People v. Alston , 600 N.Y.S.2d 688 ( 1993 )

Order of the Supreme Court, New York County (Jerome Hornblass, J.), rendered September 16, 1992, which granted defendant’s motion for suppression, is reversed, on the law, the motion denied and the matter remanded for further proceedings.

The following findings were made by the suppression court after the hearing:

"On January 12, 1992, Police Officer Breen was in uniform in a marked police car. At around 10 p.m., the officer observed an individual [the defendant] enter a double-parked vehicle. He then observed another individual quickly exit a building, lean into the back seat of the car and run back into the building.

"The officer followed the vehicle as it pulled away from the curb. After observing erratic movement by the vehicle, the police car pulled up behind the vehicle. The driver then accelerated, switched lanes without signaling and the back seat passenger, the defendant, nervously looked out the rear window. The officer turned on his emergency lights and the vehicle stopped three blocks later after being pursued for 30 to 45 seconds.

"As the officer approached the vehicle, he observed the defendant again looking over his shoulder and holding a dark object between his legs. As the officer drew nearer, the defendant pushed the object from between his legs and kicked it underneath the front seat. The officer requested the defendant to exit the vehicle and recovered the object from under the seat. That object turned out to be a loaded semi-automatic handgun. The officer then searched the defendant’s person and discovered 76 bags of marijuana and two beepers. The officer informed the defendant that he was under arrest and the defendant then stated that the gun was the driver’s but the drugs and beeper were his. The search of the defendant took place outside of the vehicle.

"Conclusions of law. The initial stop of the vehicle can be upheld on the basis of a traffic infraction. The officer observed the car swerving and being driven erratically and, more specifically, the vehicle changed lanes a number of times without any signal indication.

"Furthermore, the defendant’s actions upon approach of the officer towards the vehicle granted the officer the right to request the defendant to step out of the vehicle.

"As noted in People v. Torres, 74 NY2d 224, an officer can take necessary action to protect himself from harm if he has reasonable suspicion that the defendant is dangerous and may have access to a weapon in the vehicle.

"In the instant case, the officer observed suspicious and/or nervous behavior by the defendant when he began looking out the rear window. His hand and leg motions provided the officer with sufficient suspicion that the defendant might be dangerous and the removal of the defendant from the vehicle was warranted.”

However, after these findings of fact and conclusions, the court finally concluded that once defendant was removed from the reach of the weapon, the danger to the officer had passed, and the officer had no right to "search the vehicle”.

This final conclusion of the suppression court overlooked the fact that after defendant kicked the "dark object” which could well have been a weapon under the front seat, the driver of the car was still in the car and had access to what was later discovered to be a semi-automatic weapon.

The court also incorrectly relied upon People v Torres (74 NY2d 224, supra) in finding that the limited search of the car, when the officer reached under the front seat to retrieve the object, was unwarranted. In Torres, two suspects had already been removed from a car and the detective’s conduct in reaching into the car after the "suspects had been isolated from the interior of the car”, and removing a bag which revealed the presence of a gun, "was not reasonably related to the need to protect the officers’ safety in this street encounter” (supra, at 230, 231). In this case, on the contrary, the driver was still in the car and the officer’s action in simply reaching under the front seat and retrieving the "dark object” was reasonably related to the need to protect his and his partner’s safety. While the dissent states that "there was no articulable basis for the supposition that the driver constituted a danger to the officers”, there was testimony, accepted by the suppression court, that the driver accelerated after the police car pulled up behind his vehicle. Further, Officer Breen testified that after the police emergency lights and siren were turned on "to indicate to the driver to pull over”, the driver kept going an additional three blocks when he finally "stopped the car at a screeching halt”. While the dissent appears to postulate, as a measuring standard of the driver’s possible danger to the officers, "reasonable suspicion by the police that the remaining occupants have been involved in any violent offense or that they might resort to violence to avoid apprehension”, these actions of the driver, before he stopped the vehicle, certainly gave an "articulable basis for the supposition that [he] constituted a danger to the officers” and constituted a sufficient predicate for the limited intrusion of the officer recovering the "dark object” to safeguard himself and his partner. "Contrary to defendant’s contention, our holding in People v Torres (74 NY2d 224) does not dictate a contrary result. There, the police proceeded to search a bag located on the front seat of a car that they had just stopped after the suspect had been removed from the vehicle. We concluded that, inasmuch as the police had already isolated the suspect from the bag, the search could not be said to have been 'reasonably related to the need to protect the officers’ safety’ (id., at 231). Here, by contrast, the rather cursory examination of the bag occurred while defendant was still sitting in the car. Since, at that point, the bag was still within defendant’s reach, the police were justified in examining it.” (People v Jackson, 79 NY2d 907, 908-909 [emphasis in original].)

Accordingly, the limited intrusion into the car by Officer Breen in reaching under the front seat and retrieving the object he had seen defendant kick under that seat was reasonably related to the need to protect the safety of himself and his partner, since the object (which, of course, was a gun) was well within the immediate reach of the driver of the vehicle who remained in the car (see also, People v Ponce, 182 AD2d 1103, lv denied 80 NY2d 836). Concur—Sullivan, Rosenberger, Asch and Rubin, JJ.