The People, Respondent, v Stanley Hardee, Appellant.

Brief

N.Y.October 11, 2017

Oral 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. 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 Phone: (212) 577-2523 ext. 529 Fax: (212) 577-2523 RACHEL T. GOLDBERG rgoldberg@cfal.org Of Counsel May 18, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I THERE IS NO RECORD SUPPORT FOR A FINDING THAT A WEAPON LOCATED WITHIN APPELLANT’S VEHICLE PRESENTED AN ACTUAL AND SPECIFIC DANGER TO THE OFFICERS’ SAFETY. (Replying to Respondent’s Point A and portions of Respondent’s Point B).. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT II PEOPLE V. TORRES REQUIRES REASONABLE SUSPICION OF CRIMINALITY FOR A PROTECTIVE SEARCH OF A VEHICLE, AND THERE IS NO SUPPORT FOR SUCH A FINDING ON THIS RECORD. (Replying to Respondent’s Point B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 i TABLE OF AUTHORITIES FEDERAL CASES United States v. Burton, 228 F.3d 524 (4th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . 13 Dewey v. City of Des Moines, 173 U.S. 193 (1899). . . . . . . . . . . . . . . . . . . . . . . . 15 Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y. 2013). . . . . . . . . . . . . . 14 Gomez v. United States, 597 A.2d 884 (D.C. 1991). . . . . . . . . . . . . . . . . . . . . 13, 15 United States v. Gray, 213 F.3d 998 (8th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 13 STATE CASES Matter of Darryl C., 98 A.D.3d 69 (1st Dept. 2012). . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Carvey, 89 N.Y.2d 707 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Cheek, 18 A.D.3d 475 (2d Dept. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. De Bour, 40 N.Y.2d 210 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Fludd, 20 A.D.3d 352 (1st Dept. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Garrett, 23 N.Y.3d 878 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Hawkins, 45 A.D.3d 989 (3d Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Holland, 18 N.Y.3d 840 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. March, 257 A.D.2d 631 (2d Dept. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Moore, 6 N.Y.3d 496 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Morales, 65 N.Y.2d 997 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ii People v. Mundo, 99 N.Y.2d 55 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011). . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992). . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Sanders, 26 N.Y.3d 773 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Torres,74 N.Y.2d 224 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996).. . . . . . . . . . . . . . . . . . . . . . . 5, 7 NEW YORK STATE STATUTES C.P.L. § 149.50.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iii 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 Appellant submits this brief in reply to respondent’s brief (hereinafter RB), received by appellant on April 28, 2016. More particularly, appellant replies to respondent’s assertions that the record demonstrates that police acted reasonably when they searched appellant’s car (Point I); and that reasonable suspicion is not required for a car search pursuant to People v. Torres,74 N.Y.2d 224 (1989) (Point II). 1 REPLY ARGUMENT POINT I THERE IS NO RECORD SUPPORT FOR A FINDING THAT A WEAPON LOCATED WITHIN APPELLANT’S VEHICLE PRESENTED AN ACTUAL AND SPECIFIC DANGER TO THE OFFICERS’ SAFETY. (Replying to Respondent’s Point A and portions of Respondent’s Point B) Because there is no record support for the Appellate Division’s finding that the search of appellant Stanley Hardee’s car was legal, the People advance several arguments on procedural and precedential grounds in an effort to uphold the unlawful search. None of those arguments has merit. To begin, this case presents a pure issue of law properly within this Court’s jurisdiction. Whether the record supports a finding of legal police intrusion is a question of law. See, e.g., People v. Sanders, 26 N.Y.3d 773 (2016) (reviewing whether record supported finding that police had probable cause to search defendant’s clothes at the hospital). Plainly, and as the People concede, this Court has the power to determine whether the undisputed facts satisfy the requirements for a car search as laid out in People v. Carvey, 89 N.Y.2d 707, 710-11 (1997), People v. Mundo, 99 N.Y.2d 55, 59 (2002), and People v. Torres, 74 N.Y.2d 224 (1989). As argued in Hardee’s initial brief (hereinafter “AB”), there is no record support for such a finding here. Nonetheless, in an effort to foreclose review of the Appellate Division’s 2 legal determination, the People claim that the Appellate Division’s majority and dissent disagree over the facts of this case; namely, whether Hardee was looking specifically at the maroon bag on the floor of the backseat of his car. Contrary to the People’s claims, the majority and dissent do not disagree on this or any other factual issue. In fact, neither the dissent nor the majority found that Hardee was looking directly at the bag on the floor, as the People claim, but instead found that Hardee was looking into the backseat area more generally (A3-8).1 The People also posit that Appellant’s description of Hardee’s behavior as “nervous” requires factual inferences, rendering the issue before this Court a mixed question (RB 17, 21). However, it was Officer Siani who consistently and repeatedly testified that Hardee appeared “nervous,” rather than dangerous (A79, A80, A83, A86, A106). Thus, despite the People’s strained efforts to inject a factual dispute or to claim a need to draw inferences, this case does not present the Court with a mixed question of law and fact. After lodging meritless jurisdictional arguments, the People incorrectly 1 As the majority in the Appellate Division recited the undisputed facts, Hardee looked to the backseat area, and Loud ultimately recovered a gun in that area: Loud “testified that defendant’s demeanor, persistent movements inside the vehicle, repeated looking into the back seat, and refusal to follow directives, led him to believe that there was a weapon inside the car;” the court went on to say that Loud believed there might be a gun “in the bag he had observed on the floor behind the passenger seat in the area where defendant kept glancing” (A4-5) (emphasis added). Thus, the Appellate Division correctly summarized the testimony, finding that the officers saw Hardee looking into the backseat area, and that Loud noted a bag in the backseat. The Appellate Division never found that Hardee himself was looking at the bag on the floor; as the dissenting justice noted, and as the majority’s recitation of the facts bears out, there “was no testimony that defendant looked in the specific direction of the bag or even the floor” (A7). 3 argue that Appellant is asking this Court to change the current state of the law to suit the facts of this case. For instance, the People claim that Hardee asks this Court to do away with the totality of the circumstances test for police encounters (RB 24-25). In fact, Hardee repeatedly acknowledges that courts must consider the totality of the circumstances when evaluating the legality of police intrusion (AB 4, 14, 23). Upon that examination, however, this Court must find no record support for the Appellate Division’s finding that the police search was legal. The People are also wrong that Hardee asks this Court to “alter the test that has been applied in evaluating the propriety of protective car searches” by “burdening it with additional requirements;” namely, the specific facts that the defendant must appear to hide something in the car and demonstrate a willingness to use a weapon (RB 13, 14, 23-26). The People miss the larger point. Mundo and Carvey make clear that police may not search a legally stopped car once the occupants have been removed and frisked without incident unless they can point to specific facts that can be concretely tied to a weapon that poses an actual and specific danger. As the People do not contest, Mundo and Carvey provide examples: furtive behavior in the form of stashing or secreting something within the car, plus a willingness to commit immediate violence (AB 16-18).2 There was 2 The cases the People cite to bolster their arguments actually support Hardee’s position (RB 13-14, RB 18, RB 28). In nearly every case the People cited in which the Appellate Division found the Torres exception applied, police observed the defendant both stash something in his car and engage in other dangerous behavior. See People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011) (car refused to pull over despite repeated comments and cut police car off while avoiding them; police saw occupants twice appear to secret something in the center console); People v. 4 no objective evidence here of either. Implicitly conceding that furtive behavior has been required for a reasonable police search under Torres, the People claim that Hardee looking to the back of his car is “analogous to cases where vehicle occupants were seen attempting to hide or conceal something,” positing that “a vehicle occupant’s preoccupation with a particular location inside the vehicle at the time of a stop provides a strong indication that he is seeking to conceal potentially dangerous contraband” (RB 19, 26).3 Unsurprisingly, the People cite no case law to support such a proposition, because the two actions are not equivalent. It is reasonable to infer a gun’s presence when a vehicle’s occupant is seen actively hiding an object Hawkins, 45 A.D.3d 989 (3d Dept. 2007) (defendant was a drug sale suspect and was seen secreting something on the passenger side floor); People v. Fludd, 20 A.D.3d 352 (1st Dept. 2005) (police on narcotics patrol saw defendant driving recklessly; driver had no license; occupants refused to show their hands to police and defendant appeared to hide something under a pile of laundry); People v. Cheek, 18 A.D.3d 475 (2d Dept. 2005) (passenger was a suspected gun dealer and police observed him making “furtive movements” under the front passenger seat); People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992) (police had reasonable suspicion of a crime and information that defendant was armed and dangerous, defendant made “suspicious movements,” and the driver was still in the car at the time of the police search). The only two cases cited by the People in which the defendant did not hide something in the car far exceed the minimal requisite suspicion for a car search under Torres, Carvey, and Mundo. In People v. March, 257 A.D.2d 631 (2d Dept. 1999), police responded to a call about the occupants banging suspiciously on the door of a house; one of the officers had just arrested the passenger for armed robbery a month earlier, and the officers found handcuffs when they frisked the driver. In People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996), police received a call about shots fired from a car matching the description of defendant’s vehicle, the defendant admitted that he knew the informant who had called about the shots fired, and the defendant refused to keep his hands on the roof of the car. Thus, by standing in stark contrast to the case at bar, all of the cases cited by the People actually elucidate why there is no record support for the Appellate Division’s finding in Hardee’s case. 3 The behavior the People characterize as “preoccupation” constituted looking to the backseat two to four times (RB 19). 5 during a traffic stop. Further, if a person hides that object in his center console or under his seat, it means the object is small, consistent with a weapon. Because he has been riding in a car with an exposed weapon before secreting it, he has evinced a willingness use that potential weapon. Because he was able to stash it quickly upon seeing police approach, he could easily and quickly retrieve it from its hiding place to potentially use it against the officers. None of these factors attended Hardee’s allegedly equivalent behavior: looking around to the backseat of the car two to four times. Even if it were true that looking in the backseat may indicate a person’s concern with its contents, there is no reason to believe that it harbors a weapon, as required by the Torres exception, as opposed to drugs or an open container of alcohol. That explains why, as Carvey and Mundo elucidate, something more must accompany the furtive behavior: conduct indicating an actual and immediate danger to officers. To meet this particular legal threshold, the People claim that Hardee engaged in other “suspicious behavior” throughout the encounter (RB 17-20). Yet these behaviors, even when taken together, do not add up to a “substantial likelihood” that there was a weapon that posed an “actual and specific” danger to the officers as required by law. For instance, while it is true that Hardee was driving 50-60 miles per hour in a 30 mile-per-hour zone, he was doing so on a four-lane arterial road—with no evidence that pedestrians or motorists were even 6 present, let alone put in any danger—and he pulled over when requested (A74-75, A79, A95, A97, A134-35, 159). In short, this was an unremarkable traffic stop encounter. Indeed, Siani specifically testified that he did not believe Hardee was trying to evade police (A99-100; RB 18). Moreover, while it is also 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 (A108-09). 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 (A108-09). Siani himself used the word “compliant” to describe Hardee once he got out of the car, including when he was frisked and when the police asked him to step to the back of the car, which he did voluntarily (A 109-10).4 Thus, prior to the search, Hardee exhibited no behavior evincing a willingness to engage in immediate violence, as required. To claim further record support for the Appellate Division’s finding, the People ask this Court to consider what Hardee did after—or at best contemporaneous with—the illegal search when determining whether the circumstances justified the search. Like the Appellate Division, the People rely on Loud and Siani’s testimony about what happened after the illegal search to justify 4 The People’s reliance on People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996) is inapposite (RB 18). The People leave out the critical fact that in Vehap, the police pulled the car 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 car was driving in the same direction the citizen informant described. Id. No such dangerous gunplay was present in Hardee’s case. 7 that very intrusion (RB 20-21).5 Specifically, the Appellate Division cited to Siani’s testimony that he was concerned that Hardee might “fight or flee” and that Hardee began to resist when handcuffed (A4). This behavior “outside of the vehicle” led to the Appellate Division’s finding that the police search was lawful (A6). The People repeat this claim (RB 20, 23). However, 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). Moreover, Siani testified that he eventually became concerned that Hardee might run away or fight, but did not become concerned about this until Hardee was already at the back of the car, by which time Loud had already begun his illegal search (A84, A112-115). Rather than prematurely searching his car, if the police had any vague, lingering concerns after removing and frisking Hardee without finding any weapons, the officers should have taken the less intrusive step of having him move even further away, as this Court suggested in Torres, 74 N.Y.2d 230 (“Any 5 In doing so, the People repeat the Appellate Division’s application of the improper legal standard. As noted in Hardee’s initial brief, a reviewing court must focus on whether police action was justified at its inception, and not on subsequently acquired information. See People v. Moore, 6 N.Y.3d 496, 498 (2006) (“Defendant’s later conduct cannot validate an encounter that was not justified at its inception.”); People v. De Bour, 40 N.Y.2d 210, 222 (1976) (“In evaluating the police action we must consider whether or not it was justified in its inception”) (see AB 20). That the Appellate Division used the wrong legal standard in relying on facts about what took place after the illegal search had already started, in violation of the principle articulated in De Bour and its progeny, provides yet another pure issue of law giving this Court jurisdiction to review appellant’s case. See People v. Morales, 65 N.Y.2d 997, 998 (1995) (application of an erroneous legal standard presents question of law for Court of Appeals review). 8 residual fear that the detectives might have had about the suspects’ ability to break away and retrieve the bag could have been eliminated by taking the far less intrusive step of asking the suspects to move away from the vicinity of the car.”). To be sure, if at that point Hardee had started to resist arrest or fight with police, then a search of the car would have been justified. But the police here were required to wait until there was more than a mere theoretical possibility that there was a gun in the car that Hardee might retrieve and use against the officers. In sum, despite the People’s claims, no procedural or precedential bar prevents this Court from finding, like the dissent below, that there is no record evidence that would lead a reasonable person to conclude that a weapon located in Hardee’s car presented an actual and specific danger to the officers’ safety. Hardee did not seek to evade apprehension, he did not secret anything in his car when he saw police approach, and he did not evince a willingness to engage in immediate violence. None of the other circumstances relied on by the prosecutor—neither widened eyes, animated glances into the backseat and at the passenger and police, nor his delay in emerging from his vehicle (ultimately voluntarily)—could justify the police search. Therefore, this Court should suppress the illegally obtained evidence, vacate Hardee’s plea, and dismiss the indictment. 9 POINT II PEOPLE V. TORRES REQUIRES REASONABLE SUSPICION OF CRIMINALITY FOR A PROTECTIVE SEARCH OF A VEHICLE, AND THERE IS NO SUPPORT FOR SUCH A FINDING ON THIS RECORD. (Replying to Respondent’s Point B) The People invite this Court to ignore decades of settled case law and jettison the test laid out in People v. Torres, 74 N.Y.2d 224 (1989), examining when police may search the interior of a lawfully stopped car after its occupants have been removed and frisked without incident. Specifically, the People argue that this Court should overrule Torres’s analytical framework and do away with the requirement that police must have both (1) reasonable suspicion of criminality and (2) a reasonable belief that a weapon in the car posed an actual and specific danger to their safety. Id. at 226. The two-part Torres test is dictated by precedent, analytically sound, and prudently balances the privacy rights of New Yorkers against the dangerous realities of police work. Therefore, this Court should decline the People’s invitation and instead reassert the rule laid out in Torres, under which the search of Hardee’s car was illegal. As all parties agreed below, the framework outlined in Torres governed the police search of Hardee’s car (A15-17, A25, A27-28 A43-44, Appellant’s Appellate Division Brief at 14-15, Respondent’s Appellate Division Brief at 18-19). Even before this Court, the People acknowledge that the Torres test governs the 10 analysis (RB 13, 24, 26). Nonetheless, the People posit that Torres does not require reasonable suspicion and that, in any case, as per People v. Mundo, 99 N.Y.2d 55, 59 (2002) and People v. Carvey, 89 N.Y.2d 707, 710-11 (1997), the reasonable suspicion prong of the Torres test no longer survives (R27-30). Both arguments are wrong. This Court should reject out of hand the People’s claim that Torres does not require reasonable suspicion for a vehicle search (RB 31-32). Torres begins with the premise that a police officer “acting on [1] reasonable suspicion that criminal activity is afoot and on [2] an articulable basis to fear for his safety may intrude upon the person or personal effects” only within the confines of C.P.L. § 149.50(1). Torres, 74 N.Y.2d at 226. Of course, C.P.L. § 149.50(1), New York’s stop and frisk statute, requires reasonable suspicion of criminality before a search. The second sentence asks whether “such an intrusion”—that is, a search of the car under C.P.L. § 149.50(1)— may be occasioned solely on a theoretical threat of harm; Torres held that it could not. The final, decretal paragraph of Torres repeats the mandate that police “limit their intrusion [of a vehicle] to the inquiry permitted by C.P.L. § 149.50.” Torres 74 N.Y.2d at 231; see Mundo, 99 N.Y.2d at 60-61 (Ciparick, J., dissenting) (explicitly 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). Therefore, Torres plainly requires reasonable suspicion that a crime has been committed before police may search a car, once the 11 occupants have been removed and frisked without incident. Given the above, the People attempt to bifurcate Carvey and Mundo from Torres, and claim that Hardee “is thus proposing an entirely new legal standard . . . seeking to have this Court add an additional factor to the Carvey/Mundo test based on language found in Torres” (RB 28) (emphasis in original). This argument, too, fails scrutiny. Both Carvey and Mundo cite Torres as the controlling case, and extensively discuss how those holdings follow from Torres. Carvey, 89 N.Y.2d at 710-711 (explaining how facts fall under rule established in Torres); Mundo, 99 N.Y.2d 58-59 (same). Moreover, as discussed in Hardee’s initial brief, both cases follow Torres’s mandate and uphold the car searches only because, once police stopped the cars for traffic infractions, unfolding events provided police with reasonable suspicion of criminality and a belief that there was a substantial likelihood that a weapon posed an actual and specific danger (AB 27-28). Because this Court did not overrule Torres in Mundo or Carvey, the reasonable suspicion requirement pertains in the traffic stop context. The People also critique the reasonable suspicion requirement as both a radical departure from current law and yet also redundant (RB 29-33). Neither argument has merit. As the People concede, lower courts have been applying the Torres/Carvey/Mundo rule for decades, and in the cases cited by the People, police had reasonable suspicion of a crime even where the court did not explicitly 12 find that element (RB 27-28; see supra n. 2). Moreover, far from the radical departure the People claim, the requirement of reasonable suspicion of a crime before a protective search is not unique to the Torres context. In assessing the propriety of frisks during street encounters, for example, De Bour requires both a reasonable suspicion of criminality and a reasonable fear for police safety to justify a search. De Bour, 40 N.Y.2d at 215-16; see e.g., Matter of Darryl C., 98 A.D.3d 69 (1st Dept. 2012) (without reasonable suspicion of a crime, officer could not frisk individual based only on a perceived threat to his safety). In the street encounter context, the Fourth Circuit, Eighth Circuit, and D.C. Circuit also all require a reasonable suspicion of criminal activity as a necessary prerequisite to frisk for safety, even where police may have legitimate safety concerns. See United States v. Burton, 228 F.3d 524, 527 (4th Cir. 2000) (noting that in the absence of reasonable suspicion, police officer may not frisk only because he fears for his safety); United States v. Gray, 213 F.3d 998, 1000 (8th Cir. 2000) (requiring reasonable suspicion of criminal activity required for a pat-down); Gomez v. United States, 597 A.2d 884, 890-91 (D.C. 1991) (reasoning that “legitimate safety concerns” cannot justify a frisk without independent suspicion of criminal activity). As in the street encounter scenario, the reasonable suspicion requirement laid out in Torres is not only required, but is a vital safeguard to ensure that legitimate concerns for officer safety do not erode constitutional privacy 13 protections. After all, for the Torres exception to apply, occupants of the vehicle must have already been ordered out of the car and frisked, so any immediate danger has been dissipated. 74 N.Y.2d at 230. Yet doing away with the reasonable suspicion requirement would subject motorists to serious privacy intrusions any time the police want to conduct a fishing expedition.6 Without the reasonable suspicion requirement, police who have merely a hunch there is a weapon could detain drivers stopped for a traffic infraction, hoping for more concrete signs of a weapon to emerge as the encounter continued. That is exactly what happened here. Hardee was speeding and changing lanes without signaling, but was not doing anything out of the ordinary or particularly dangerous. Nonetheless, police escalated a routine traffic stop into a major encounter. They ordered Hardee out of his car and prolonged the encounter long enough to gather enough facts for an officer to justify—in his mind, and unpersuasively in this case—an intrusive search. As in the street encounter context, and as this Court implicitly found in Torres by implementing a 6 On August 12, 2013, a federal court found New York City liable for systematically and routinely stopping individuals despite no reasonable suspicion to believe criminal activity was afoot, and for regularly frisking individuals despite no reasonable belief that those individuals were armed and presently dangerous, and for doing so in a racially discriminatory way. See Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y. 2013). Upholding the two-step Torres rule during traffic stops would ensure that privacy rights of motorists are well protected from this type of unlawful police intrusion. As former Chief Judge Lippman urged in his dissent in People v. Holland, 18 N.Y.3d 840, 845 (2011) (Lippman, Ch. J., dissenting), “analytic shortcuts” erode privacy interests during police encounters: “When courts with the factual jurisdiction . . . employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court’s proper function to resolve.” 14 two-step test, the reasonable suspicion requirement protects individual privacy without unnecessarily increasing danger to police officers in the field. The People also posit that this Court should abolish the reasonable suspicion requirement because in some instances it could be “redundant” (RB 29- 30). While it may be true, as in Carvey, that some of the same facts giving rise to the suspicion that the driver has an illegal, loaded gun in the car may also lead to the substantial likelihood that the gun posed an actual and specific danger to police (see AB 27-28), that is no reason to erode a critical safeguard protecting New Yorkers from illegal police conduct. After all, “[n]o matter how appealing the cart may be, the horse must precede it.” Gomez v. United States, 597 A.2d at 890-91. Finally, the People argue that the preservation rule set forth in People v. Garrett, 23 N.Y.3d 878 (2014), does not apply here because Carvey and Mundo represent a new rule, rather than an elaboration of Torres (RB 28). As noted above, Carvey and Mundo explicate and rely on the Torres rule. In any case, to the extent that Hardee more prominently foregrounds Torres’s first prong, a change in emphasis does not render an argument unpreserved. See De Bour, 40 N.Y.2d at 215 (“The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve.”); accord Dewey v. City of Des Moines, 173 U.S. 193, 197-98 (1899) (“If the question were only an enlargement of the one mentioned in the assignment of errors, or if were so connected with it 15 in substance as to form but another ground or reason for alleging the invalidity of the personal judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued.”). Because Torres has consistently been cited by all parties as the leading case governing the legality of the police intrusion here, the claim that the courts below failed to address Torres’s reasonable suspicion requirement is preserved. In sum, the record does not support a finding that police had (1) reasonable suspicion that criminal activity was afoot and (2) an articulable basis to fear for their safety, as required by Torres, Mundo, and Carvey. Undisputed facts demonstrate that Hardee was pulled over for speeding and changing lanes without signaling, and unfolding events did not provide either reasonable suspicion of criminality or a reasonable belief that Hardee would gain control of a weapon and use it against the officers. Therefore, this Court should suppress the evidence obtained as a result of the officers’ unconstitutional search of Hardee’s car, vacate Hardee’s plea, and dismiss the indictment. At the very least, this Court should remand the case to the Appellate Division for factual review under the proper legal standard. CONCLUSION For the reasons advanced in appellant’s initial brief as well as those above, this Court should suppress the illegally obtained evidence, reverse Hardee’s plea, and dismiss the indictment. In the alternative, this case should be remanded to the 16 Appellate Division for factual review. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation ___________________________ Rachel T. Goldberg Of Counsel May 18, 2016 17