The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017RACHEL T. GOLDBERG APPELLATE COUNSEL rgoldberg@cfal.org (212) 577-2523 ext. 529 ATTORNEY-IN-CHARGE ROBERT S. DEAN ASSISTANT ATTORNEY-IN-CHARGE MARK W. ZENO SENIOR SUPERVISING ATTORNEYS ABIGAIL EVERETT CLAUDIA S. TRUPP BARBARA ZOLOT MANAGING ATTORNEY DAVID J. KLEM CENTER FOR APPELLATE LITIGATION 120 WALL STREET – 28 FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535TH September 2, 2015 VIA EXPRESS MAIL Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Re: People v. Stanley Hardee APL-2015-00170 Your Honors: Pursuant to this Court’s letter dated July 21, 2015, designating this appeal for examination of the merits pursuant to Rule 500.11 (“SSM” review), appellant Stanley Hardee submits the following written comments and arguments in support of his position, and respectfully requests that this Court grant full briefing and argument. As directed, one original and two copies of this letter and three copies each of appellant’s Appendix and appellant’s and respondent’s briefs in the Appellate Division are enclosed. This cases raises the issue of whether the police can conduct a protective search of a vehicle stopped for traffic infraction after the occupants have been removed and frisked without incident, merely where the defendant looked around his car nervously and initially refused to get out of the vehicle. In People v. Carvey, 89 N.Y.2d 707 (1997), this Court upheld a protective search of a car based on the officers’ observation of the defendant wearing a bulletproof vest. That vest established that “the likelihood of a weapon in the car [was] substantial and the danger to the officer’s safety ‘actual and specific.’” Id. at 711 (quoting People v. Torres, 74 N.Y.2d 224, 231 n.4 (1989)). The issue here is whether looking around one’s car nervously and initially refusing to get out of the vehicle but ultimately complying meets that well-established standard. A majority of the Appellate Division said yes; appellant, joined by a dissenting member of the appellate court, maintains the search was not lawful given the established facts. Appellant contends that the Appellate Division has essentially overruled the requirement that, absent probable cause, an officer must have an “articulable basis to fear for his own safety,” Torres, 74 N.Y.2d at 226, and would allow searches on far less than what this Court has required under our protective State Constitution. This case also presents a second, related issue: whether there still exists the second Torres requirement that, to conduct a protective search, the police must also have a “reasonable suspicion” that a crime has been committed. Id. at 226. Here, appellant Stanley Hardee was pulled over for a traffic infraction, but there was never any allegation that a crime had been committed before the police searched his car. In upholding the legality of the search despite no suggestion of any criminal activity—including reasonable suspicion that Hardee had an illegal gun—at the time of the search, the Appellate Division has written out the first prong of the Torres exception. This Court has not directly examined the relevancy of this part of the Torres rule since it was first articulated 26 years ago, and, given the appellate court’s decision, this case presents the opportunity for this Court to address that requirement. This letter will first set forth the factual background for both claims and then will address the merits of each claim in turn. The discussion of the merits will explain why this Court has jurisdiction to review each of the claims, why this Court should terminate SSM review and schedule a full briefing, and why (in the absence of full briefing) this Court’s precedent requires appellant’s conviction be reversed. PRELIMINARY STATEMENT By permission of Hon. Rolando T. Acosta, Justice of the Appellate Division, First Department, entered June 18, 2015 (A2), appellant appeals from March 26, 2015,1 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 Numbers preceded by “A” refer to pages in appellant’s Appendix.1 2 years’ to life imprisonment (Charles Solomon, J., at suppression hearing; Michael J. Obus, J., at plea and sentence). 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, A135). The police turned on 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 innocuously as Siani and Kailer approached the car on the driver’s side, and Loud approached the passenger side (A76- 77, A99-100; A137). Hardee was driving, and his companion, Alice Simmons, was sitting in the front 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 answered that “there was a little bit of vodka in the cup,” 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, stated that Hardee appeared 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). A few times during their conversation, Kailer asked Hardee to stop moving his head around, but Hardee turned to look in the back seat approximately twice (A81, A175-76). Siani never testified that he felt Hardee was preoccupied with anything or 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). During this time, Loud’s primary attention was on passenger Simmons (A161). Kailer asked Hardee to step out of the car, and initially Hardee refused, shaking his head (A18-19). Loud, who, was on the passenger side of the car talking to Simmons and could not see Hardee, became “concerned” when Hardee did not immediately get 3 out of the car, so he crouched down to get a better look inside (A138-40, A160-61). Kailer asked Hardee to step out of the car a total of two or three times, but once he told Hardee that “the alcohol is not a big deal,” Hardee got out of the car on his own (A82, A108, A139). Hardee’s initial 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). The police had no intention of arresting Hardee at this point (A126). Kailer then frisked Hardee without incident, and 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). Loud asked Simmons to get out of the car as well, which she did (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 because Hardee had been looking over his right shoulder; he “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). Loud brought his head out of the car to give his fellow officers the signal that he had found a gun, when he 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 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). 4 When Loud emerged from the car and saw his fellow officers trying to cuff Hardee, he went to help and told them about the gun (A145).2 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,” 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 Carvey, 89 N.Y.2d at 711 and Torres, 74 N.Y.2d 224, counsel noted that a warrantless search like Loud’s is permitted only where “‘the likelihood of a 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 acknowledged that Torres and Carvey controlled (A27- 28). 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 found the officers’ search of the vehicle legal 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). At the time Loud searched the car, Hardee was standing at the rear of the car with Kailer2 and Siani. The police had not yet attempted to handcuff Hardee and there had not yet 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 gone into the car but instead would have tried to assist his fellow officers (A165-66, A170). 5 The Court’s Mapp Decision On November 1, 2011, the court issued a written decision denying suppression of the gun (A45). The court found that after the lawful stop, police had the right to conduct a limited search of the interior of the car after Hardee and Simmons were removed from the car (A44-45). Relying on People v. Mundo, 99 N.Y.2d 55, 59 (2002); People v. Omowale, 83 A.D.3d 614, 616 (1st Dept. 2011); and Fludd, 20 A.D.3d 351, 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).3 Arguments Before the Appellate Division & Appellate Division’s Decision On appeal, Hardee maintained that the protective search of the vehicle was unlawful under 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 that trigger the Torres exception, the police have observed two behaviors 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, 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 Hardee retained the right to appeal the court’s suppression decision (A266-67, A269).3 6 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 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 the 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 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. One Justice 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. 7 ARGUMENT POINT I THERE IS NO BASIS IN THE RECORD TO FIND REASONABLE CAUSE TO BELIEVE THAT 1) THERE WAS A SUBSTANTIAL LIKELIHOOD THAT ANY WEAPON WAS PRESENT OR 2) THAT IT POSED AN ACTUAL AND SPECIFIC DANGER; TO FIND OTHERWISE WOULD REINSTATE THE FEDERAL STANDARD FOR PROTECTIVE CAR SEARCHES THAT WAS EXPLICITLY REJECTED IN TORRES AND CARVEY. A. The First Department’s decision upholding the search should be reversed because it conflicts with clear controlling precedent. A police officer is not permitted to search a vehicle merely because that vehicle was pulled over for a traffic infraction. Under our State Constitution, when occupants4 of a car stopped in New York are removed and frisked without recovering a weapon, the police, absent limited circumstances, may not conduct a search of the car. People v. Mundo, 99 N.Y.2d 55, 58 (2002); People v. Carvey, 89 N.Y.2d 707, 710 (1997) (“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’s safety has consequently been eliminated.”). There is a limited exception to this general rule: where police have concrete reason to believe there is a weapon in the car that presents a real danger to the officers. As this Court has explained, “there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered 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 officer’s safety sufficient to justify a further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon.” Torres, 74 N.Y.2d at 231 n.4. Hardee does not dispute that the car he was driving was lawfully stopped and the4 occupants lawfully removed. See People v. Robinson, 74 N.Y.2d 773 (1989); People v. Ingle, 36 N.Y.2d 413 (1975). 8 In Torres, this Court explicitly rejected the United States Supreme Court’s more lenient “reasonable belief” standard articulated in Michigan v. Long, 463 U.S. 1032, 1049 (1983) (upholding search so long as “the police officer possesses a reasonable belief on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons”) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Torres expressly rejected “the suggestion that the substantial intrusion involved in even a limited entry into and search of a suspect’s vehicle could be justified purely on the theoretical basis, adopted in Michigan v. Long.” Torres, 74 N.Y.2d at 231 n. 4. The “far-fetched scenario,” discussed in Long was the fear that suspects, once having been stopped and questioned without incident, would reach for a concealed weapon and threaten the departing police officers’ safety. Id. (citing Michigan v. Long, 463 U.S. at 1052). This Court flatly rejected this standard as being inconsistent “with the privacy rights guaranteed by our State Constitution. N.Y. Const., art. I, § 12.” Id. at 227. This Court did not define what situation, short of probable cause, could permit a further intrusion into the vehicle, but it suggested that the bar would be a difficult one for officers to meet in the usual car-stop scenario. Id. at 230-31, n.4. That standard was not even met in Torres, where the police had information that a homicide suspect was carrying a gun in his specifically-described shoulder bag in the car. 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 this Court found the police search illegal. Id. at 227. In the 26 years since Torres, this Court has only twice identified circumstances that met the strict demands of the Torres exception. 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 hiding something under the seat from police, along with the bulletproof vest, which “suggests more than the presence of a deadly weapon—it demonstrates its owner’s readiness and willingness to use a deadly weapon,” warranted 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 illegal turn, but the car fled. 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 9 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 eliminate the Torres exception. In both Carvey and Mundo, the defendants appeared to hide something in the car once they realized officers were behind 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 most significantly, 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 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 exception, but something less would not. Id. (quoting People v. Batista, 88 N.Y.2d 650, 655 (1996)). The discovery of bullets, for example, would permit a Carvey search, the Court found, but even the discovery of a gun holster or a practice target would probably not satisfy that standard. Id. at 711-12. In Mundo, this Court recognized that the standard must be flexible enough to accommodate other kinds of behavior indicating a present willingness to commit acts of violence, where police also had reasonable belief to suspect a weapon. The driver in Mundo 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 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 no indication of the concealment of a weapon, nothing associated with the presence of a weapon, and no indication that the occupants are willing to commit immediate 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 10 bulletproof vest or nearly running somebody over, that would suggest the occupants would commit imminent violence. 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, and initially refusing but ultimately complying with the request to step out of his car once he was assured that the alcohol was “no big deal”—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, hazardous, or suspicious, 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). Indeed, if, as in Torres, not even an anonymous tip explaining that a suspect wanted on homicide charges had a gun in his car, is sufficient for a protective search, then certainly briefly glancing around one’s car and looking “wide- eyed” during a stressful encounter cannot rise to that level. As noted above, there was also 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 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.5 The First Department went into great length about Hardee’s struggle with police at the5 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, Loud began searching the car before or simultaneously with Hardee’s resistance to being handcuffed, and, 11 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, and instead provided nothing more than an insufficient hunch. This is particularly so where Hardee6 had admitted to having alcohol in the car, and his nervousness could logically have been attributed to that admission. The Appellate Division’s attempt to justify the search by calling Hardee’s movements “furtive” results in a bankrupt analysis that threatens the constitutional rights of the driving public, disserves this State’s expressed commitment to its citizens’ privacy interests, and is contrary to public policy. The uncontested facts demonstrate that Hardee turned his head to look inside his own car two times even after police asked him not to. That not qualify as “furtive” (i.e. secretive) behavior, comparable to stashing something under a seat upon seeing the police. In sum, Hardee’s behavior did not give 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. While the circumstances in Mundo and Carvey indicated 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, 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. B. Alternatively, this Court should consider full briefing because the First Department’s decision has effectively reinstituted the federal test rejected in Torres. If this Court opts not to reverse appellant’s conviction based on the authority of Torres, Carvey and Mundo, then it should entertain full briefing. See Rule 500.11(I). The issue of whether a protective search can be undertaken even without a specific and concrete indication of the presence of a weapon or a defendant’s willingness to use it is 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). Both Siani and Loud testified that Hardee only looked to the back of the car twice (A81,6 A175-76). Given that Hardee also looked at the officers and towards his passenger several times (A81), he clearly was not preoccupied with the back seat. 12 of overriding or statewide importance. As discussed above, up until now this Court has only twice described facts that would permit a protective search of a vehicle stopped pursuant to a traffic infraction. In both of those cases, the defendants evinced a willingness to do immediate violence and engaged in furtive—not merely nervous or even odd—behavior. Neither element was present here. As the First Department has noted, two commonalities trigger the narrow Torres exception: “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 (citing to People v. Ashley, 45 A.D.3d 987 (3d Dept. 2007); People v. Jones, 39 A.D.3d 1169 (4th Dept. 2007); People v. Hutchinson, 22 A.D.3d 681 (2d Dept. 2005); People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003); People v. Worthy, 261 A.D.2d 277 (1st Dept.1999)). Lower courts, too, apparently believe that New York case law requires a furtive movement plus an additional factor. See, e.g., People v. Griffin, 984 N.Y.S.2d 633 (Richmond Co. Crim. Ct. 2013) (“New York has . . . , through its case law, adopted what appears to be a ‘furtive movement plus one’ rule concerning the permissibility of searches incident to car stops.”). The First Department has now created a law that will sow confusion among lower courts and other Departments. More troublingly, the Appellate Division has effectively overruled this Court’s longstanding Torres rule and has instead reverted back to Michigan v. Long’s “theoretical possibility” of danger that Torres rejected. To allow police to conduct a protective search based only on nervousness, odd behavior, and an initial reluctance to emerge from the car would subject scores of motorists—many or all of whom are likely to be nervous during a traffic stop—to serious privacy intrusions any time the police want to conduct a fishing expedition. To the extent that this constitutional issue is likely to arise again and affects the interests of citizens statewide, it should be reviewed on full briefing rather than the summary processes available under Rule 500.11. C. This Court has jurisdiction to review the claim because the issue presented is a pure question of law that was fully preserved. Although many search and seizure issues present mixed questions of law and fact that preclude review in this Court, the Court of Appeals has jurisdiction to review the specific issue in this case. The issue presents an issue of law because it involves the minimum standard by which the right to search a car is established once a defendant has 13 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 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 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. Notably, the prosecution has never contested that this claim was preserved. Because the legal claim was fully preserved, the Court has jurisdiction to review it. 14 POINT II THE LOWER COURT 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 DESPITE THE FACT THAT APPELLANT MERELY COMMITTED A TRAFFIC INFRACTION. In addition to the issue above, this case presents another novel and important issue: whether, under People v. Torres —which allows police to conduct a protective search of a car only where the officers 1) have reasonable suspicion to believe a crime has been committed and 2) have an articulable basis to fear for their own safety— police may not search a car when the driver merely committed a traffic infraction, thereby failing to meet prong one of Torres. In Torres, on which all parties and lower courts relied in arguing the instant case, 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; see Mundo, 99 N.Y.2d at 60- 61 (Ciparick, J., dissenting) (characterizing the Torres exception as a two-part test). In Hardee’s case, as in most jurisprudence examining the so-called Torres exception to the probable cause requirement, much of the litigation centered around the second prong of the test. However, in upholding the legality of the search of Hardee’s car despite no allegation of any criminal activity at the time of the search, the First Department has written out the first prong of the Torres exception. Should its ruling stand, police will be able to search a driver’s car even without reasonable suspicion that any crime has been committed, in contravention of Torres’s mandate. In Torres, the police had reasonable suspicion to believe that the defendant had committed a homicide because he matched the description of the suspect, thereby meeting the first prong of the two-part test. Torres,74 N.Y.2d at 226. While not specifically litigated or articulated in the cases, the facts in Carvey and Mundo make it clear that police had reasonable suspicion to believe criminal activity was afoot in those cases as well. In Mundo, the car fled from police and almost hit a pedestrian while doing so, in violation of Penal Law § 270.25. Mundo, 99 N.Y.2d at 57. In Carvey, the same behavior that gave rise to the reasonable belief that the defendant had a gun and that he would use it supplied reasonable suspicion to believe the defendant had committed a crime: the defendant appeared to stash something under the seat and was wearing a 15 bulletproof vest. This allowed the police to reasonably surmise that the defendant had a loaded gun in the car, in violation of Penal Law § 265.03. See Carvey, 89 N.Y.2d at 712. Here, by contrast, there was never any allegation that Hardee had committed any crime at the time of the police search. He had been pulled over for 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 at the time Hardee 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). Even if this Court agrees with the Appellate Division that prong two of Torres was met—that there was “substantial” likelihood that a weapon was present and that the weapon posed “actual and specific” danger to the officers—there was no reasonable suspicion that having that weapon was an independent crime, or that any other crime had been committed. Unlike in Carvey, where the suspected weapon was clearly a loaded gun which on its own constitutes a crime, here there was no suggestion that the police believed there was a loaded gun in the car, or any other weapon whose mere possession would have been a crime. There was simply no evidence of any crime.7 Unsurprisingly, then, the First Department failed to find this prong of Torres satisfied, but did not reverse the lower court’s decision. Instead, it wrote out this requirement, finding that Hardee had lawfully been pulled over for a traffic infraction, and that the police came to a “reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area,” interpreting Torres by excising the first requirement police must reasonably suspect criminal activity. This Court should reassert the importance of Torres’s first requirement, suppress the gun as the product of an illegal search, and reverse Hardee’s conviction. 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, police may search a car after the occupants have been removed and frisked Siani testified that once Hardee started to resist the officers he could have been arrested for7 the crime of obstructing governmental administration, but Loud had already begun the search of the car at that point, so Hardee’s resistance could not have provided the requisite reasonable suspicion of a crime (A125-26). 16 without incident, when they have an articulable basis to fear for their own safety but have no reason to suspect that a crime—as opposed to a traffic infraction—has been committed. Whether prong one of the Torres exception has any meaning is an issue of statewide importance and Constitutional magnitude. 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 incorrect interpretation of a legal standard presents a reviewable issue of law. See People v. Borges, 68 N.Y.2d 1031 (1987); 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. Beyond presenting a pure issue of law, the issue was preserved in the hearing court. After the 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 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 hearing 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 trial court explicitly considered whether the Torres exception 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. CONCLUSION In sum, the Appellate Division’s decision below marks a broad departure from this Court’s precedent on when police may perform a protective search after a car stop. Therefore, this Court should either reverse that court’s ruling and dismiss the indictment on the basis of clear and controlling precedent, see Rule 500.11(b)(2), or terminate the alternative review procedure and direct that the appeal proceed to full briefing and argument, see Rule 500.11(I). 17 Sincerely, Rachel T. Goldberg Appellate Counsel (212) 577-2523 ext. 529 18 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STANLEY HARDEE, : Defendant-Appellant. : -----------------------------------------------------------------------X STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) RACHEL T. GOLDBERG, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That on September 2, 2015, the within Rule 500.11 letter was served upon Hon. Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, New York 10013, the address designated by him for that purpose, by depositing a true copy of the same in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Dated: New York, New York September 2, 2015 ___________________________ Rachel T. Goldberg