People v. Robinson

• Decision Date: 06 July 2000
• Citation: 271 A.D.2d 17,711 N.Y.S.2d 384
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>FRANK ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 17

711 N.Y.S.2d 384

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.FRANK ROBINSON, Appellant.

July 6, 2000.

Cheryl D. Harris of counsel (Stuart P. Levy on the brief; Robert T. Johnson, District Attorney of Bronx County, attorney), for respondent.

Abigail Everett of counsel (Robert S. Dean, Center for Appellate Litigation, attorney), for appellant, and appellant pro se.

NARDELLI, MAZZARELLI and SAXE, JJ., concur.

OPINION OF THE COURT

SULLIVAN, P. J.

This appeal, from a conviction after trial, presents, inter alia, a challenge to the denial, after a hearing, of suppression of a gun recovered from the floor of a livery cab stopped by the police for a traffic violation. According to defendant, the cab was unconstitutionally stopped on the mere pretext of a traffic violation. In asserting this argument, defendant relies heavily on police testimony that the officers were staking out the area on the lookout for criminal activity against cab drivers by their passengers, and argues that the officers never intended to issue a summons for the traffic violation.

The following evidence was adduced at the hearing. On November 22, 1993, at approximately 8:20 P.M., Police Officers Currao, of the Street Crime Unit, Mobile Taxi Homicide Task Force, and Davis, of the Canine Unit, and the dog Rambo, were on motor patrol in a marked police car in the vicinity of Webster Avenue and 173rd Street in The Bronx. Davis, in uniform, was driving; Currao was in plain clothes.

As the officers were driving south on Webster Avenue, they observed a northbound car, traveling at a high rate of speed, pass a red light at the intersection of Webster Avenue and Claremont Parkway. Seeing that the vehicle was a "big four-door car," Currao, although not "a hundred percent sure," assumed it was a livery cab. While Currao could see the driver, he could not determine whether there were any other occupants. Davis turned the police vehicle around, and the officers activated the high intensity lights and pulled the cab over. Currao did not intend to issue a summons but, instead, planned to give the driver a leaflet on safety tips and "instruct him." As the cab pulled over, with the police vehicle directly behind, Currao observed defendant, seated in the cab's rear compartment, turning two or three times to view the officers.

Currao exited the police vehicle and approached the cab on the passenger side, while Davis approached on the driver's side. Each of the officers held a flashlight; neither had drawn his gun. As he watched Davis speak to the driver, Currao shined his flashlight into the back of the cab where defendant was seated, wearing a leather jacket that was about three-quarters closed, with the top part open so that Currao could see defendant's shirt. Noticing "a puffy area around [defendant's] chest * * * [that] was bulging out," Currao believed that defendant was wearing a bulletproof vest. When, at Currao's request, defendant stepped out of the car, Currao placed his hand on defendant's chest where the jacket was open and confirmed his suspicion of a bulletproof vest.

Then Currao, without leaning into the car, shined his flashlight through the open door into the passenger compartment and saw a small revolver on the floor, "[r]ight in front of" where defendant had been seated. Currao handcuffed defendant and recovered the gun, which contained five rounds of ammunition. When Currao told Davis of his find, defendant stated, "It's not my gun."

A defense witness, claiming to have seen the incident, testified that although she observed a police officer enter the rear compartment of the cab and later saw him reach his hand out of the rear passenger side window, she did not recall seeing a gun. Finding Currao's testimony to be credible and that the officers stopped the cab for a traffic infraction, which was not a subterfuge to conduct some other type investigation, and that the defense witness's testimony was irrelevant to the issue at hand, the hearing court denied the motion to suppress the gun, vest and defendant's statement. The trial evidence, although more comprehensive, basically followed the hearing narrative. On appeal, defendant challenges neither the weight nor sufficiency of the evidence but does renew his argument that the traffic stop was pretextual.

A pretext stop has generally been defined as a police officer's use of a traffic infraction as a subterfuge to stop a motor vehicle in order to investigate the driver or occupant about an unrelated matter. (See, People v Laws, 213 AD2d 226, 227, lv denied 85 NY2d 975.) The rule seems to be that the traffic violation may not be used as a pretext to investigate an unrelated matter. (Supra; People v Letts, 180 AD2d 931, 934, appeal dismissed 81 NY2d 833.) But as this Court noted in People v Washington (238 AD2d 43, 49, lv denied 91 NY2d 1014): "Although the Court of Appeals, in dicta, has expressed its concern about pretextual police conduct (see, e.g., People v Spencer, 84 NY2d 749, 753, cert denied 516 US 905; People v Woods, 64 NY2d 736, 737; People v Prochilo, 41 NY2d 759, 761-762), the court `has never expressly held pretextual search and seizure conduct invalid under article 1, § 12' of the State Constitution (Pitler, Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals' Quest for Principled Decisionmaking, 62 Brooklyn L Rev 1, 283-284, n 1096). On the other hand, the United States Supreme Court, expressing the Federal view for determining the propriety of traffic stops, has held, contrary to the apparent New York rule, that the police officer's subjective reason for stopping an automobile is irrelevant as long as the stop is reasonable (Whren v United States, 517 US 806, 810-813) and that `[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred' (supra, 517 US, at 810)."

The Second Department, in People v Henry (258 AD2d 473, lv denied 93 NY2d 874), People v Alcide (252 AD2d 591) and People v Dougherty (251 AD2d 344, lv denied 92 NY2d 896), appears to have adopted the objective test set forth in Whren. The other Departments, including this Court, still recognize the concept of pretext stops and apply a subjective test to determine whether a stop is pretextual, that is, whether the traffic infraction was the primary motivation for stopping the vehicle or whether, instead, the officer's primary motivation was unrelated to the traffic violation. (See, People v Washington, supra, 238 AD2d at 47; see also, People v Martinez, 246 AD2d 456, 457, lv denied 92 NY2d 856 [this Court applied subjective test for determining legality of traffic stop, noting that Whren did not compel contrary result]; People v Califano, 255 AD2d 701; People v McGriff, 219 AD2d 829, 830.)

Unfortunately, the courts applying the subjective test "have never provided a uniform analytical framework for determining whether a stop is pretextual." (People v Washington, supra, 238 AD2d, at 50.) Nor has the Court of Appeals provided any guidelines in this area. (Supra.) As a result, courts relying on the subjective test have applied a variety of factors to determine the police officer's primary motivation: whether the officer checked the car's registration or issued a summons to its driver; whether the officer made any inquiry about the alleged traffic infraction other than asking for the driver's license and car registration; whether the officer's assignment included issuing traffic summonses; whether the officer followed the vehicle before observing the traffic infraction; whether, before the stop, the officer followed the car for a significant distance or, once stopped for a traffic infraction, detained defendant for an extended period of time, and whether the officer had, prior to the stop, already determined to stop and arrest the defendant. (People v Washington, supra, 238 AD2d, at 50.) If there is one less than salutary aspect of this analysis, it is "the evidentiary difficulty of establishing subjective intent" through objective means. (Whren v United States, supra, 517 US, at 814.)

Of course, we need not engage in an analysis applying the foregoing criteria to the underlying facts to determine the validity of the stop in question if we were to decide the case on the basis of Whren v United States (517 US 806, supra). Whren held that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." (Supra, at 810.) "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (Supra, at 813.) Under such a standard, the validity of the stop in question is beyond reproach. Although defendant, in a pro se supplemental brief, suggests that no traffic violation ever occurred, at the hearing he never contested the police testimony and the court's finding that the cab driver passed a red light; he limited his argument to the claim that the stop for the traffic infraction was pretextual. Moreover, great deference is due the hearing court's factual findings based on a credibility determination. (See, People v Martinez, 267 AD2d 6.)

In Whren (517 US 806, supra), the defendant argued that the Fourth Amendment's test for determining the validity of traffic stops should not be the probable cause standard, but, rather, ought to turn or "whether a police officer, acting reasonably, would have made the stop for the reason given." (Supra, at 810.) The defendants argued that the standard proposed would be consistent with earlier Supreme Court decisions which "disapprov[ed] of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas." (Supra, at 811, citing Florida v Wells, 495 US 1, 4; Colorado v Bertine, 479 US 367, 372; New York v Burger, 482 US 691, 716-717.)

The Supreme Court rejected this argument, noting, "Not only...