Opinion
2400/07.
Decided April 9, 2008.
Artie McConnell, Esq., Assistant District Attorney New York County District Attorney's Office, One Hogan Place, New York, New York, for the People.
Evans D. Prieston, Esq., Rego Park, New York, for the Defendant.
Defendant Omar Tariff was a passenger in a livery cab which made a left turn off the West Side Highway onto 42nd Street. The cab was in a left turn only lane, and the driver was required to turn left. The driver made the left turn, but did not signal, and the police stopped the cab for failing to signal. The police officers who pulled the cab over were assigned to a division of Manhattan South, with the responsibility to investigate felony crimes. Based on this evidence, the People concede that the stop was a "pretext" stop. The cab driver received a "warning." Defendant, however, who, according to the police was looking back and appeared nervous, was removed from the car, searched and arrested for possession of a bag of heroin found in his pants pocket. Defendant moves to suppress the heroin. For the reasons set forth below, the motion is granted.
FINDINGS OF FACT
I heard from a single witness, Police Officer William Massi. My credibility findings are explained below.
I find that on May 10, 2007, Police Officer Massi was assigned to anti-crime patrol in the vicinity of Manhattan South. He was working with Lieutenant Harris, patrolling in an unmarked police car. His assignment was "street-level buys" and "felonies." At approximately 9 o'clock p.m., Officer Massi was traveling southbound on the West Side Highway near 42nd Street behind a livery cab. There was nothing unusual or suspicious about the cab. Officer Massi observed the cab, in one of the "left turn only" lanes, make a left turn in an eastbound direction. The lane that the cab was in required the driver to turn left, and the driver made the turn without signaling. The officers followed the cab and eventually pulled it over on 42nd Street near 9th Avenue.
Officer Massi approached on the passenger side. Lieutenant Harris approached on the driver's side. Officer Massi had his flashlight in his hand and observed the back passenger looking back and forth. On direct examination Officer Massi described what he observed as follows:
No testimony was elicited concerning Lieutenant Harris' interaction, if any, with the driver.
A. I . . . observed the back passenger looking back and forth. Then, I observed the back passenger make a motion to his right, lifting up the left side of his body. I saw his arm doing something. I saw his left arm moving.
Q. How was his left arm moving?
A. His shoulder was raised up, it was moving up or down. . . . Just a motion with the left shoulder. That's all. I couldn't see the hand; I could see the shoulder. [HT p. 9]
* * * *
Q. You said that you saw some movement from the defendant. . . . As you approached the car, what, if anything, did you see the defendant doing in the back?
A. I just noticed the movement with the shoulder, up and down movement with the shoulder.
Q. Was he doing anything with his head?
A. Looking from the left to the right; looked over the shoulder; and back to us.
[HT pp. 10-11].
When Officer Massi demonstrated the movement of the shoulder, however, it was the natural, slight movement of the shoulder that automatically occurs as one is looking back over one's shoulder. Officer Massi testified that the movement was "an inch or two." [HT p. 19]
Officer Massi testified that he was "concerned about what was going on; the left side of this body, what the movement was for," so he asked the defendant to roll down the window, which defendant did. Officer Massi had his flashlight in his hand and he focused it on defendant's hands and waist area. He did not see any weapon. Officer Massi asked the defendant where he was "headed." Defendant appeared nervous to him. He could see defendant's hands trembling, defendant was breathing heavily and talking "very fast."
Although Officer Massi testified that defendant's action of looking back and moving his shoulder and the movement of the shoulder made him think defendant might have a weapon, he saw nothing else that made him suspicious as he approached the car, and he observed nothing else that made him believe defendant had a weapon:
Q: You didn't see any kind of movement as though someone was getting a weapon?
A: Not when I was standing next to the car, no.
Q: You didn't see anything suspicious about anybody doing anything, either the driver or the passenger, correct?
A: No.
[HT. p. 21]
* * * *
Q: You didn't see a weapon?
A: No.
Q: Nothing that looked like drugs?
A: No.
Q: You didn't see any manner [sic] that made you feel less safe?
A: No.
[HT. p. 25].
Officer Massi asked the defendant to step out of the vehicle and put his hands on the roof of the car. Defendant complied. Lieutenant Harris came around to defendant's left. Officer Massi moved over to defendant's right and frisked the right side of his body. Officer Massi then moved to the left to frisk defendant's left side, but defendant turned his body a little towards Officer Massi, pressing the left side of his body against the car. This dance was repeated two more times, but eventually Officer Massi put his hand into defendant's left pants pocket and recovered a bag of what appeared to be heroin. Defendant stated: "It's just coke."
The police arrested defendant. No citation was given to the cab driver.
CONCLUSIONS OF LAW
This was, as the People concede, a "pretext" stop. That is, these anti-crime officers were not looking to give out traffic citations, but instead hoping to find evidence of a felony. Since the Court of Appeals decided People v. Robinson, 97 NY2d 341 (2001), adopting Whren v. United States, 517 U.S. 806 (1996), as a matter of state law, pretext stops are permissible. As the Court of Appeals held in Robinson:
[W]here a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, § 12 of the New York State Constitution. In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant.
I credit Officer Massi's testimony that the cab failed to signal once in the left turn lane before making the turn. Section 1163(a) the Vehicle and Traffic Law requires that "No person shall . . . turn any vehicle without giving an appropriate signal. . . ." The signal has to be "given continuously during not less than the last one hundred feet traveled by the vehicle before turning." VTL § 1163(b). I recognize that the cab was in a left turn only lane and that this in itself was a clear indication that the cab was going to turn left. The "appropriate signal" referred to in this subsection, however, is specifically delineated in VTL § 1164 and requires either signal by hand and arm or signal lamp. I can find no exception. Thus, it appears that the cab in which defendant was a passenger committed a violation of the Vehicle and Traffic Law, albeit purely a technical one. The stop was therefore legal.
That a pretext stop is legal, however, does not end the inquiry. As the Court of Appeals held in Robinson, "The scope, duration and intensity of the seizure, as well as any search made by the police subsequent to that stop, remain subject to the strictures of article I, § 12, and judicial review [citations omitted]." Robinson, 97 NY2d at 353.
A traffic stop is a limited seizure of all of the individuals in the automobile. People v. May, 81 NY2d 725, 727 (1992). Any inquiry into the propriety of the police conduct at issue must weigh the degree of intrusion against the precipitating and attendant circumstances of the encounter. People v. Salaman, 71 NY2d 869, 870 (1988); People v. DeBour, 40 NY2d 210, 222 (1976). The inquiry must focus on whether the police conduct was reasonable in view of the totality of circumstances. People v. Batista, 88 NY2d 650, 653-654 (1996); People v. McLauren, 70 NY2d 779, 781 (1987).
The People ask me, in essence, to look at this case the way I would look at a "rapidly escalating" street encounter where each of the defendant's actions justify the next level of intrusion, culminating in probable cause to arrest and search. See e.g. People v. Sierra, 190 AD2d 202 (1st Dept. 1993), aff'd 83 NY2d 928 (1994). Under this analysis, the police had the right to stop the car. Once the car was stopped, defendant's movement of his shoulders was sufficiently alarming to permit Officer Massi to focus his flashlight on defendant and inquire where he was heading. When defendant appeared nervous, the officer then had the right to remove defendant from the police car, place his hands on the car and frisk him. When defendant continued to shift his body in a manner to prevent the police from going into his pocket, this gave the officer the right to reach into the pocket and remove the drugs.
Of course a police officer can always ask a passenger or driver to step out of a car following a traffic stop and have him keep his hands in view. See People v. Sass, 217 AD2d 428 (1st Dept. 1995), appeal denied 87 NY2d 907.
While this analysis has a superficial logic to it, I cannot accept it. Not, that is, if the Fourth and Fourteenth Amendments really protects the "right of the people to be secure in their persons . . . against unreasonable searches and seizures. . . ." I recognize, of course, that police officers face a serious risk in any car stop, including those stops made because of a traffic infraction. Pennsylvania v. Mimms, 434 US 106, 110 (1977); People v. Robinson, 74 NY2d 773, 774 (1989). But this does not mean, particularly in a pretext stop case, that we can rely entirely on a police officer's subjective characterizations of defendant's actions, as opposed to the objective, credible reasons that courts have always required.
While I recognize the inherent danger in all traffic stop situations, I note that this was not a lone police officer stopping a speeding car on a deserted highway. These were two police officers who engineered a carefully controlled stop of a livery cab, pulling it over three blocks from the scene of the infraction as the cab approached one of the more populated areas in Manhattan.
Although Whren and Robinson permit pretext stops, we cannot lose sight of what is really happening here. These are anti-crime police officers trying to make a felony arrest. They stop a livery cab for the most insignificant, technical traffic infraction. The only way they can make a felony arrest is either by observing contraband in plain view, or by observing "furtive" or "threatening" gestures or some reaction by the car's occupants that would permit a frisk and ultimate search. The temptation to view even innocuous gestures as "threatening" or "furtive" under these circumstances is high. And that, I find is just what happened.
Officer Massi, who has apparently never been assigned to a traffic detail, testified that he has made 200 arrests of which 100 were a result of car stops.
This is not a case where an officer observed a bulge that would lead him to believe that the defendant was armed [ compare People v. Rosario, 245 AD2d 470 (2d Dept 1997), appeal denied 91 NY2d 940; People v. Taveras, 207 AD2d 306 (1st Dept 1994), appeal denied 84 NY2d 940]. The officer did not see anything alarming or threatening inside the car when he shined his flashlight inside, nor did he see defendant kick anything away [ compare People v. Alston, 195 AD2d 396, 397 (1st Dept 1993)]. He did not observe any bags or boxes inside the car where a gun could be hidden [ compare People v. Peart, 283 AD2d 14 (1st Dept 2001), lv dismissed 96 NY2d 939)]. There was no testimony the area was a deserted area known for robberies of livery cab drivers [ see People v. Otero, 255 AD2d 158 (1st Dept 1998), lv denied 92 NY2d 1052)] or that the car driver had indicated that he was in any distress [ People v. Damaceno, 214 AD2d 464 (1st Dept 1995), appeal denied 86 NY2d 734]. Nor did Officer Massi testify that he felt threatened by having observed something that may have been a weapon [ see People v. DeBour, 40 NY2d at 223; People v. Graham , 41 AD3d 119 (1st Dept 2007), lv denied 9 NY3d 865; People v. Laws, 208 AD2d 317, 322-23 (1st Dept 1995)].
The "evidence" that supports the frisk in this case rests solely on the officer's subjective interpretation of defendant's conduct much of which was objectively normal and non-threatening. When the police stop a car, the normal, expected reaction of the passenger would be to look back over his shoulder to see what was happening. The action of looking back would naturally cause the defendant's shoulder to move up and down in exactly the way Officer Massi demonstrated during his testimony. No objective observer would view this as alarming. When the officer told defendant to roll down his window, shined his flashlight on defendant and asked where defendant was headed, even an innocent person might show signs of anxiety. Any citizen stopped at night, for what may have appeared to be no apparent reason, might appear nervous. See People v. Barreras, 253 AD2d 369, 373 (1st Dept 1998) (noting that extreme nervousness not unusual under circumstances of being stopped at night in car by police late at night). Nervousness and an innocuous shoulder movement are insufficient, by themselves, to warrant a frisk for a weapon. People v. Banks, 85 NY2d 558, 562 (1995), People v. Barreras, 253 AD2d 369, 373, supra; cf. People v. Miller, 121 AD2d 335, 338 (1st Dept 1986), appeal denied 68 NY2d 815, citing People v. DeBour, 40 NY2d 210, 216 (1976) ("Behavior which is susceptible of innocent as well as guilty interpretation cannot constitute probable cause and innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand [citations omitted].'") I thus cannot find that the officer's stated perception of defendant's "trembling," "heavy breathing" or "talking fast" particularly in light of his perception of the innocuous shoulder movement as threatening gave the police the right to do more than remove him from the car and ask him to keep his hands visible. See People v. Sass, 217 AD2d 428, supra.
Among the many ironies in this case is that a passenger, even one with contraband in his pocket, would have no reason to be nervous if he were confident that the police would respect his constitutional rights. Only were he to believe that the police would take him out and search him for no reason would he have any reason to be nervous.
Thus, while the police had, as they always do in a traffic stop, the right to remove a passenger from the car, they had no right, absent an objective reason to fear for their safety, to make defendant put his hands against the car and frisk him.
Were I to find that defendant was properly placed against the car for a frisk, I would agree with the People that defendant's movements subsequent to being placed on the car that is, moving his body three times to prevent the frisk of his right pocket would most likely give the police the right to go into the pocket. That is irrelevant in light of my holding here.
There are several factors that, in my view, combine to make the stop and search in this case particularly disturbing. The first is that the pretext for the stop if it is appropriate to rate pretexts is thin, even when compared with other possible pretexts. The thinner the pretext for the stop, the more likely it is that the police can find multiple possible vehicles to stop. The greater the number of vehicles available to stop, the more discretion is vested in the police as to which vehicle to stop and the greater the possibility of unregulated, discriminatory enforcement. This is precisely the danger addressed by the extensive body of law that has developed in roadblock cases, where rules have been developed to minimize the possibility of discriminatory enforcement. See e.g. People v. Jackson, 99 NY2d 125 (2002); People v. Mohammad F., 94 NY2d 136 (1999); People v. John B.B., 556 NY2d 482 (1982). The second factor is that since it is the driver of the cab who commits the infraction, and the object of the police attention is the passenger, there is no correlation at all between the act that causes the stop and the object of the search. This means that, leaving aside considerations of fairness (that most likely don't have any legal relevance), the passenger who has done nothing to warrant the stop will almost always be looking back to figure out why the car was stopped and will almost never know the reason that the police are shining the flashlight at him and asking him questions about where he is headed. This makes the situation both inherently frightening and more intrusive for the passenger, and will almost always generate some type of reaction. Finally, if we rely solely on the subjective observations of the police to evaluate the passenger's reactions, we remove the possibility of effective judicial review, exactly where it would appear we need it most.
I realize that this is not a proper subject for judicial notice, but I was surprised to learn that you had to keep your signal on once you were in a lane that required you to turn left. So, I've been watching drivers positioned in these lanes as I drove down the West Side Highway. While most drivers do signal, it is fair to say that finding several who don't at any given time would not take a first grade detective.
Defendant's motion to suppress physical evidence and the subsequent statement is granted. This opinion constitutes the decision and order of the Court.