January 25, 2013
PEOPLE V. GARCIA 2012 Slip Op 08670 (12-18-12)
The
New York Court of Appeals has rendered a decision which explicitly protects the
privacy interests of citizens who are travelling in an automobile. Citing the analysis found in the seminal cases,
which address warrantless police/citizen street encounters (People v. DeBour,
40 NY 2d 210 (1976), People v. Hollman, 79 NY 2d 181 (1992)), the Court
concluded, “the standards of DeBour and Hollman govern police-citizen
encounters during lawful traffic stops”.
In Garcia, officers observed
a broken taillight on the car which Mr. Garcia was driving. As they approached the properly stopped
vehicle, officers observed that three male passengers in the rear seat “stiffened”,
“acted nervous” and “made furtive movements”.
Upon reaching the driver the officers requested and the driver promptly
produced a valid license and registration. At that point it would have been
constitutionally permissible for the officers to order the occupants to step
out of the vehicle (People v. Robinson, 74 NY 2d 773 (1989), Pennsylvania
v. Mimms, 434 U.S. 106 (1977). Instead, Officer Cleri inquired if anyone in
the car was in possession of a weapon.
When a passenger in the rear seat admitted to holding a knife, all
passengers were removed from the car and searched. Supreme Court denied Garcia’s motion to
suppress, the Appellate Division First Department reversed, and the Court of
Appeals took this opportunity to address the specific question of whether an
officer’s inquiry of an inhabitant of a vehicle is subject to the rule set down
in DeBour and Hollman.
Mr.
DeBour was walking on the streets of Brooklyn just after midnight when two
officers on patrol saw him. DeBour
crossed the street moving away from the police and this triggered
suspicion. When he was stopped DeBour
was asked for identification (which he did not produce) and he was told to
unzip his jacket. When he complied, the
butt of a gun was seen protruding from his waistline and he was arrested. It was in this case that the Court of Appeals
established its four level framework whereby an officer’s warrantless encounter
will be analyzed to determine if the intrusion is consistent with an attending
level of suspicion.
Police
Officers are always permitted to approach
citizens on the street to request
information not necessarily indicative of criminality. In this least intrusive encounter, police can
ask for identification and are generally
permitted to attempt to gain information
consistent with their duties as public safety officials. (i.e. looking for lost
children or a missing pet. (Level
1) A level two intrusion, a common law
right to inquire, permits law enforcement to momentarily detain an individual
to ask questions which are indicative that the citizen may be involved in some
wrongdoing. In order for this type of
inquiry to be constitutionally proper, the officer must be able to articulate
objective facts, which would lead a judge to believe that criminal activity is
afoot. When an officer has reasonable
cause to believe that an individual has committed a crime, he is permitted to
temporarily detain that person. To
insure officer safety, a pat down is also permitted. (Level 3) If there is probable cause to believe that an
individual has committed a crime, seizure, in the form of an arrest is
permitted. Incident to a lawful arrest
an individual and any containers in his immediate grabbable area are subject to
a full search.
But how does this analysis apply to an individual
who is not stopped on the street, but is approached by law enforcement agents while
seated in a vehicle? Hollman (and
its companion case People v. Saunders), examined the propriety of an
officer’s inquiry of passengers seated on a bus parked at the Port
Authority. The court distinguished
between questions which were not indicative of criminality (“Did you pack any
bags?”) and those, which were clearly more investigative in nature. (“Can I
search your bag?”) In reaffirming the framework established in
DeBour, the Court of Appeals concluded, “The defendant's behavior, while it may
have provided the officer with adequate basis for an approach for a few general, nonaccusatory questions,
was certainly not so suspicious as to warrant the further intrusion of a
request to rummage through the defendant's luggage.” People v. Hollman,
79 N.Y.2d 181, 194, 590 N.E.2d 204, 211 (1992)
In
Garcia, the State argued that the officer safety issue addressed in Robinson
supported the proposition that an officer should be permitted to ask
accusatory, intrusive question even when no evidence of criminality is
present. The Court disagreed. Citing an
interest in promoting an even handed application of the DeBour framework to
both street and vehicle encounters the court concluded, “whether the
individual questioned is a pedestrian or an occupant of a vehicle, a police
officer who asks a private citizen if he or she is in possession of a weapon
must have a founded suspicion that criminality is afoot.”
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