The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017To be argued by RACHEL T. GOLDBERG New York Supreme Court Appellate Division -- First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - New York County Ind. No. 5558/10 STANLEY HARDEE, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place, 11th Floor New York, NY 10006 rgoldberg@cfal.org Phone: (212) 577-2523 ext. 529 Fax: (212) 577-2523 RACHEL T. GOLDBERG Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Testimony at the Mapp Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Post-Hearing Submissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Court’s Mapp Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Motion to Reargue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Plea and Sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT THE POLICE CONDUCTED AN UNCONSTITUTIONAL SEARCH OF APPELLANT’S CAR WHEN—AFTER APPELLANT AND HIS COMPANION HAD BEEN REMOVED, FRISKED, AND SECURED WITHOUT INCIDENT—AN OFFICER SEARCHED THE BACK SEAT WITHOUT REASONABLE CAUSE TO BELIEVE 1) THERE WAS A SUBSTANTIAL LIKELIHOOD THAT ANY WEAPON WAS PRESENT OR 2) THAT IT POSED AN ACTUAL AND SPECIFIC DANGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 STATEMENT PURSUANT TO RULE 5531. . . . . . . . . . . . . . . . . . . . . . . . . . . 1-A PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . 2-A i TABLE OF AUTHORITIES Federal Cases Michigan v. Long, 463 U.S. 1032 (1983). ................................................................... 12 Terry v. Ohio, 392 U.S. 1 (1968). ................................................................................ 12 State Cases People v. Ashley, 45 A.D.3d 987 (3d Dept. 2007). ................................................... 13 People v. Carvey, 89 N.Y.2d 707 (1997). ............................................................ passim People v. Feldman, 114 A.D.3d 603 (1st Dept. 2014). ............................................ 14 People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005)............................................. 7, 8, 15 People v. Garcia, 20 N.Y.3d 317(2012); .................................................................... 17 People v. Hackett, 47 A.D.3d 1122 (3d Dept. 2008)............................................ 8, 16 People v. Hutchinson, 22 A.D.3d 681 (2d Dept. 2005). .......................................... 13 People v. Ingle, 36 N.Y.2d 413 (1975). ...................................................................... 11 People v. Jones, 39 A.D.3d 1169 (4th Dept. 2007). ................................................. 13 People v. Leach, 114 A.D.3d 518 (1st Dept. 2014). ................................................. 13 People v. May, 52 A.D.3d 147 (1st Dept. 2008). ...................................................... 18 People v. Mundo, 99 N.Y.2d 55 (2002). .................................................... 7, 11, 14, 15 People v. Newman, 96 A.D.3d 34 (1st Dept. 2012). .................................... 12, 13, 16 People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011). ......................................... 7, 15 People v. Robinson, 74 N.Y.2d 773 (1989). .............................................................. 11 ii People v. Shabazz, 301 A.D.2d 412 (1st Dept. 2003). ............................................. 13 People v. Torres, 74 N.Y.2d 224 (1989)....................................................... 6, 7, 11, 12 People v. Worthy, 261 A.D.2d 277 (1st Dept.1999)................................................. 13 Federal Statutes U.S. Const., Amend. IV............................................................................................ 2, 10 U.S. Const., Amend. XIV......................................................................................... 2, 10 State Statutes C.P.L.R § 221(d). .............................................................................................................. 8 N.Y. Const., Art. I, § 12. .................................................................................... 2, 10, 12 Penal Law § 265.03(3). ..................................................................................................... 1 iii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STANLEY HARDEE, : Defendant-Appellant. : ------------------------------------------------------------------------x PRELIMINARY STATEMENT This is an appeal from a judgment of the Supreme Court, New York County, rendered January 22, 2013, convicting appellant, upon a plea of guilty, of one count of criminal possession of a weapon in the second degree (Penal Law § 265.03(3)), and sentencing him as a persistent violent felony offender to an indeterminate term of 16 years’ to life imprisonment (Charles Solomon, J., at hearing; Michael J. Obus, J., at plea and sentence). Timely notice of appeal was filed, and on May 14, 2013, this Court granted appellant leave to appeal as a poor person on the original record and typewritten briefs and assigned Robert S. Dean, Center for Appellate Litigation, as counsel. No application for a stay of execution of judgment has been made. Appellant had no co-defendants below, and is currently incarcerated pursuant to the judgment. 1 QUESTION PRESENTED Whether police conducted an unconstitutional search of appellant’s car when—after appellant and his companion had been removed, frisked, and secured without incident—an officer searched the back seat without reason to believe 1) there was a substantial likelihood that a weapon was present or 2) that any weapon posed an actual and specific danger. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I, § 12. STATEMENT OF FACTS Testimony at the Mapp Hearing On July 31, 2010 at about 1:22am, 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 around 50 miles per hour in the 30 miles per hour zone (Siani 10-11; Loud 67-69). The police turned on their1 lights and sirens to stop the car, which pulled over to the right side of Lexington Avenue near 117th Street (Siani 13, 36-36; Loud 71-73). Siani and Kailer approached the car on the driver’s side, and Loud approached the passenger side (Siani 13; Loud 74). Appellant Stanley Hardee was driving, and his companion, Alice Simmons, Unless otherwise indicated, citations refer to pages of the hearing , preceded by the1 witness’s last name. Citations to the plea proceedings are preceded by “P”, and sentencing proceeding are preceded by “S”. 2 was sitting in the front seat (Siani 15-16). There were Styrofoam cups with lids in2 the front console (Loud 106; Defense Exhibit A). Kailer commented on Hardee’s speed, and asked what was in the cups (Siani 16-17). 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” (Siani 17; Loud 75). Siani felt that Hardee appeared “nervous” because he was “wide-eyed, he was looking around the car” (Siani 16, 18). He was not moving “like he was putting something away,” but instead was moving as though “he was nervous” (Siani 18, 23, 43). Two or three times during their conversation, Kailer asked Hardee to stop moving his head around, but Hardee turned to look in the back seat two to four times (Siani 18). 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” (Siani 43, 65). During this time, Loud’s primary attention was on passenger Simmons (Loud 98). Kailer asked Hardee to step out of the car, and initially Hardee refused, shaking his head (Siani18-19). Loud became “concerned” when Hardee initially did not get out of the car, so he crouched down to get a better look inside the car (Loud 76-77). Kailer asked Hardee to step out of the car a total of two or three Simmons testified for the defense, but the lower court did not find her testimony2 credible. See Court’s Decision and Order (“Decision”), dated November 2, 2011, at 10. Her testimony is not relevant to the arguments made herein. 3 times, but once he told Hardee that “the alcohol is not a big deal,” Hardee got out of the car on his own (Siani 19, 45; Loud 76). The police had no intention of arresting Hardee at this point (Siani 63). Kailer then frisked Hardee without incident, and Hardee was “compliant” but “still nervous” (Siani 20, 46). Sinai or Kailer told Hardee to relax and step back to the rear bumper of the car, which he did (Siani 20-21, 47). Asking occupants to lean on the rear bumper is a “tactic” police use so as to “not allow them to do any quick motions that can harm” police (Loud 100). Loud asked Simmons to get out of the car as well, which she did (Loud 78). 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 (Loud 101, 113). Once Simmons was out of the car, Loud went back to the passenger side of the car, climbed in the open front door, crouched on his knees in the front seat, and searched the back seat with his flashlight (Loud 79, 104). Loud searched the car at this point 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 . . . I saw the defendant moving around. I thought in his reachable area there could be a weapon” (Loud 79). Loud searched in both the front passenger area and in the back seat because 4 Hardee had been looking over his right shoulder (Loud 79, 104). Loud saw a medium sized maroon shopping bag on the floor behind the passenger seat (Loud 79, 104). He believed that the 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 (Loud 79-80, 95). 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 (Loud 82, 109). 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 that Hardee was considering fleeing from or “fight[ing]” with the police (Siani 21-23, 50, 62). Leaving Simmons unattended and the gun in the car, Loud went to help his fellow officers cuff Hardee, and told them about the gun (Loud 82).3 After Hardee was handcuffed, the officers took him to the 25th Precinct, where he was arrested (Siani 27, 61; Loud 82-83, 108-09, 173-74). At the precinct,4 At the time Loud searched the car, Hardee was standing at the rear of the car with3 Kailer 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 (Loud 102- 03, 107-08). Had there been any kind of struggle, Loud would not have gone into the car but instead would have tried to assist them (Loud 102-03, 107). The combined Mapp/Dunaway/Huntley hearing also addressed several statements4 Hardee made at the precinct. The court suppressed these statements because the police failed to (continued...) 5 police searched Hardee’s car and found a half-full bottle of vodka on the floor in the back seat (Loud 88, 106). 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). See Second Grand Jury Indictment, in record on appeal. 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 his back seat, his hesitation to leave the car, Kailer’s frisk and tone of voice— were “insufficient to justify his search of the vehicle,” so the recovered gun should be suppressed. Post Hearing Affirmation (“Affirmation”) at ¶ 19. Counsel noted that a warrantless search like Loud’s is only permitted only where “‘the likelihood of a weapon in the car . . . [is] substantial and the danger to the officer’s safety ‘actual and specific.’’” Id. at ¶ 20 (citing People v. Carvey, 89 N.Y.2d 707, 711 (1997) and People v. Torres, 74 N.Y.2d 224 (1989)). Loud’s observations only “provided a basis for a hunch, not an objective substantial basis, to believe there was a gun.” Id. 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 (...continued)4 provide Hardee with Miranda warnings before interrogating him. Decision at 14. 6 rear of the vehicle.” Id. Because the circumstances did not justify the search, the gun should be suppressed. Id. at ¶ 22. In response, the People compared Hardee’s case to that of the defendants in People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005), in which this Court 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. Affirmation and Memorandum in Opposition to Motion to Suppress (“Opposition”) at 6-7. The People also argued that Hardee was “never fully isolated from the vehicle.” Opposition at 8. Moreover, Hardee “was noncompliant, extremely nervous and eventually violently combative,” creating an “actual and specific danger” which justified the search. Id. at 9. The Court’s Mapp Decision On November 1, 2011, the court issued a written decision denying suppression of the gun. The court found that after the lawful stop, police “had the right to conduct a limited search of the interior of the car once defendant and Ms. Simmons had been removed.” Decision at 11. 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 People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005), the court found that Hardee’s “nervousness, his persistent movements inside the vehicle, his repeated 7 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.” Decision at 13. The court also found Loud’s concerns reasonable given that Kailer had frisked Hardee. Id. The court distinguished Hardee’s case from the defendant’s in People v. Hackett, 47 A.D.3d 1122 (3d Dept. 2008) because “in this case there was actually a ‘specific threat’ presented by defendant’s conduct which allowed Loud to check the floor behind the passenger seat.” Decision at 13. Motion to Reargue Newly assigned counsel submitted a motion pursuant to C.P.L.R § 221(d) to reargue because the court misapprehended facts and law. Counsel argued in part that: there was nothing about the circumstances of the defendant’s lack of cooperation and apparent nervousness which provides any objective basis for a belief that there was a weapon concealed in the car. The defendant’s looking about himself was associated by the police with an intention to run away . . . which does not in itself indicate the presence of a weapon in the car and actually militated in favor of the safety of the officers, rather than the reverse. . . . It is obvious but worth emphasizing that the defendant’s jitteriness and lack of cooperation could have been prompted by the presence of any other form of contraband within the automobile, or by simple fear of authority. (Motion to reargue at ¶ 10). The People opposed the motion on the grounds that “[d]efendant has not identified any area of law that was either overlooked or misapprehended,” and in 8 any case, “there is no reason to depart from the Court’s original decision.” Opposition to Motion to Reargue at 1. The court summarily denied the motion in a written decision on July 10, 2012. Plea and Sentence On October 3, 2012, the prosecutor proposed, and the court agreed, that Hardee could either plead guilty to attempted criminal possession of a weapon in the second degree and waive his right to appeal in return for a sentence of 12 years to life, or, in order to retain his right to appeal, could plead guilty to criminal possession of a weapon in the second degree in return for a sentence of 16 years to life (P 3-4, 8-10). On January 22, 2013, Hardee was adjudicated a persistent violent felony offender, having been convicted of robbery in 1982 and 1989 (S 10-12). Hardee5 chose to retain his right to appeal the court’s suppression decision, and pled guilty to possessing a loaded firearm in his car (S 14-15, 17). He was thereafter sentenced, as promised, to 16 years’ to life imprisonment (S 20-21). Hardee agreed to plead guilty before and irrespective of his challenge to his persistent5 predicate felony status, with the understanding that he would be in a different “sentencing category” if he successfully challenged his predicate status (P 3-4, 9). Hardee’s challenge to his prior conviction on the grounds of ineffective assistance of counsel was denied (S 10-12). 9 ARGUMENT THE POLICE CONDUCTED AN UNCONSTITUTIONAL SEARCH OF APPELLANT’S CAR WHEN—AFTER APPELLANT AND HIS COMPANION HAD BEEN REMOVED, FRISKED, AND SECURED WITHOUT INCIDENT—AN OFFICER SEARCHED THE BACK SEAT WITHOUT REASONABLE CAUSE TO BELIEVE 1) THERE WAS A SUBSTANTIAL LIKELIHOOD THAT ANY WEAPON WAS PRESENT OR 2) THAT IT POSED AN ACTUAL AND SPECIFIC DANGER. Officers stopped Stanley Hardee’s car for speeding and changing lanes without signaling. Hardee’s response to the stop indicated some nervousness and reluctance on his part, but nothing he did provided any basis to suspect the presence of a weapon. Nobody was observed stashing or removing anything in the car, and at the time of the search, Hardee had been frisked without incident, and he and his companion were standing at the rear of the vehicle, surrounded by two officers. Contrary to the lower court’s decision, the totality of the evidence failed to support a finding that police reasonably believed there was a weapon in the car or that it presented an actual and specific danger to the officers. Because the officer’s search inside the car was unconstitutional, the lower court should have suppressed the recovered gun as the result of an illegal search. Therefore, this Court should reverse Hardee’s conviction and dismiss the indictment. U.S. Const., Amends. IV, XIV; N.Y. Const., art. I, § 12. A police officer is not permitted to search a vehicle merely because that 10 vehicle was pulled over for a traffic infraction. In general, when occupants of a6 car stopped for a traffic infraction in New York are removed and frisked without recovering a weapon, the police have no authority to 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 in cases where police have concrete reason to believe there is a weapon in the car that presents a real danger to the officers. As the Court of Appeals 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.” People v. Torres, 74 N.Y.2d 224, 231 n.4 (1989). Notably, “reasonable suspicion [of a weapon] alone will not suffice” to trigger the Torres exception. Carvey, 89 Hardee does not dispute that the car he was driving was lawfully stopped and the6 occupants lawfully removed. See People v. Robinson, 74 N.Y.2d 773 (1989); People v. Ingle, 36 N.Y.2d 413 (1975). 11 N.Y.2d at 711; see Torres, 74 N.Y.2d at 227 (“a reasonable basis for suspecting the presence of a gun” would be insufficient to justify a protective search) (emphasis in original).7 This Court has explained the Torres exception as a two part test: police may conduct a narrowly tailored weapons search only if information gathered during the stop and before the search reveals that “1) there is a substantial likelihood of a weapon being present in the vehicle which 2) poses an ‘actual and specific danger’ to the officer’s safety.” People v. Newman, 96 A.D.3d 34, 42 (1st Dept. 2012) (quoting Carvey, 89 N.Y.2d at 710-11) (emphasis added). Neither part of the test was met in this case. Courts use a totality of the circumstances test to determine whether such a protective search of a car is legal, and while individual facts can differ, this Court has noted that 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 New York has rejected the United States Supreme Court’s more lenient “reasonable7 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)). Our Court of Appeals has flatly rejected this standard as being inconsistent “with the privacy rights guaranteed by our State Constitution. N.Y. Const., art. I, § 12.” Torres, 74 N.Y.2d at 227. However, Hardee maintains that the police violated his constitutional rights even under the more lenient federal standard. 12 intrusion of searching the area where a defendant’s movements took place.” Newman, 96 A.D.3d at 42 (emphasis in original) (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)). Police never suggested that either Hardee or his companion made this critical movement, much less in conjunction with some other “suggestive factor.” In Newman, police pulled over a car whose license plate was obstructed, and, as they approached the car, the officers observed the three occupants moving around, putting something down and picking something up. When the officers reached the window, defendant Newman pretended to be asleep, but then suspiciously reached under his seat, purportedly to look for paperwork, after he perfunctorily looked in the glove compartment. Given these circumstances, the officers “had ample reason to believe that 1) there was a substantial likelihood that [Newman] had a weapon underneath his seat that 2) posed an actual and specific danger to their safety . . . . [so] the police were justified in conducting a limited search of the area where they saw Newman reaching.” Id. at 43. Since Newman, this Court has continued to find that appearing to hide something in the vehicle is a critical element when upholding a protective search. See, e.g., People v. Leach, 114 A.D.3d 518 (1st Dept. 2014) (allowing search where, during traffic stop, 13 police observed defendant remove something from his waistband and put it in the center console, after he failed to pull over and did not provide his license or registration); People v. Feldman, 114 A.D.3d 603 (1st Dept. 2014) (finding frisk legal where police observed defendant attempting to stuff something under the passenger seat and driver physically struggled with fellow officer). The Court of Appeals cases justifying a search have also found the appearance of reaching for or stashing a weapon, among other factors, to be crucial, yet was absent in this case. For instance, in Carvey, after the car had been stopped for not having a rear license plate and after the driver had failed to produce a license, registration, or insurance card, an officer noticed the defendant (a passenger in the rear seat) bend down and place something under the seat with his right hand. Carvey, 89 N.Y.2d at 709. Moreover, defendant was wearing a bullet proof vest, which demonstrated “its owner’s readiness and willingness to use a deadly weapon,” warranting the more intrusive protective measure. Id. at 712 (emphasis in original). In People v. Mundo, 99 N.Y.2d 55 (2002), one of the cases on which the lower court relied to reach its decision, two patrol officers observed a car with out-of-state plates make an illegal right turn through a red light. Id. at 57. The officers twice attempted to pull the car over, but each time it evaded them, and almost struck a pedestrian. Id. In addition to the two car chases initiated by the 14 car’s occupants and their lack of concern for the safety of others, the Court highlighted the officers’ observation of “defendant attempting to stash something in the middle area of the rear seat” as giving rise to “a perceptible risk . . . that a weapon located within the vehicle would be a specific danger to their safety.” Id. at 59. Here, by contrast, there was no suggestion that either Hardee or his companion committed the decisive 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” (Siani 18)). The cases on which the lower court relied to reach its decision are distinguishable from Hardee’s not just because in every other case the defendant was observed hiding or removing something, but because in each case the defendant engaged in additional dangerous or elusive behaviors that Hardee did not. For instance, in People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005), police officers pulled over a speeding car that had cut them off, almost causing an accident. During the ensuing stop, in addition to seeing Fludd secret something in the back seat, the occupants did not comply with officers’ orders to keep their hands in view Id. at 351-52. In People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011), not only did police see the defendant stash something in the center 15 console, but the defendant tried to elude officers before finally pulling over. Hardee’s actions—pulling the car over without incident, turning his head 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—were benign compared to the defendants’ actions in Mundo, Flood, and Omowale on which the lower court relied. Hardee pulled over when directed to do so, and his temporary lack of response to Kailer’s initial requests to get out of the car were nowhere near as threatening, hazardous, or suspicious as the Mundo or Omowale defendants’ attempts to evade police in their vehicles, almost hitting other people while doing so. Nor was his looking around his own car a few times as potentially dangerous as the Fludd defendants’ refusal to keep their hands where police could see them. Of course, as noted above, there was no testimony or suggestion that the officers observed Hardee or Simmons attempt to hide or remove anything in the car. Instead, Hardee’s actions were, as Siani consistently characterized them, expressions of nervousness (Siani 16, 17, 18, 20, 23, 43). It is well established that8 movements in a car that reflect nervousness alone cannot provide an officer with requisite cause to search a vehicle. See Newman, 96 A.D.3d at 43, n. 2; People v. Hackett, 47 A.D.3d 1122, 124 (3d Dept. 2008) (while “defendant seemed nervous Loud and Siani heard Kailer use soothing language, telling Hardee to “relax,” and that8 he should not worry, indicating that Kailer did not believe Hardee posed a threat, either (Siani 17; Loud 78, 113). 16 and repeatedly looked at his vehicle, this conduct, in an of itself, is insufficient to justify a search”). The Court of Appeals recently agreed with this Court 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); aff’g, People v. Garcia, 85 A.D.3d 28, 30 (1st Dept. 2011). 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. 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. In any case, even if Hardee’s nervousness9 and initial reluctance to get out of the car provided reasons for the officers to be generally suspicious, there were no specific indicators that there was “‘a weapon in The court also cited Kailer’s frisk of Hardee as contributing to Loud’s concerns9 (Decision at 13). However, the Torres exception considers whether an intrusion is reasonable after the passengers have been ordered out of the car and frisked. The frisk itself cannot provide the requisite cause to further intrude on occupants’ privacy rights. 17 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. See People v. May, 52 A.D.3d 147, 151 (1st Dept. 2008) (“Mere ‘hunch’ or ‘gut reaction’ will not” provide even reasonable suspicion.). This is particularly so where Hardee had admitted to having alcohol in the car, and his nervousness could logically have been attributed to that admission. Notably Siani, the officer who had more opportunity to watch and interact with Hardee, never said he believed there was a weapon in the car. Loud acknowledged that his focus during the stop had been on Simmons (Loud 98), yet he was the officer who conducted the search and justified it in part based on his fellow officers’ actions. Siani, who had a much better opportunity to observe Hardee because he was standing on Hardee’s side of the car during the initial conversation and frisk, and stood with him at the rear of the vehicle, never testified that he believed there was a weapon present. In fact, he noted that while Hardee appeared nervous, he was “compliant” during the frisk, and his main concern ultimately became Hardee’s potential flight, and perhaps that he might “fight,” but he never indicated that he believed there was a weapon present (Siani 20, 46, 51, 52, 62). Loud’s beliefs were not only unreasonable and unjustified by the facts, but not shared by his fellow officers. The jurisprudence elucidating the Torres exception should compel this 18 Court to invalidate Loud’s search of Hardee’s vehicle and suppress the evidence. This claim is fully preserved for review as a matter of law. See C.P.L. § 470.05(2). Defense counsel presented the same arguments that appellant now raises on appeal in his written submissions following the suppression hearing, and in his motion to reargue. The lower court erroneously rejected these arguments and denied suppression. Thus, the claim is properly before this Court. In sum, the record failed to establish that Loud reasonably concluded that a weapon located within the vehicle presented an actual and specific danger to the officers’ safety. There was certainly no articulable, substantial, actual, specific, or imminent danger to Loud which could have possibly justified the warrantless search of Hardee’s vehicle, especially since at the time of the search Hardee had voluntarily left his car, been frisked without incident (no weapons having been found), and was leaning on the rear bumper in a manner designed to protect the police, with two officers standing next to him. Consequently, Loud’s search was unlawful. Because the hearing court erred in denying Hardee’s suppression motion, this Court should reverse his judgment of conviction, suppress the evidence derived from the officer’s unlawful search of the car, and dismiss the indictment. 19 CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT SHOULD SUPPRESS THE GUN, VACATE APPELLANT’S PLEA, AND DISMISS THE INDICTMENT. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant-Appellant Rachel T. Goldberg Of Counsel April 14, 2014 20 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STANLEY HARDEE, : Defendant-Appellant. : -------------------------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 5558/10. 2. The full names of the original parties were People of the State of New York against Stanley Hardee. 3. This action was commenced in Supreme Court, New York County. 4. This action was commenced by the filing of an indictment. 5. This is an appeal from a judgment of the Supreme Court, New York County, convicting appellant, upon a plea of guilty, of one count 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 sixteen years’ to life imprisonment (Charles Solomon, J., at hearing; Michael J. Obus, J., at plea and sentence). 6. This is an appeal from a judgment of conviction rendered January 22, 2013. 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. 1-A PRINTING SPECIFICATIONS STATEMENT The brief was prepared in WordPerfect 6, using a 14-point Garamond font in the text and headings, and 12-point Garamond font in the footnotes. The word count is 4,888, excluding the Table of Contents and Table of Authorities. 2-A