In People v. Harrison (57 N.Y.2d 470, 476), the Court of Appeals held that: "Confining the occupants to the car, even temporarily, is at least equivalent to a stop.Summary of this case from People v. Melvis
Argued September 3, 1982
Decided November 18, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PHILIP J. CHETTA, J.
John J. Santucci, District Attorney ( Michael J. Connolly of counsel), for appellant.
Jack L. Schiller for Nathaniel Harrison, respondent.
Two related search and seizure questions are presented by this appeal. First, whether the use of a dirty rental car in the City of New York establishes reasonable suspicion, as a matter of law, that the occupants are engaged in criminal activity. Second, whether the police officers' actions in approaching the parked car, asking the driver for his license and registration and further ordering the three occupants to remain in the vehicle constituted such a minor intrusion on constitutional rights that the police may do so absent reasonable suspicion. The trial court held for the defendants on both points and suppressed the evidence seized from the car. The Appellate Division affirmed, with one dissent. The prosecutor appeals.
On January 4, 1979 two New York City police officers, Stahl and Dillon, were on patrol in an unmarked car in Queens County. Dillon was driving and Stahl was acting as "recorder" in the passenger seat. Both officers were in plain clothes. At approximately 1:00 A.M. Officer Stahl, the only witness for the prosecution to testify at the hearing, observed a 1978 Chrysler Cordoba carrying three black men pass in the right lane. The officer could tell from the license plate that it was a rental car, and noted that it was extremely dirty. The police followed the car for three to five blocks until it parked near an open bar. Officer Stahl told his partner to pull up next to the car, and then park behind it. The officer conceded at the hearing that up to that point he had not observed the defendants violate any law and that his interest was aroused solely by the fact that the men were riding in a dirty rental car.
The officer also testified at the hearing that the rear license plate appeared to be hanging at an angle. On cross-examination, however, he conceded that he had not made any reference to this in his reports or notes or in his prior testimony at the preliminary hearing. The defendant testified that the license plate was located in a recessed compartment above the rear bumper which protruded approximately five inches beyond the point where the license plate rested. He stated that the plate covered the gas tank and when he filled the tank several hours prior to his arrest he observed the plate was properly attached. He also introduced in evidence a photograph of a 1978 Cordoba showing the rear license plate positioned in this manner. In its decision the trial court stated that the condition of the plate had "not been considered by the court in determining the reasonableness of the police conduct as based on Officer Stahl's testimony, the court concludes that the plate did not cause the initial pursuit or subsequent questioning of the defendants". The Appellate Division agreed with that finding. Although the People urge that these findings are based on a misunderstanding of the officer's testimony, we, of course, are bound by the factual determinations, particularly in view of the clear credibility question presented at the hearing (see, e.g., People v Zimbardo, 21 N.Y.2d 15).
After parking behind the defendants the officers left their car and walked toward the other vehicle. As Officer Stahl approached he noticed that it was a two-door sedan; that the defendant Cabey was in the driver's seat; that another man, Gilbert Williams, was sitting in a slumped position in the rear seat; and that the defendant Harrison had opened the door and was proceeding to get out of the car. Stahl immediately told Harrison to get back in the car. He also told Williams to sit up. Both men complied with these directions. Officer Dillon then stationed himself beside the passenger door while Stahl crossed to the driver's side, identified himself as a police officer and told Cabey to produce his license and registration.
Cabey told the officer that he did not have his license and that Harrison had the registration papers. While Harrison looked for those papers Officer Stahl returned to the police car and checked to see if the rental car had been reported stolen. He was informed that it was not but that it had been listed as an impounded vehicle. While Stahl attempted to determine what that meant he looked through the briefing notes he had taken at the beginning of his tour and found that approximately 24 hours ago three men roughly fitting the description of the defendants and Williams had committed an armed robbery in the area and had fled in a "new" bluish green Cordoba, similar in color to the defendants' vehicle.
As Officer Stahl walked back toward the defendants' car he noticed that the defendant Harrison was lifting up his head from a crouched position. When the officer pointed his flashlight into the car at the floor in front of Harrison he saw a .22 caliber revolver. Stahl then drew his gun and informed his partner of the gun. During the subsequent search of the car and its occupants the officers found two more handguns and ammunition.
At the station house Harrison was able to produce a registration for the vehicle and a receipt showing that the vehicle was no longer impounded and thus, as the officer conceded at the hearing "was properly in his possession". The defendants, however, were charged and subsequently indicted for unlawful possession of the weapons.
The record is not clear as to why the vehicle had been impounded, but it appears that it is related to a seizure of the car by the city in connection with a traffic or parking violation. It is conceded that the car had been released to the defendant some time prior to his arrest, and that the police records had not been updated to reflect this.
There is no indication in the record that the defendants were charged with the robbery which occurred a day or two prior to their arrest.
As noted the trial court granted the defendants' motion to suppress the evidence seized from the vehicle. The court held that Officer Stahl's actions in ordering the occupants to remain in the vehicle "constituted more than the minimal intrusion of requesting information" and could not be justified "in the absence of any indication of criminal activity". The court also held that when the officer gave the order he was relying solely on the fact that the three men were occupying a dirty rental car, which the court found was insufficient to provide the requisite reasonable suspicion that "criminal activity was afoot".
The Appellate Division affirmed agreeing that reasonable suspicion was the appropriate standard and that the facts did not establish reasonable suspicion. One Justice dissented, agreeing essentially with the prosecutor's position.
At the outset we observe that, in view of the factual findings made below, this case does not deal with the powers of the police to stop a vehicle. Here the defendants had voluntarily stopped the vehicle and parked it before the police approached. The prosecutor notes that under our decision in People v De Bour ( 40 N.Y.2d 210) a police officer does not need reasonable suspicion to approach an individual for information. All that is required is an articulable basis, which in this case was supplied by the extremely dirty condition of the defendants' rental car. The prosecutor further contends that once the officers had the right to approach the car they could reasonably direct the occupants to remain in the car because this reduces the potential danger to the police and is "an extremely minor intrusion on the defendants' rights". It is urged that this is comparable to police officers ordering defendants out of a car to protect themselves which, the prosecutor contends, was recently held constitutional in Pennsylvania v Mimms ( 434 U.S. 106). The prosecutor also contends that the courts below erred in finding the facts insufficient in this case because our recent decision in People v Roman ( 53 N.Y.2d 39) stands for the proposition that "the initial stop" can be justified "on the basis of the unusual condition of the defendant's rented car".
The prosecutor's primary argument overlooks the basis for our holding in De Bour. In that case we observed (at p 223) that "the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence". Thus when we held in that case that a police officer did not need reasonable suspicion to approach a citizen for further information we did so only because we recognized that such an inquiry involved a minimal intrusion that was not equivalent to a stop in which the individual's freedom of movement is significantly interrupted (see People v De Bour, supra, at pp 216, 223). It should be evident from our holding in that and subsequent decisions that if the police escalate the encounter as they did here by exercising restraint over the individual as opposed to his vehicle, even out of concern for their safety, a more substantial predicate is required. In other words, before the police can forcibly or constructively stop an individual as was done here by the order to remain in the car there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers ( People v De Bour, supra, at p 216; People v Carrasquillo, 54 N.Y.2d 248, 252). Under the prosecutor's analysis reasonable suspicion would never be required because every stop begins with a police officer approaching an individual for information — a situation in which there is at least an unfounded risk to the officer's safety.
Neither is there any merit to the argument that prohibiting the occupants from leaving the automobile is such a minor intrusion on their rights that the police may do so absent reasonable suspicion. Confining the occupants to the car, even temporarily, is at least equivalent to a stop. A temporary stop is of course less intrusive than an arrest and thus does not require probable cause (see, e.g., Terry v Ohio, 392 U.S. 1; People v De Bour, supra; see, also, People v Ingle, 36 N.Y.2d 413; Delaware v Prouse, 440 U.S. 648). However a stop is nevertheless a limited seizure of the person which at least requires reasonable suspicion ( Terry v Ohio, supra; People v De Bour, supra; see, also, CPL 140.50, subd 1). The Supreme Court's decision in Pennsylvania v Mimms ( 434 U.S. 106, supra) does not, as the prosecutor suggests, represent a departure from that requirement in cases involving police encounters with those using the public highways.
The key fact in the Mimms decision is that the driver had been lawfully stopped for a traffic offense. The court noted (at p 111) that the police had "already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it". The court concluded that out of a concern for his own safety the police officer could order the driver out of the vehicle because under the circumstances (at p 109) "the incremental intrusion resulting from the request to get out of the car" once the driver had been lawfully stopped "can only be described as de minimis". The court did not hold that the police could take similar action when, as in the case now before us, the driver had not been lawfully stopped for a violation of the law. Indeed the court expressly noted (at p 111, n 6) that "we do not hold today that `whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car'. We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures".
In sum, the courts below were correct in their conclusion that the police officers' actions were unjustified in the absence of reasonable suspicion.
The courts' further holding that reasonable suspicion was lacking in this case involves a mixed question of law and fact which is beyond the review powers of this court if the evidence at the hearing supported the determination made by the lower courts (see, e.g., People v Wharton, 46 N.Y.2d 924, 925; People v Clements, 37 N.Y.2d 675, 677-678; People v Oden, 36 N.Y.2d 382, 384-385). The rule applies "where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn" ( People v McRay, 51 N.Y.2d 594, 601). The dissenter's contention with respect to inferences was specifically rejected in People v Alexander ( 37 N.Y.2d 202; see, also, People v Morales, 42 N.Y.2d 129, 137-138). The rule, it should be noted is not an oddity employed only in a limited category of cases. It is a basic principle which has been broadly applied to a wide variety of issues including, for instance, whether a defendant consented to questioning ( People v Morales, supra), whether the police exercised due diligence in attempting to locate an informer ( People v Budd, 46 N.Y.2d 930), whether there was custodial interrogation ( People v Williamson, 51 N.Y.2d 801), whether a room was exclusively in the defendant's control ( People v Minori, 51 N.Y.2d 930, 931), whether there was consent to search ( People v Meredith, 49 N.Y.2d 1038), whether there was an intent to abandon property ( People v Hogya, 56 N.Y.2d 602), and of course whether there was probable or reasonable cause for a search ( People v Alexander, supra; People v Wharton, supra; People v Rizzo, 40 N.Y.2d 425 [noting that the rule applies to findings that probable cause did not exist as well as findings that there was probable cause]). The application of the rule in search and seizure cases especially accords with the general principle long recognized in civil cases that questions of the reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute (see, e.g., Andre v Pomeroy, 35 N.Y.2d 361).
The dissent has characterized this as a self-imposed rule, which of course is often true of judicial precedents. To the extent it is meant to suggest that the rule is somehow less binding than legislative pronouncements, the observation misconceives the nature of the judicial process. Judges, too, are expected to follow the law, even when they have played a part in fashioning the rule.
In the case now before us there is no basis for setting aside the finding of the courts below that the defendants' use of a dirty rental car in the City of New York did not establish reasonable suspicion that they were involved in criminal conduct. Contrary to the dissenter's view it is not common knowledge that ordinarily rental cars are relatively clean and well maintained. Rental companies may rent their cars in that condition but their customers are not always so fastidious. The cars are often rented to individual customers for weeks or months at a time and it is not always possible, even for concerned customers, to maintain the cars in their original condition, particularly in large metropolitan areas. Thus if the defendants' use of a dirty rental car in the City of New York could give rise to reasonable suspicion, that certainly was not the only inference that could be drawn. Because reasonable minds could differ as to the inferences and thus as to whether the police action was justified, further review by this court is precluded ( People v Wharton, 46 N.Y.2d 924, supra).
Our holding in People v Roman ( 53 N.Y.2d 39, supra) is not to the contrary. In that case the defendant was stopped after he was found to be driving a dirty rental vehicle, with extensive damage, in an area known as a dumping ground for cars. Under those circumstances the lower courts held that there was reasonable suspicion of criminality and we deferred to their determination. The case simply illustrates the general rule that questions of reasonableness "must necessarily turn on the facts in each individual case" ( People v Green, 35 N.Y.2d 193, 195; People v Prochilo, 41 N.Y.2d 759, 761) and that the determination of the lower courts on such points is not to be set aside if it is supported by the record. The case does not stand for the proposition that the use of a dirty rental car establishes reasonable suspicion as a matter of law, or that the police are always justified in approaching the occupants for information and prohibiting them from leaving a car whenever the car bears rental plates and is apparently in need of cleaning.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge COOKE and Judges JONES, FUCHSBERG and MEYER concur with Judge WACHTLER; Judge JASEN dissents and votes to reverse in a separate opinion; Judge GABRIELLI taking no part.
The majority today holds that the police officers' actions in making a simple inquiry of the occupants of a "very, very dirty" parked rental car as to the ownership of the vehicle and requesting one of the occupants to remain in the car as he attempted to exit before the inquiry could be conducted were unjustified in the absence of "reasonable suspicion * * * that the occupants [of the vehicle were] engaged in criminal activity."
I do not believe that the proper legal standard to be applied under the circumstances present here is reasonable suspicion that criminal activity is afoot but, rather, all that is required and all that should be required for a police officer to request any information is an objective credible reason for making the inquiry, which need not necessarily be related to criminality. ( People v De Bour, 40 N.Y.2d 210, 223.) Thus, I would hold that the police had a right, based on an objective credible reason, to initiate an inquiry of the driver of the vehicle and that the police officers' conduct in requesting Harrison to remain in the vehicle as he attempted to exit was justified and reasonable under the circumstances. Accordingly, I would reverse the order of the Appellate Division and deny defendants' motions to suppress the seizure of three loaded revolvers.
At the outset, it is important to note that this case does not involve a stopping or blocking of a motor vehicle by the police. Nor does it involve a stop and frisk situation, or a case where the police approached the car with guns drawn and ordered the occupants to freeze and not move. All that happened was that two police officers observed a "very, very dirty" rental car with a rear license plate hanging askew. They approached the parked car to inquire of the occupants as to the ownership of the vehicle and requested one of the occupants, defendant Harrison, to remain in the car as he attempted to exit. At this point, Officer Stahl proceeded to the driver's side of the vehicle where he asked to see defendant Cabey's license and registration. Another passenger, Williams, who was lying down in the back seat, was told to sit up. Cabey stated that he did not have either a driver's license or the registration for the car. Harrison volunteered his license, but did not have the registration. Williams remained silent. Officers Stahl and Dillon then returned to the patrol car and ran a license plate check which indicated that the car was an impounded vehicle. Shortly thereafter, Officer Stahl reviewed notes he had taken earlier that day during a briefing session and recalled that three men matching the description of the men in the Chrysler had robbed a store approximately one mile away the previous night. The robbery suspects had used a late model Chrysler as a getaway car. The officers then left their car and were approaching defendants' vehicle when Officer Stahl noticed Harrison rise from a crouched position. The officer shone his flashlight at the floor near where Harrison was sitting and noticed a revolver under Harrison's feet. The officers then searched the car, found three loaded revolvers and placed the suspects under arrest.
In analyzing the actions of these officers, "[w]e bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence." ( People v De Bour, 40 N.Y.2d 210, 223, supra; see, also, People v Ingle, 36 N.Y.2d 413. ) In deciding whether the police officers acted reasonably, it is necessary to consider "(1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement [officers] relied, in light of [their] knowledge and experience." ( People v Howard, 50 N.Y.2d 583, 589.) It must also be remembered that "the authority to intercept persons on the street is derived from two sources, the stop-and-frisk law (CPL 140.50) and the common-law power to inquire." ( People v Cantor, 36 N.Y.2d 106, 112.) While reasonable suspicion that a particular person has committed, is committing, or will commit a crime is required before the police may stop and frisk that individual (CPL 140.50, subd 1; Terry v Ohio, 392 U.S. 1; People v De Bour, supra, at p 223), less is required when a police officer is merely requesting information from an individual ( People v De Bour, supra, at p 223).
Applying these factors, it must be determined whether (1) the police officers were justified in conducting an inquiry of the defendants as to the car; and (2) whether the scope of the officers' conduct in conducting the inquiry — i.e., the request of the officers to Harrison not to leave the car — was reasonable under the circumstances.
As to the propriety of the inquiry, the question is whether the officers under the undisputed facts present here were justified in approaching defendants' car to request information as to ownership of the vehicle. To justify this action, only an objective credible reason for doing so, not necessarily related to criminality, is all that is required. ( People v De Bour, supra, at p 223.) To require reasonable suspicion would not only contradict the principles espoused in People v De Bour, but would defy common sense as well. The policies underlying this principle are deeply rooted in the opinions of this court, as well as those of the United States Supreme Court. In People v Rivera ( 14 N.Y.2d 441, 445), this court recognized that "the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest." This recognition was expressly based on the grounds that "[t]he business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off." ( People v Rivera, supra, at pp 444, 445.) "[T]he legal theory of Rivera on the initial general right of police inquiry on the streets was approved in the note to Chief Justice WARREN'S opinion in Terry v. Ohio ( 392 U.S. 1, 11, n. 5)." ( People v Rosemond, 26 N.Y.2d 101, 104; see, also, People v Peters, 18 N.Y.2d 238, 242.)
Defendants' reliance on People v Cantor ( 36 N.Y.2d 106) is misplaced since defendant therein was forcibly seized when he was surrounded by three policemen while his car was blocked by a police vehicle. There is no doubt that reasonable suspicion is required before a person is forcibly seized. ( People v De Bour, 40 N.Y.2d 210, 223.)
It seems abundantly clear that Officers Stahl and Dillon had an objective credible reason to request the license and registration of defendant Cabey, based upon the car's condition — i.e., the car involved was rented, it was "very, very dirty", and it was missing a bolt securing the license plate, which caused the license plate to hang askew. It was the unusual condition of the car, which the officers knew was rented by virtue of the license number, which attracted the officers' attention since it is common knowledge that ordinarily rental cars are relatively clean and well maintained.
In a similar case, we held that police officers who observed a very dirty rental car with a dented fender in an area known for "dumping" acted with reasonable suspicion when they stopped that car. ( People v Roman, 74 A.D.2d 589, revd on other grounds 53 N.Y.2d 39.) Our decision in Roman implicitly recognized the fact that automobile rental companies routinely keep their cars clean and well maintained. It was decided, therefore, that, based upon the unusual condition of defendants' rented car, giving rise to some suspicion involving the vehicle, police investigation was required. The reasoning of Roman is equally applicable here. The observations of Officers Stahl and Dillon were more than sufficient to arouse the suspicion of the officers as to the ownership of the car involved. The need to inquire and investigate was not the result of an arbitrary whim or caprice, but, rather, was based upon objective facts which warranted the intrusion of an inquiry as to the vehicle. Under these circumstances, I believe they acted reasonably in approaching the car to verify their suspicion.
It is also beyond dispute that the officers, subsequent to approaching the car for the second time, but before searching it, had reasonable suspicion that criminal activity was afoot after Cabey admitted that he had no license or registration and after it was learned that the Chrysler was an impounded vehicle and that it was similar to the getaway car used in the nearby robbery the previous night involving suspects matching defendants' descriptions.
Turning then to the second prong of the analysis — whether the scope of the officers' conduct in making the inquiry (i.e., the request of the officers to Harrison not to leave the car) was reasonable — regardless of how one characterizes the request by the police that Harrison remain in the car (i.e., limited seizure or limited intrusion), it is clear that the act constituted only a minor inconvenience which was necessary for the officers to attempt to obtain the information they had a right, if not a duty, to seek. ( People v De Bour, supra, at p 220; People v Rivera, supra, at p 444.) A less intrusive interference by the police while attempting to elicit proper and lawful information is difficult to imagine.
For this reason and the reasons to follow, I conclude that the officers acted reasonably in this case. This conclusion becomes even clearer when the interests of the government are balanced against the severity of interference with the defendants' individual rights. ( People v Howard, 50 N.Y.2d 583, 589, supra.) The interference with the defendants' rights was minimal. They were not forced over to the curb and instructed to stop and park their car. No force, either actual or implied, was used and defendants were not degraded in any way. Moreover, if the inquiry dispelled the officers' justifiable suspicion, the defendants would have been free to exit the parked vehicle and go about their affairs. The officers did not even conduct a significant interrogation. Harrison was merely told to stay in the car while Cabey was asked for his license and registration. In a case involving a similar issue, the United States Supreme Court held that ordering a person to get out of his car was a de minimis intrusion. ( Pennsylvania v Mimms, 434 U.S. 106, 111.) I believe, therefore, that ordering Harrison to remain in the car until an inquiry could be made was even less intrusive. It cannot be seriously contended that the slight inconvenience imposed on Harrison or the other occupants of the car was significant in any way. (See People v Rivera, supra, at p 447.)
The interests of the government, on the other hand, were compelling. Officer Stahl, in properly attempting to request information of the defendants, sought assurance that Harrison remain in the car. This was necessary not only so that Harrison could be questioned, if necessary, but also to insure the safety of the police officers. "If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great." ( People v Rivera, supra, at p 446.) Former Judge BERGAN made this statement in an opinion justifying a frisk. His words apply with even greater force when a much less intrusive action such as a request to remain in a car is at issue. The alarming increase in acts of violence directed against police officers speaks for itself. "We think it too plain for argument that the State's proffered justification — the safety of the officer — is both legitimate and weighty." ( Pennsylvania v Mimms, supra, at p 110.)
It is imperative that police officers not be stripped of the right to impose a very slight inconvenience on an individual when it is necessary for the protection of the officer. The opinion of the majority, requiring a police officer to have reasonable suspicion of criminal activity before ordering an individual to remain in his car, would effectively destroy the right of the police to safely request information and make proper inquiries. That requirement also conflicts with the standards established by this court in People v De Bour ( supra, at p 223). Additional support for the compelling nature of the State's interest in this issue is found in a study which reported that "approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile." (Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J Crim L C P S 93 , cited in Pennsylvania v Mimms, supra, at p 110; see, also, Adams v Williams, 407 U.S. 143, 148, n 3.) Such a situation is frighteningly apparent in the instant case involving a nighttime inquiry where the occupants of the car outnumbered the police. The chain of events whereby Harrison sought to get out of the car as the officers approached, his subsequent bending over in the front seat after being ordered to remain in the car, and the ultimate discovery of a loaded revolver on the floor under his feet paints a chilling scenario of what might have happened had Officer Stahl not told Harrison to remain in the car.
The majority fears that under this analysis "reasonable suspicion would never be required because every stop begins with a police officer approaching an individual for information." I find little merit in the majority's concern for two reasons. First, this analysis criticized by the majority was unanimously adopted and approved by our court in People v De Bour. ( 40 N.Y.2d 210, 218-219.) Second, it is beyond dispute that reasonable suspicion, rather than an objective credible reason, is required before a person can be legally stopped. ( Terry v Ohio, 392 U.S. 1; CPL 140.50, subd 1.) However, in cases such as this, where no stop of a vehicle is involved and the police are merely requesting information, only an objective credible reason for making the request is required. The interference caused by the actions taken by the police during the course of the inquiry must then be balanced against the precipitating and surrounding circumstances in order to determine the reasonableness of those actions. Consequently, the fears voiced by the majority are unfounded.
Since the police have a duty to protect the public by requesting information and making reasonable inquiries concerning unusual events or activities, it is incumbent upon the courts not to allow unreasonable restrictions to be imposed on those officers which would endanger their lives. After an officer has an objective credible reason for seeking information, he must be allowed to follow reasonable procedures which will allow him to make the necessary inquiries and at the same time insure his own personal safety. This is especially true when the inquiry procedure involved constitutes a minimal interference with the rights of the individual, as there was here.
I also take issue with the majority's further holding that the legal predicate (objective credible reason or reasonable suspicion) required to justify the police officers' actions in this case, as found by the courts below, "involves a mixed question of law and fact which is beyond the review powers of this court." ( People v Alexander, 37 N.Y.2d 202.)
While the majority correctly notes that "Judges, too, are expected to follow the law, even when they have played a part in fashioning the rule", this sudden respect for stare decisis appears inconsistent when viewed in light of the fact that the "binding" self-imposed rule espoused by the majority exists today only because of the dramatic departure taken by this court in People v Alexander ( 37 N.Y.2d 202) from the prior rule as it existed for 150 years. (See People v Oden, 36 N.Y.2d 382; People v Ingle, 36 N.Y.2d 413; People v Cantor, 36 N.Y.2d 106; People v Corrado, 22 N.Y.2d 308; Fagnan v Knox, 66 N.Y. 525; Besson v Southard, 10 N.Y. 236; Masten v Deyo, 2 Wend 424; McCormick v Sisson, 7 Cow 715.) Moreover, since this court has never before hesitated to abandon a self-imposed rule when experience has proved that it no longer fulfills the purposes for which it was adopted, there is certainly no valid reason not to do so here where the result would be to merely return to the time-tested rule as it existed before 1975.
This limitation of the court's power to review "mixed questions of law and fact" is self-imposed and, in my opinion, should be reconsidered. I would agree that the determination of the courts below as to the existence of facts and circumstances, the factual inferences to be drawn therefrom, the credibility of witnesses and the weight to be given to the evidence presented are all questions of fact and, consequently, the suppression court's determination concerning these issues, when affirmed by the Appellate Division, is beyond this court's power to review. However, when the facts and circumstances are undisputed or when certain facts and circumstances have been found to exist by the courts below, the issue as to whether on these facts there was an objective credible reason for the police to make an inquiry is a pure question of law, properly reviewable by this court. ( People v Oden, 36 N.Y.2d 382; see, also, People v Ingle, 36 N.Y.2d 413; People v Cantor, 36 N.Y.2d 106; People v Corrado, 22 N.Y.2d 308; Fagnan v Knox, 66 N.Y. 525; Besson v Southard, 10 N.Y. 236; Masten v Deyo, 2 Wend 424; McCormick v Sisson, 7 Cow 715.)
The majority erroneously cites People v Oden ( supra) as support for its conclusion that "probable cause", "reasonable suspicion", "objective credible reason" and similar determinations are beyond the review powers of this court. In that case, we made it abundantly clear that in examining these mixed questions of law and fact "the truth and existence of the facts and circumstances bearing on the issue [is] a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute probable cause [is] a question of law". ( People v Oden, supra, at p 384 [emphasis supplied].) The court reiterated the principles espoused almost without exception, for 150 years. "If the facts and circumstances adduced as proof of probable cause are controverted so that conflicting evidence is to be weighed, if different persons might reasonably draw opposing inferences therefrom, or if the credibility of witnesses is to be passed upon, issues as to the existence or truth of those facts and circumstances are to be passed upon as a question of fact; however, when the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility, or when certain facts and circumstances have been found to exist, the issue as to whether they amount to probable cause is a question of law". ( People v Oden, supra, at p 384 [emphasis supplied].) Finally, in recognizing our powers to review these determinations, we held that: "Under the process outlined and applied herein, had the Criminal Court, grounded on different inferences or dissimilar credibility considerations, properly made other findings of fact indicating additional bases for probable cause and had its order, in turn, been affirmed by the Appellate Term, this court would be required to review as a question of law whether such facts as then found were sufficient to constitute probable cause." ( People v Oden, supra, at p 386 [emphasis supplied].)
Thus, reaching the question of law presented on this appeal, I would hold that the police had a right, based on an objective credible reason, to initiate an inquiry of the driver of the car and request one of the occupants to remain in the car and that such police conduct was justified and reasonable.