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People v. Hardee

New York Court of Appeals

November 16, 2017

The People & c., Respondent,
v.
Stanley Hardee, Appellant.

          Rachel T. Goldberg, for appellant.

          Jessica Olive, for respondent.

          MEMORANDUM

         The order of the Appellate Division should be affirmed.

         The issue whether "the likelihood of a weapon in [defendant's] car [was] substantial and the danger to the... safety [of the officers who stopped that vehicle was] 'actual and specific'" (People v Carvey, 89 N.Y.2d 707, 711 [1997], quoting People v Torres, 74 N.Y.2d 224, 231 n 4 [1989]) presents a mixed question of law and fact (see People v Omowale, 18 N.Y.3d 825, 827 [2011]). Here, there is record support for the determination that those circumstances existed and justified the limited search of the interior of that vehicle (see People v Mundo, 99 N.Y.2d 55, 57-59 [2002]; see also Omowale, 18 N.Y.3d at 827, affg 83 A.D.3d 614, 616-617 [1st Dept 2011]). Consequently, defendant's challenge to the denial of his suppression motion is beyond this Court's further review (see generally People v McBride, 14 N.Y.3d 440, 448 [2010], cert denied 562 U.S. 931');">562 U.S. 931 [2010]). Defendant's remaining contention is not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 491-493 [2008]).

          STEIN, J. (dissenting):

         "[W]here the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts, this [C]ourt, absent an error of law, will not disturb the findings of the Appellate Division and the suppression court" (People v McRay, 51 N.Y.2d 594, 601 [1980]). Conversely, where the issue presented is whether the People have demonstrated "the minimum showing necessary" to establish the legality of police conduct, "a question of law is presented for [our] review" (id.; see e.g. People v Gonzalez, 25 N.Y.3d 1100, 1101 [2015]).

         Accepting the facts as found by the Appellate Division and the suppression court, which are not disputed here, the People failed to adduce the minimum showing required to justify a protective search of defendant's vehicle - namely, a substantial likelihood of the presence of a weapon and an actual and specific threat to officer safety. I, therefore, disagree with the majority's conclusion that the question of whether the protective search was lawful is a mixed question of law and fact reviewable only for record support, and I would hold that the search of defendant's vehicle was unlawful.

         I.

         Defendant was convicted, upon his guilty plea, of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]). Prior to his plea, defendant sought suppression of the firearm found in his vehicle, following a traffic stop, on the basis that it had been discovered during an illegal search.

         The following facts were elicited from two police officers at the suppression hearing. Three police officers patrolling Lexington Avenue, in Manhattan, observed a grey sedan traveling approximately 20 miles per hour over the speed limit and changing lanes without signaling. The officers pursued the sedan and, when they pulled behind it and activated the lights and sirens on their vehicle, the sedan immediately pulled over. Two officers approached the driver's side of the sedan, while the third officer approached the front passenger door.

         Defendant was driving the vehicle and his fiancé was seated in the front passenger seat. Defendant appeared nervous and he admitted to the officers that there was alcohol in two cups in the center console. During his interaction with the officers, defendant appeared "hyper, " but there was no other evidence of drug use or intoxication. In addition to looking around the vehicle at the officers and at his fiancé, defendant looked over his shoulder toward the back seat of the vehicle a few times. The officers requested that defendant exit the vehicle; although he initially shook his head and refused, he peacefully exited the vehicle the second or third time he was asked.

         Once defendant was outside the vehicle, one of the officers inquired if defendant had any weapons in his possession and frisked his person. Although he still appeared nervous, defendant was cooperative during the frisk, which did not reveal any weapons. One of the officers then directed defendant to place his hands in his pockets and walk to the rear bumper of the vehicle. Defendant complied, with the two officers on his side of the vehicle accompanying him. While he was standing at the bumper, defendant looked over his shoulder a couple of times toward the car, against the officers' directions. The officers decided to handcuff defendant, and placed one handcuff on him before defendant allegedly "started resisting" by "tens[ing] up."

         Meanwhile, as the two officers escorted defendant to the rear of the vehicle, the third officer at the passenger door requested that defendant's fiancé - who had thus far remained calm and courteous in the vehicle - step out of the car, and he directed her to the rear bumper of the vehicle, as well. After she complied, the officer returned to the front passenger door, entered the vehicle with his flashlight, and leaned over into the back seat compartment to look in a maroon shopping bag located on the floor. According to the officer, he believed that defendant had been looking at the bag when defendant had glanced over his shoulder while still in the car. The officer picked up the bag, tugged on the handles to open it, and saw that it contained a firearm secreted inside a smaller black bag. When he turned to signal his discovery to his fellow officers, he saw, for the first time, that the other officers were attempting to handcuff defendant. The officer left the gun in the car, and helped to secure defendant.

         Defendant argued that, based on the foregoing facts, suppression was required because the gun was found during a warrantless search conducted without probable cause, and there was no basis for a protective search of the vehicle. In response, the People asserted that a limited protective search of the vehicle was justified based on defendant's behavior. Supreme Court denied suppression of the gun on the ground that the officers had a reasonable belief that there was a weapon in the vehicle that presented an actual and specific danger to their safety. ...


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