This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 49 

The People &c.,

 Respondent,

 v

Stanley Hardee,

 Appellant.

Rachel T. Goldberg, for appellant.

Jessica Olive, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed. 

The issue whether "the likelihood of a weapon in

[defendant’s] car [was] substantial and the danger to the . . .

safety [of the officers who stopped that vehicle was] 'actual and

specific'" (People v Carvey, 89 NY2d 707, 711 [1997], quoting

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People v Torres, 74 NY2d 224, 231 n 4 [1989]) presents a mixed

question of law and fact (see People v Omowale, 18 NY3d 825, 827

[2011]). Here, there is record support for the determination

that those circumstances existed and justified the limited search

of the interior of that vehicle (see People v Mundo, 99 NY2d 55,

57-59 [2002]; see also Omowale, 18 NY3d at 827, affg 83 AD3d 614,

616-617 [1st Dept 2011]). Consequently, defendant's challenge to

the denial of his suppression motion is beyond this Court's

further review (see generally People v McBride, 14 NY3d 440, 448

[2010], cert denied 562 US 931 [2010]). Defendant's remaining

contention is not preserved for appellate review (see CPL 470.05

[2]; People v Hawkins, 11 NY3d 484, 491-493 [2008]). 

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People v Stanley Hardee

No. 49 

STEIN, J.(dissenting):

"[W]here the facts are disputed, where credibility is

at issue or where reasonable minds may differ as to the inference

to be drawn from the established facts, this [C]ourt, absent an

error of law, will not disturb the findings of the Appellate

Division and the suppression court" (People v McRay, 51 NY2d 594,

601 [1980]). Conversely, where the issue presented is whether

the People have demonstrated "the minimum showing necessary" to

establish the legality of police conduct, "a question of law is

presented for [our] review" (id.; see e.g. People v Gonzalez, 25

NY3d 1100, 1101 [2015]). 

Accepting the facts as found by the Appellate Division

and the suppression court, which are not disputed here, the

People failed to adduce the minimum showing required to justify a

protective search of defendant's vehicle -- namely, a substantial

likelihood of the presence of a weapon and an actual and specific

threat to officer safety. I, therefore, disagree with the

majority's conclusion that the question of whether the protective

search was lawful is a mixed question of law and fact reviewable

only for record support, and I would hold that the search of

defendant's vehicle was unlawful.

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I.

Defendant was convicted, upon his guilty plea, of

criminal possession of a weapon in the second degree (see Penal

Law § 265.03 [3]). Prior to his plea, defendant sought

suppression of the firearm found in his vehicle, following a

traffic stop, on the basis that it had been discovered during an

illegal search. 

The following facts were elicited from two police

officers at the suppression hearing. Three police officers

patrolling Lexington Avenue, in Manhattan, observed a grey sedan

traveling approximately 20 miles per hour over the speed limit

and changing lanes without signaling. The officers pursued the

sedan and, when they pulled behind it and activated the lights

and sirens on their vehicle, the sedan immediately pulled over. 

Two officers approached the driver's side of the sedan, while the

third officer approached the front passenger door. 

Defendant was driving the vehicle and his fiancé was

seated in the front passenger seat. Defendant appeared nervous

and he admitted to the officers that there was alcohol in two

cups in the center console. During his interaction with the

officers, defendant appeared "hyper," but there was no other

evidence of drug use or intoxication. In addition to looking

around the vehicle at the officers and at his fiancé, defendant

looked over his shoulder toward the back seat of the vehicle a

few times. The officers requested that defendant exit the

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vehicle; although he initially shook his head and refused, he

peacefully exited the vehicle the second or third time he was

asked. 

Once defendant was outside the vehicle, one of the

officers inquired if defendant had any weapons in his possession

and frisked his person. Although he still appeared nervous,

defendant was cooperative during the frisk, which did not reveal

any weapons. One of the officers then directed defendant to

place his hands in his pockets and walk to the rear bumper of the

vehicle. Defendant complied, with the two officers on his side

of the vehicle accompanying him. While he was standing at the

bumper, defendant looked over his shoulder a couple of times

toward the car, against the officers' directions. The officers

decided to handcuff defendant, and placed one handcuff on him

before defendant allegedly "started resisting" by "tens[ing] up."

Meanwhile, as the two officers escorted defendant to

the rear of the vehicle, the third officer at the passenger door

requested that defendant's fiancé -- who had thus far remained

calm and courteous in the vehicle -- step out of the car, and he

directed her to the rear bumper of the vehicle, as well. After

she complied, the officer returned to the front passenger door,

entered the vehicle with his flashlight, and leaned over into the

back seat compartment to look in a maroon shopping bag located on

the floor. According to the officer, he believed that defendant

had been looking at the bag when defendant had glanced over his

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shoulder while still in the car. The officer picked up the bag,

tugged on the handles to open it, and saw that it contained a

firearm secreted inside a smaller black bag. When he turned to

signal his discovery to his fellow officers, he saw, for the

first time, that the other officers were attempting to handcuff

defendant. The officer left the gun in the car, and helped to

secure defendant. 

Defendant argued that, based on the foregoing facts,

suppression was required because the gun was found during a

warrantless search conducted without probable cause, and there

was no basis for a protective search of the vehicle. In

response, the People asserted that a limited protective search of

the vehicle was justified based on defendant's behavior. Supreme

Court denied suppression of the gun on the ground that the

officers had a reasonable belief that there was a weapon in the

vehicle that presented an actual and specific danger to their

safety. Defendant's subsequent motion for reargument was denied. 

Thereafter, defendant pleaded guilty to criminal possession of a

weapon in the second degree.

Upon defendant's appeal, the Appellate Division

affirmed the judgment of conviction, with one Justice dissenting

(126 AD3d 626 [1st Dept 2015]). The majority held, as relevant

here, that "defendant's actions both inside and outside of the

vehicle created a 'perceptible risk' and supported a reasonable

conclusion that a weapon that posed an actual and specific danger

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to their safety was secreted" in the vehicle (id. at 628, quoting

People v Mundo, 99 NY2d 55, 59 [2002]). The dissenting Justice

disagreed, and would have held that defendant was entitled to

suppression of the weapon because the evidence of his

nervousness, glances into the back seat, and momentary failure to

comply with the officers' directives to exit the vehicle was "not

sufficient to lead to a reasonable conclusion that a weapon

located within the car presented an actual and specific danger to

the officers' safety so as to justify a limited search of the car

after defendant had been removed from the car and frisked without

incident" (id.). The dissenting Justice granted defendant leave

to appeal to this Court.

II.

"[T]he use of a vehicle upon a public way does not

effect a complete surrender of any objectively reasonable,

socially acceptable privacy expectation" (People v Weaver, 12

NY3d 433, 444 [2009]). "A police officer's entry into a

citizen's automobile and his [or her] inspection of personal

effects located within are significant encroachments upon that

citizen's privacy interests" (People v Torres, 74 NY2d 224,

229-230 [1989]). Thus, "such intrusions must be both justified

in their inception and reasonably related in scope and intensity

to the circumstances which rendered their initiation permissible"

(id. at 230; see People v Moore, 6 NY3d 496, 498 [2006]). 

It is settled that, "absent probable cause, it is

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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' safety

has consequently been eliminated" (Mundo, 99 NY2d at 58). An

exception to this rule provides for a limited protective search

of the vehicle for weapons where "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 officers'

safety" (Torres, 74 NY2d at 231 n 4). "[I]n order for there to

be an 'actual and specific' danger, there must be a 'substantial'

'likelihood of a weapon in the car'" (Mundo, 99 NY2d at 61,

quoting People v Carvey, 89 NY2d 707, 711 [1997]). 

We have reviewed the parameters of this exception in

several cases. In People v Torres, the police received a

telephone tip from an anonymous caller indicating that the

defendant, who was wanted on homicide charges, could be found at

a specific location and that he was carrying a weapon in a bag

(74 NY2d at 226). Police officers observed the defendant enter

his car at the location provided by the tip, carrying a nylon

shoulder bag. Officers approached the vehicle, ordered the

defendant and passenger out of the car, frisked them, then

reached into the car to retrieve the shoulder bag; a search of

the bag revealed a firearm and ammunition. We held that the

officer's entry into the vehicle to retrieve the bag was unlawful

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because, at the time of the search, "the suspects had already

been removed from the car" and "patted down without incident"

(id. at 230). In so holding, we rejected the People's reliance

on the theoretical possibility that the suspects may have reentered the vehicle after completion of the stop and threatened

the departing police officers' safety (see generally Michigan v

Long, 463 US 1032, 1051-1052 [1983]). Further, while we

acknowledged that the officers "may have had a reasonable basis

for suspecting the presence of a gun," we observed that, in light

of the suspect's isolation from the interior of the vehicle

during the questioning by the police, "[a]ny residual fear that

the detectives might have had about the suspects' ability to

break away and retrieve the [firearm] could have been eliminated

by taking the far less intrusive step of asking the suspects to

move away from the vicinity of the car" (Torres, 74 NY2d at 230).

Subsequently, in People v Carvey, we upheld as lawful a

limited protective search following a traffic stop where, after

the defendant had been removed from the vehicle and patted down,

it was determined that he was wearing a bulletproof vest (see 89

NY2d at 708). We distinguished Torres by observing that the

bulletproof vest was "uniquely indicative of [the defendant's]

present readiness to use an available firearm," and held that the

vest, "when coupled with the police observation of defendant

furtively placing something beneath his seat, warranted the

conclusion that a weapon located in the vehicle presented an

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actual and specific threat to the officers' safety" (id. at 709).

Although the search in Carvey was determined to be justified

under those circumstances, we explained that the exception

articulated in Torres is a "narrow" one to be applied 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

710-711). We also strongly emphasized that a reasonable

suspicion of the presence of a weapon, alone, "will not suffice,"

underscoring that such suspicion must be coupled with specific

facts indicating an actual threat to officer safety (id. at 711),

and that, otherwise, the general rule that probable cause is

required for such an intrusion applies. 

In People v Mundo, we again reaffirmed the rule in

Torres that probable cause is required for even a limited search

of a vehicle absent an actual and specific threat to officer

safety (see 99 NY2d at 60-61). In that case, when two police

officers attempted to pull over a vehicle in which the defendant

was a passenger, it was necessary for them to give chase three

times before the vehicle fully complied with the directive to

stop (see id. at 57). During the third pursuit, the vehicle

almost struck a pedestrian, and the officers saw the defendant

turn around, face them, and then make furtive movements

indicating that he was secreting something (see id.). After the

vehicle was finally stopped, the occupants were removed and

patted down; one officer pulled down the trunk divider in the

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back seat, where the defendant had been seen hiding something,

and discovered a stash of drugs (see id.). We affirmed the

denial of the defendant's suppression motion only in light of

"[t]he blatant disregard of the officers' directions, [and] the

obvious lack of concern for the safety of others[] [which,] in

addition to defendant's suspicious acts, created a perceptible

risk to the officers that a weapon located within the vehicle

would be a specific danger to their safety" (Mundo, 99 NY2d at

59). Likewise, we found record support for a protective search

in People v Omowale based on the defendant driver's failure to

immediately stop the vehicle, the police officers' observations

of the passenger secreting something in the center console after

he saw them and, significantly, movements by the passenger toward

that same center console (where a handgun was found) as the

police officers approached (see 83 AD3d 614, 617 [1st Dept 2011],

affd 18 NY3d 825 [2011]).

III.

Undoubtedly, when faced with nervousness and furtive

movements or glances, it may be difficult for police officers to

determine whether suspicious behavior is merely ordinary

nervousness related to police encounters, indicates the presence

of a weapon, or suggests the existence of some other contraband

of which defendant fears detection. Given "the reality of the

day, including the risks faced by police officers in street

encounters in the course of discharging their official duties"

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(Torres, 74 NY2d at 231), I do not suggest that the rule

governing protective searches requires that a suspect actually

retrieve or attempt to retrieve a weapon before an officer's fear

of an actual and specific threat will be deemed justified. 

Nevertheless, to justify a protective search, our precedent

requires a demonstration of some objective facts that support a

belief that the defendant or other occupants of the vehicle

present a danger to officer safety because they may access a

weapon in the vehicle. Indeed, this critical element is the very

basis for allowing a warrantless protective search without

probable cause, and its absence here is clearly illustrated by a

comparison of the facts of this case with those presented in

Carvey, Mundo, and Omowale. 

In Carvey, the bulletproof vest, combined with the

defendant's act of furtively placing something under his seat --

which implied that the gun was previously held at ready -- was

sufficient to justify the protective search because it suggested

"more than the presence of a deadly weapon -- it demonstrate[d]

[the defendant's] readiness and willingness to use a deadly

weapon" (89 NY2d at 712). In Mundo, the failure of the driver to

stop the vehicle and the repeated attempts to evade the police,

which resulted in a near collision with a pedestrian,

demonstrated a willingness to endanger the safety of others (see

99 NY2d at 57). Taken together with the defendant's furtive

movements of secreting an object in the back seat -- which again

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indicated that the hidden item had been held at the ready -- we

upheld the denial of the defendant's suppression motion, based on

the officers' objectively reasonable concern that any weapon in

the vehicle presented an actual and specific safety threat to

them (see id. at 59). Finally, in Omowale, the defendant's

failure to stop the vehicle, coupled with the passenger's

movements of secreting an object in the center console upon

seeing the police and act of moving towards that same spot as the

officers approached -- a movement that would make little sense

had some other type of contraband been hidden away -- provided a

reasonable basis for the protective search (18 NY3d at 825).

Here, by contrast, no facts elicited at the hearing

established that, at the time of the search, defendant had

displayed any behavior that would give rise to a belief that a

weapon located in the vehicle presented an actual and specific

danger to the safety of the officers. Thus, this case is

indistinguishable from Torres, where the officers may reasonably

have suspected the presence of a weapon, but there were no facts

indicating an actual and specific threat to their safety once

defendant was outside the vehicle, frisked, and moved away from

the interior of the car (74 NY2d at 227). That is, even assuming

that there was a reasonable basis to believe that there was a

weapon in the car -- a factor which I do not concede is satisfied

here -- there is no record support for a finding that a

protective search was justified. 

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Defendant did not evade the police vehicle and

immediately complied with the officers' signals to pull over

(compare Omowale, 18 NY3d at 825; Mundo, 99 NY2d at 58). We have

previously cautioned, in the context of the narrow exception

allowing for warrantless protective searches, that "[a] motorist

who exceeds the speed limit does not thereby indicate any

propensity for violence or iniquity, and the officer who stops

the speeder has not even the slightest cause for thinking that he

is in danger of being assaulted" (People v Marsh, 20 NY2d 98, 101

[1967]). Here, there was no testimony that defendant's manner of

driving was unusual for a major four-lane avenue in Manhattan, or

that any specific pedestrians or motorists were endangered

thereby (compare Mundo, 99 NY2d at 59). In any event, to the

extent that defendant's driving exhibited a disregard for the

safety of others in the abstract and was sufficient to justify a

traffic stop, such conduct did not justify a belief that the

presence of a weapon posed an actual and specific threat to

officer safety. It, therefore, did not provide a lawful

predicate for a protective search.

Nor was defendant's nervousness sufficient to justify a

protective search (cf. People v Garcia, 20 NY3d 317, 320 [2012];

People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868

[1995]). Significantly, defendant did not move towards the back

seat to secrete an object, or move towards the bag or any other

area of the vehicle to retrieve anything, either before or after

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the officers approached (compare Omowale 18 NY3d at 825; Mundo,

99 NY2d at 57; Carvey, 89 NY2d at 709-710). In fact, the

officers conceded that defendant was honest about having alcohol

in the vehicle and made no attempt to hide it. Although he

briefly refused to exit the vehicle, he apparently did so without

hostility and he then peacefully complied with that directive, as

well as with the subsequent frisk and the officers' request that

he move to the rear bumper of the vehicle. It cannot reasonably

be disputed that, up to that point, none of defendant's behavior

provided an objective basis for a reasonable belief that a weapon

located in the vehicle from which defendant had been isolated

presented an "actual and specific danger to the officers' safety"

(Torres, 74 NY2d at 231 n 4) and, therefore, no search was

justified.

Finally, defendant's subsequent resistance to being

handcuffed at the rear bumper of the vehicle cannot be used to

justify the protective search because the officer who conducted

the search was admittedly unaware of any such resistance when he

began the search. It is beyond cavil that a search must be

justified at the time it is commenced (see Torres, 74 NY2d at

230), and "[d]efendant's later conduct cannot validate an

encounter that was not justified at its inception" (Moore, 6 NY3d

at 498). Accordingly, as in Torres, the appropriate action to

address any residual fear experienced by the officers would have

been "the far less intrusive step of asking [defendant] to move

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[further] away from the vicinity of the car," not a search of the

vehicle after both of its occupants had already been removed, and

defendant had been patted down, without incident (74 NY2d at

230).

IV.

In short, the majority ignores the distinction we have

always drawn between Torres and those cases in which we have

upheld protective searches -- namely, the requirement of an

actual and specific threat to officer safety from a weapon

located in the vehicle. Furthermore, the majority's ruling

disregards the narrowness of the warrant exception as articulated

in, and demonstrated by, our prior case law, and it unduly

broadens the exception for a protective search beyond its purpose

and rationale. In the absence of any record facts supporting the

majority's conclusion that there was a substantial likelihood of

a weapon in the vehicle that presented an actual and specific

threat to the officers, Torres controls and the firearm should

have been suppressed (see 74 NY2d at 230). I, therefore,

dissent.

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Chief Judge DiFiore and Judges

Fahey, Garcia and Feinman concur. Judge Stein dissents in an

opinion, in which Judges Rivera and Wilson concur.

Decided November 16, 2017

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