People v. Forbes

• Decision Date: 26 March 2001
• Docket Number: No. 269,269
• Parties: (A.D. 2 Dept. 2001) The People, etc., respondent, v. Farquan Forbes, a/k/a Michael Forbes, appellant. (Ind./99) 2000-02335 : SECOND JUDICIAL DEPARTMENT Argued-
• Court: New York Supreme Court — Appellate Division

Page 64

728 N.Y.S.2d 64 (A.D. 2 Dept. 2001)

The People, etc., respondent, v. Farquan Forbes, a/k/a Michael Forbes, appellant (Ind. No. 269/99)

2000-02335

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued-March 26, 2001

July 2, 2001

APPEAL by the defendant from a judgment of the Supreme Court (Leonard P. Rienzi, J.), rendered March 6, 2000, in Richmond County, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.

William L. Murphy, District Attorney, Staten Island, N.Y. (Jonathan J. Silbermann and Gary R. DeFilipo of counsel), for respondent.

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, SONDRA MILLER, SANDRA J. FEUERSTEIN, JJ.

FEUERSTEIN, J.

On this appeal we are called upon to determine whether the police, pursuant to a lawful traffic stop, may constitutionally require the driver of the vehicle and all passengers to remain in the vehicle until the traffic stop is concluded. We hold that, upon weighing the minimal degree of the intrusion upon the passengers' liberty against the significant safety concerns of the investigating officers, it is permissible to require the passengers to remain in the stopped vehicle.

I

On September 25, 1999, Police Officer Raymond Pepitone and Sergeant Michael Carbonara were patrolling the area of Vanderbilt and Osgood Avenues on Staten Island, which was known to be a locale with an unusually high volume of narcotics-related arrests. At approximately 2:30 A.M., Pepitone observed a gray four-door Nissan Maxima with a clear plastic cover over the license plate and tinted windows, both of which constituted Vehicle and Traffic Law violations. Pepitone and Carbonara decided to stop the vehicle. After the vehicle had pulled over, Pepitone and Carbonara exited the patrol car and approached the Nissan. Pepitone was on the driver's side and Carbonara was on the passenger side. Pepitone asked the driver for his license, registration, and insurance card and informed him of the reason for the stop. Pepitone recognized the driver as a man named "Jackson" who had been arrested a few years earlier. As Pepitone was asking for the driver's information, the defendant, who was in the passenger seat, attempted to exit the vehicle. Carbonara told the defendant to stay in the car until the car stop was over and closed the passenger door for the defendant. The defendant then placed his hands on the dashboard of the car. When asked why he was doing that, the defendant stated that he didn't want to get shot. The officers then took the driver's information and returned to their patrol car to check for suspensions and revocations.

At this point, both officers heard the familiar sound of a semi-automatic handgun being "racked", meaning that the top slide of the gun was pulled back and a round of ammunition pushed into the chamber. The officers were familiar with this sound because they both carried 9-millimeter handguns and had heard the "racking of the slide" many times before. The sound was so distinctive that both officers looked up simultaneously. The officers, realizing that they could have a dangerous situation at hand, discussed a plan to re-approach the vehicle to frisk the occupants. Pepitone once again approached on the driver's side and Carbonara approached on the passenger side. Just as Carbonara got to the passenger side door, the defendant exited the vehicle. The defendant stated that he wanted to go to the store, and Carbonara said that he could do so only after Carbonara checked him for weapons. The defendant resisted a search of the front of his waistband but as Carbonara grabbed the bottom of the defendant's shirt he saw the butt of a handgun. Carbonara yelled to Pepitone, "He's got a Glock". The defendant then said, "It's not a Glock". Carbonara pushed the defendant away and pulled out his weapon. Pepitone pushed the defendant to the ground and Carbonara retrieved the gun which had fallen down the defendant's pants. The defendant was then placed under arrest. A subsequent search of the Nissan uncovered a 9-millimeter round of ammunition.

The defendant was charged with criminal possession of weapon in the third degree and resisting arrest. He moved to suppress the evidence recovered from him based upon his assertion that Officer Carbonara's refusal to let him leave the scene was a violation of his constitutional rights. The Supreme Court denied suppression, and the defendant pleaded guilty to criminal possession of a weapon in the third degree with specific reservation of his right to appeal the suppression ruling.

II

The law is settled that upon making a valid stop of a motor vehicle for a traffic violation, the police may order the driver and all passengers out of the vehicle until the stop is concluded (see, Maryland v Wilson, 519 U.S. 408; Pennsylvania v Mimms, 434 U.S. 106; People v Robinson, 74 N.Y.2d 773, 774, cert denied 493 U.S. 966; New York v Class, 475 U.S. 106, 115 [out of a concern for safety, "officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon"]). This is based upon the conclusion that the legitimate safety concerns of the officers conducting the traffic stop outweigh the de minimis intrusion to the passengers' liberty (see, Maryland v Wilson, supra, at 412). Both the United States Supreme Court and the New York Court of Appeals have recognized the potentially dangerous situation police officers encounter in conducting traffic stops and that the danger is increased by the presence of more than one occupant of the vehicle (see, Maryland v Wilson, supra, at 413; People v Robinson, supra, at 775). Further, the Supreme Court has noted that "[t]he risk of harm to both police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation" (Maryland v Wilson, supra, at 414, quoting Michigan v Summers, 452 U.S. 692).

While the United States Supreme Court and the Court of Appeals have not addressed the precise issue presented here, whether officers can force a passenger to remain in a lawfully stopped vehicle until the investigation is concluded, other courts...