People v. Harrison

• Decision Date: 18 November 1982
• Citation: 457 N.Y.S.2d 199,57 N.Y.2d 470,443 N.E.2d 447
• Parties: , 443 N.E.2d 447 The PEOPLE of the State of New York, Appellant, v. Nathaniel HARRISON and Kevin Cabey, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 199

457 N.Y.S.2d 199

57 N.Y.2d 470, 443 N.E.2d 447

The PEOPLE of the State of New York, Appellant, v. Nathaniel HARRISON and Kevin Cabey, Respondents.

Court of Appeals of New York.

Nov. 18, 1982.

John J. Santucci, Dist. Atty., Kew Gardens (Michael J. Connolly, Kew Gardens, of counsel), for appellant.

Jack L. Schiller, New York City, for Nathaniel Harrison, respondent.

OPINION OF THE COURT

WACHTLER, Judge.

Two related search and seizure questions are presented by this appeal. First, whether the use of a dirty rental car in the City of New York establishes reasonable suspicion, as a matter of law, that the occupants are engaged in criminal activity. Second, whether the police officers' actions in approaching the parked car, asking the driver for his license and registration and further ordering the three occupants to remain in the vehicle constituted such a minor intrusion on constitutional rights that the police may do so absent reasonable suspicion. The trial court held for the defendants on both points and suppressed the evidence seized from the car. The Appellate Division affirmed, 83 A.D.2d 965, 443 N.Y.S.2d 75, with one dissent. The prosecutor appeals.

On January 4, 1979 two New York City police officers, Stahl and Dillon, were on patrol in an unmarked car in Queens County. Dillon was driving and Stahl was acting as "recorder" in the passenger seat. Both officers were in plain clothes. At approximately 1 a.m. Officer Stahl, the only witness for the prosecution to testify at the hearing, observed a 1978 Chrysler Cordoba carrying three black men pass in the right lane. The officer could tell from the license plate that it was a rental car, and noted that it was extremely dirty. The police followed the car for three to five blocks until it parked near an open bar. Officer Stahl told his partner to pull up next to the car, and then park behind it. The officer conceded at the hearing that up to that point he had not observed the defendants violate any law and that his interest was aroused solely by the fact that the men were riding in a dirty rental car. ¹ After parking behind the defendants the officers left their car and walked toward the other vehicle. As Officer Stahl approached he noticed that it was a two-door sedan; that the defendant Cabey was in the driver's seat; that another man, Gilbert Williams, was sitting in a slumped position in the rear seat; and that the defendant Harrison had opened the door and was proceeding to get out of the car. Stahl immediately told Harrison to get back in the car. He also told Williams to sit up. Both men complied with these directions. Officer Dillon then stationed himself beside the passenger door while Stahl crossed to the driver's side, identified himself as a police officer and told Cabey to produce his license and registration.

Cabey told the officer that he did not have his license and that Harrison had the registration papers. While Harrison looked for those papers Officer Stahl returned to the police car and checked to see if the rental car had been reported stolen. He was informed that it was not but that it had been listed as an impounded vehicle. While Stahl attempted to determine what that meant he looked through the briefing notes he had taken at the beginning of his tour and found that approximately 24 hours ago three men roughly fitting the description of the defendants and Williams had committed an armed robbery in the area and had fled in a "new" bluish green Cordoba, similar in color to the defendants' vehicle.

As Officer Stahl walked back toward the defendants' car he noticed that the defendant Harrison was lifting up his head from a crouched position. When the officer pointed his flashlight into the car at the floor in front of Harrison he saw a .22 caliber revolver. Stahl then drew his gun and informed his partner of the gun. During the subsequent search of the car and its occupants the officers found two more handguns and ammunition.

At the station house Harrison was able to produce a registration for the vehicle and a receipt showing that the vehicle was no longer impounded and thus, as the officer conceded at the hearing "was properly in his possession". The defendants, however, were charged and subsequently indicted for unlawful possession of the weapons. ²

As noted the trial court granted the defendants' motion to suppress the evidence seized from the vehicle. The court held that Officer Stahl's actions in ordering the occupants to remain in the vehicle "constituted more than the minimal intrusion of requesting information" and could not be justified "in the absence of any indication of criminal activity". The court also held that when the officer gave th order he was relying solely on the fact that the three men were occupying a dirty rental car, which the court found was insufficient to provide the requisite reasonable suspicion that "criminal activity was afoot".

The Appellate Division affirmed agreeing that reasonable suspicion was the appropriate standard and that the facts did not establish reasonable suspicion. One Justice dissented, agreeing essentially with the prosecutor's position.

At the outset we observe that, in view of the factual findings made below, this case does not deal with the powers of the police to stop a vehicle. Here the defendants had voluntarily stopped the vehicle and parked it before the police approached. The prosecutor notes that under our decision in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, a police officer does not need reasonable suspicion to approach an individual for information. All that is required is an articulable basis, which in this case was supplied by the extremely dirty condition of the defendants' rental car. The prosecutor further contends that once the officers had the right to approach the car they could reasonably direct the occupants to remain in the car because this reduces the potential danger to the police and is "an extremely minor intrusion on the defendants' rights". It is urged that this is comparable to police officers ordering defendants out of a car to protect themselves which, the prosecutor contends, was recently held constitutional in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331. The prosecutor also contends that the courts below erred in finding the facts insufficient in this case because our recent decision in People v. Roman, 53 N.Y.2d 39, 439 N.Y.S.2d 894, 422 N.E.2d 554 stands for the proposition that "the initial stop" can be justified "on the basis of the unusual condition of the defendant's rented car".

The prosecutor's primary argument overlooks the basis for our holding in De Bour. In that case we observed (40 N.Y.2d at p. 223, 439 N.Y.S.2d 894, 422 N.E.2d 554) that "the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attenda factors increase in weight and competence". Thus when we held in that case that a police officer did not need reasonable suspicion to approach a citizen for further information we did so only because we recognized that such an inquiry involved a minimal intrusion that was not equivalent to a stop in which the individual's freedom of movement is significantly interrupted (see People v. De Bour, supra, at pp. 216, 223, 439 N.Y.S.2d 894, 422 N.E.2d 554). It should be evident from our holding in that and subsequent decisions that if the police escalate the encounter as they did here by exercising restraint over the individual as opposed to his vehicle, even out of concern for their safety, a more substantial predicate is required. In other words, before the police can forcibly or constructively stop an individual as was done here by the order to remain in the car there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers (People v. De Bour, supra, at p. 216, 439 N.Y.S.2d 894, 422 N.E.2d 554; People v. Carrasquillo, 54 N.Y.2d 248, 252, 445 N.Y.S.2d 97, 429 N.E.2d 775). Under the prosecutor's analysis reasonable suspicion would never be required because every stop begins with a police officer approaching an individual for information--a situation in which there is at least an unfounded risk to the officer's safety.

Neither is there any merit to the argument that prohibiting the occupants from leaving the automobile is such a minor intrusion on their rights that the police may do so absent reasonable suspicion. Confining the occupants to the car, even temporarily, is at least equivalent to a stop. A temporary stop is of course less intrusive than an arrest and thus does not require probable cause (see, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. De Bour, supra; see, also, People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660). However a stop is nevertheless a limited seizure of the person which at least requires reasonable suspicion (Terry v. Ohio, supra; People v. De Bour, supra; see, also, CPL 140.50, subd. 1). The Supreme Court's decision in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, supra, does not, as the prosecutor suggests, represent a departure from that requirement in cases involving police encounters with those using the public highways.

The key fact in the Mimms decision is that the driver had been lawfully stopped for a traffic offense. The court noted (at p. 111, 98 S.Ct. at p. 333) that the police had "already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it". The court concluded that out of a concern...