People v. Carvey

• Decision Date: 01 May 1997
• Citation: 657 N.Y.S.2d 879,89 N.Y.2d 707,680 N.E.2d 150
• Parties: , 680 N.E.2d 150, 65 USLW 2775 The PEOPLE of the State of New York, Respondent, v. James CARVEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 879

657 N.Y.S.2d 879

89 N.Y.2d 707, 680 N.E.2d 150, 65 USLW 2775

The PEOPLE of the State of New York, Respondent, v. James CARVEY, Appellant.

Court of Appeals of New York.

May 1, 1997.

Rosemary Herbert and Richard M. Greenberg, New York City, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Deirdre Waldron Power and Mark Dwyer, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

Defendant, a passenger in an automobile stopped for a traffic infraction, was arrested when the police discovered a gun under his seat. Defendant challenges the legality of the search that took place after he and the other occupants were removed from the vehicle. We are thus called upon once again to determine whether information acquired by the police during the course of a traffic stop justified further intrusion into the interior of an automobile.

We agree with the courts below that the police action here was proper. Defendant was wearing an article uniquely indicative of his present readiness to use an available firearm--a bulletproof vest. This salient fact, 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 actual and specific threat to the officers' safety. In these particular circumstances, the officers could lawfully reach into the vehicle, even after removing the driver and passengers.

Facts

At 1:20 A.M. on July 29, 1992, Police Officer Mucciariello stopped a white Cadillac with four occupants at Ninth Avenue and 26th Street in Manhattan, because it had no rear license plate. He approached the driver's side and asked for her license, registration and insurance card. When the driver was unable to present any paperwork, the officer returned to his patrol car to prepare a summons.

At that time, Police Officers Dalton and Mascaro arrived at the scene. Knowing that Mucciariello was alone, they exited their vehicle to determine whether he needed back-up. As Dalton approached the Cadillac on the passenger side, he noticed defendant, in the rear passenger seat, bend down and place something under the seat with his right hand. He also observed that defendant was wearing a bulletproof vest under his sweatshirt. Dalton was able to identify the vest because he had worn one himself for the past 11 years.

All four individuals were removed from the car. Dalton patted defendant down and, finding nothing, handed him to Mascaro. Dalton then reached into the car, under the rear passenger seat, and recovered a gun from the spot where defendant had been seated. Defendant and the others were arrested and taken to the precinct. After being advised of his constitutional rights, defendant made oral and written statements.

Defendant moved to suppress the weapon and statements as fruits of an unconstitutional search. After crediting Dalton's testimony concerning his observations that evening, the suppression court found that the officers had lawfully stopped the automobile and ordered the occupants out of the car, and that Dalton's act of reaching into the car was justified. The court thus denied the motion to suppress, and defendant ultimately pleaded guilty to attempted criminal possession of a weapon in the third degree. The Appellate Division, with one Justice dissenting, agreed with the suppression court and affirmed, as do we.

Discussion

As an initial matter, the Cadillac was lawfully stopped upon Officer Mucciariello's observation that it was missing a rear license plate (see, People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39). It was, moreover, proper to direct the driver and passengers to exit the detained vehicle (see, People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376). The more difficult question is whether, once defendant and the other occupants had been removed from the automobile, the police could lawfully commit the greater intrusion of reaching into the vehicle.

In People v. Torres, 74 N.Y.2d 224, 226, 544 N.Y.S.2d 796, 543 N.E.2d 61, the Court explained that "[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm." Consequently, we held that, absent probable cause, it is unlawful for a police officer to invade the interior of a stopped car once the suspects have been removed and patted down without incident and any immediate threat to safety thereby eliminated. In doing so, we rejected the conclusion of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, that such an intrusion "could be justified purely on the theoretical basis * * * that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle" (74 N.Y.2d at 231, n. 4, 544 N.Y.S.2d 796, 543 N.E.2d 61 [emphasis in original] ).

The Court articulated in Torres, however, a narrow exception to this rule. After clarifying that we did not mean our holding "to suggest that the degree of probable cause outlined in People v. Belton, 55 N.Y.2d 49, 55, 447 N.Y.S.2d 873, 432 N.E.2d 745, is always required as a predicate for conducting a limited intrusion and search of the passenger compartment of the suspect's car," we explained:

"Indeed, 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 at 231, n. 4, 544 N.Y.S.2d 796, 543 N.E.2d 61.)

Notwithstanding this acknowledgment that a further intrusion might be justified even in the absence of probable cause, we made clear that the likelihood of a weapon in the car must be substantial and the danger to the officer's safety "actual and specific." We emphasized, moreover, that a reasonable suspicion alone will not suffice. Indeed, in Torres itself the police received an anonymous tip that a man wanted on homicide charges could be found at a particular barber shop, driving a black Eldorado...