 82, 84- 85, 108-109, 113-14, 139-41, 161). He looked over his right shoulder down Lexington Avenue, possibly to plan an escape route, and at least twice, he turned and looked over his left shoulder back into the car (A. 84-85, 113-14). Sergeant Siani thought, “we got to get this guy cuffed because something is up” and “[h]e’s not listening to us” (A. 85). He believed that “something [wa]s wrong” and that defendant “was hiding something” (A. 86, 112). 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 (A. 142). 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 limited protective search behind the front passenger seat (A. 142). Based on these facts, the lower courts correctly applied Torres’ holding to the “totality of the circumstances” and determined that it was reasonable to conclude that there was a substantial likelihood that a weapon posing an actual and specific danger was present in the car. Defendant’s assertions to the contrary are based on factual inferences that are not fully supported by the record. For example, defendant claims that he voluntarily D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 13 September 28, 2015 exited the car after Officer Kailer assured him that the alcohol in the cups was “not a big deal” (Letter at 4, 11). In reality, Officer Kailer had not yet asked defendant to exit the car when he first told defendant that the alcohol was not a problem (A. 80-82). Indeed, Officer Kailer still had to ask defendant to get out of the car three times, and defendant only did so after looking at the maroon shopping bag behind the front passenger seat (A. 140, 142, 175). Defendant also suggests that he was nervous due to the presence of alcohol in the sedan (Letter at 12), but as discussed in our Appellate Division brief (Brief at 23), “innocent explanations for behavior do not prevent police officers from acting on their well-founded suspicions.” Omowale, 83 A.D.3d at 618. Defendant also repeats his Appellate Division argument that the facts of this case are analogous to People v. Garcia, 20 N.Y.3d 317, 324 (2012), where this Court found that the officers did not possess the common law right to inquire when a vehicle’s occupants merely “appeared nervous” (Leave Letter at 11). It bears repeating that, to the extent that the legal standard for a common law inquiry may even be analogized to a limited protective search of a vehicle, 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 also argues that there was “no indication of the concealment of a weapon” and nothing indicating defendant’s “willingness to commit an immediate, violent act” (Letter at 10). To the contrary, defendant’s repeated glances at a maroon shopping bag in the back seat, even after Officer Kailer told him to stop looking back and get out of the car, certainly indicated that a weapon could be present. And defendant clearly appeared willing to commit an immediate, violent act outside the car when he was three feet from the vehicle’s backseat, disregarding Officer Kailer’s orders, planning an escape route by staring down Lexington Avenue, and twice looking over his left shoulder into the back of the car. Indeed, contrary to defendant’s characterizations of his testimony, Officer Siani believed that “something was coming” and that defendant was “hiding something” (A. 112, 116). He was afraid defendant “was going to run or fight” (A. 125). Based on the totality of the circumstances, Officer Loud reasonably concluded that a weapon was present in the shopping bag behind the front passenger seat. Once defendant was unsecured and “moving around” three feet away from the back seat, in defiance of the officers’ lawful orders, this weapon presented an actual and specific danger. This court should affirm the lower courts’ determinations. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 14 September 28, 2015 * * * In sum, the Appellate Division’s decision affirming the suppression court’s denial of defendant’s motion to suppress the firearm is supported by the record, and is thus beyond this Court’s review. In any event, the police lawfully conducted a limited protective search behind the front passenger seat of defendant’s vehicle. CONCLUSION For the reasons stated above, the order of the Appellate Division should be affirmed. Respectfully, Jessica Olive Assistant District Attorney 212-335-9369 cc: Rachel T. Goldberg Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 (212) 577-2323 ext. 529 rgoldberg@cfal.org