People v. Robinson

• Decision Date: 11 July 1989
• Citation: 543 N.E.2d 733,74 N.Y.2d 773,545 N.Y.S.2d 90
• Parties: , 543 N.E.2d 733, 58 USLW 2114 The PEOPLE of the State of New York, Respondent, v. Neville ROBINSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 90

545 N.Y.S.2d 90

74 N.Y.2d 773, 543 N.E.2d 733, 58 USLW 2114

The PEOPLE of the State of New York, Respondent, v. Neville ROBINSON, Appellant.

Court of Appeals of New York.

July 11, 1989.

Certiorari Denied Nov. 13, 1989.

See 110 S.Ct. 411.

[74 N.Y.2d 774] Amy Donner and Philip L. Weinstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Elizabeth S. Ostrow, New York City, and Barbara D. Underwood, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division affirming the judgment of conviction and the denial of suppression should be affirmed. 140 A.D.2d 723, 529 N.Y.S.2d 33.

The Fourth Amendment of the United States Constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action (see, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331). The United States Supreme Court has reiterated that 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 " (New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 967, 89 L.Ed.2d 81 [emphasis added].

Defendant was a passenger in a car which unquestionably was lawfully stopped by two officers because it made an unsignalled right turn from the left lane of a New York City street across the flow of right-lane traffic cutting off another car and motorist one and a half car lengths behind it in the right lane (see, People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39). After pulling the car over, the officers approached one on each side. While one officer spoke with the driver about the traffic infraction, the other directed the defendant passenger to step out onto the sidewalk. With the passenger door open, the butt of a loaded .357 magnum handgun was plainly visible protruding from beneath the seat. The gun was seized and defendant was arrested. A postarrest search disclosed an additional six rounds of ammunition in defendant's pocket.

We conclude, as to defendant's Federal constitutional argument, the only one preserved in this case, that precautionary police conduct directed at a passenger in a lawfully stopped vehicle is equally authorized, within Federal constitutional guideposts, as that applied to a driver. Inasmuch as the risks in these police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger, "police may order persons out of an automobile during a stop for a traffic violation" (Michigan v. Long, 463 U.S. 1032, 1047-1048, 103 S.Ct. 3469, 3479-3480, 77 L.Ed.2d 1201, citingPennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, supra; see also, People v. McLaurin, 70 N.Y.2d 779, 521 N.Y.S.2d 218, 515 N.E.2d 904; People v. Livigni, 58 N.Y.2d 894, 460 N.Y.S.2d 530, 447 N.E.2d 78, affg. on opn. below 88 A.D.2d 386, 453 N.Y.S.2d 708). Brief and uniform precautionary procedures of this kind are not per se unreasonable and unconstitutional.

We declare no evisceration and certainly no "total evisceration", in the words of the dissent, of the Fourth Amendment's protections nor do we address, one way or the other, the dissent's implied importation of the State's distinct constitutional protection, because that issue is not preserved or before us.

The heavy reliance laid by the dissenting opinion on the facts warrants this brief, though self-evidently not dispositive, reference to the governing principles in that regard. The evidence at the suppression hearing supported the determination that requiring defendant to step from the car was reasonable under the particular facts and under the pertinent Federal guideposts, and inasmuch as the Appellate Division affirmed, leaving the findings undisturbed (see, People v. Harrison, 57 N.Y.2d 470, 477, 457 N.Y.S.2d 199, 443 N.E.2d 447; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), the order affirming the conviction and denial of the suppression of the seized evidence should not be overturned by this court.

Defendant's other arguments are either without merit or unpreserved.

ALEXANDER, Judge (dissenting).

Although the Supreme Court has not, to date, pronounced so total an evisceration of the Fourth Amendment's protections against warrantless searches and seizures, the majority of this court sweeps away entirely those protections in respect to the occupants of a lawfully stopped vehicle, proclaiming that the seizure of such occupants is per se reasonable based upon the risks inherent in "police/civilian vehicle encounters" (majority mem., at 775, at 91 of 545 N.Y.S.2d, at 734 of 543 N.E.2d). Because the citizens of our State are entitled to every bit as much protection under the Fourth Amendment as that mandated by the Supreme Court, I dissent and vote to grant defendant's suppression motion and to reverse his conviction.

The facts adduced at the suppression hearing reveal that at approximately 1:00 P.M. on January 15, 1985, plain-clothes Police Officers James Reinhold and Jack Travitz, while on anticrime patrol in Brooklyn in an unmarked patrol vehicle, observed an orange automobile driving in a northbound direction on Bedford Avenue. The two occupants of the automobile exchanged glances with the officers who then proceeded to follow the car in their patrol unit. Reinhold testified that he noticed that the driver repeatedly checked his side-view and rear-view mirrors and that both the driver and passenger appeared animated in their conversation and body movements. When the driver made an illegal right turn onto Carroll Street from the left lane of Bedford Avenue the officers signaled for the car to pull over and stop. The officers exited their vehicle and approached the Ford Travitz from the driver's side and Reinhold from the passenger's side. Upon reaching the passenger's side, Reinhold ordered defendant out of the car. Only after defendant had complied with this direction did Reinhold observe the butt of a handgun protruding from under the right front passenger seat. Both defendant and the driver were then immediately placed under arrest.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, the Supreme Court held that a police officer, upon stopping an automobile for a traffic infraction, may ask that the driver step out of his car before pursuing an investigation. In that case, the driver was stopped for an expired license plate. He was asked to step out of the car to produce his license and registration and as he exited the vehicle, the police observed a bulge under his jacket. The subsequent frisk uncovered a loaded .38 caliber revolver and the driver was immediately arrested. The court upheld the right of the police to order the driver out of the car based in large part on the perceived "inordinate risk confronting an officer as he approaches a person seated in an automobile" (id., at 110, 98 S.Ct. at 333). The legitimate safety concerns of police officers, it was concluded, outweighed the "de minimis" additional intrusion on a lawfully detained driver's liberty...