| People v Vargas |
| 2011 NY Slip Op 07867 [89 AD3d 771] |
| November 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephen Vargas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,Michael J. Balch, and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered March 23, 2010, convicting him of robbery in the first degree and criminal possessionof a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, and a new trial is ordered.
On July 16, 2008, at approximately 1:00 a.m., a police officer driving an unmarked vehiclewith two partners received a radio report of an armed robbery committed by two suspects,described as a black male and a Hispanic male, who fled in a two-door, silver sedan.Approximately 10 minutes later and four blocks away from the scene of the robbery, the officerobserved a vehicle matching the description in the report turn into a parking lot. The officerfollowed the vehicle, which was occupied by a driver and two passengers, and after the vehicleparked, the officer pulled behind it. He then observed the front-seat passenger reach down as theseat leaned forward, allowing the back-seat passenger, a Hispanic male later identified as thedefendant, to exit the vehicle. The officer approached the passenger's side, stopped the defendant,and requested the front-seat passenger, a black male, to exit the vehicle. Once the female driverwas also removed from the vehicle and the three occupants were secured, the officer reachedunder the front passenger seat and recovered a loaded pistol. The driver, the front-seat passenger,and the defendant were then arrested. Later at the precinct, the police recovered a bag containingcertain property belonging to the robbery complainant from the vehicle.
At the suppression hearing, the People argued that the search of the vehicle was lawful underthe automobile exception. The hearing court agreed and denied that branch of the defendant'somnibus motion which was to suppress physical evidence. We reverse.
Pursuant to the automobile exception to the warrant requirement, a warrantless search of avehicle is permitted when the police have probable cause to believe the vehicle contains [*2]contraband, a weapon, or evidence of a crime (see California vCarney, 471 US 386, 390-392 [1985]; People v Yancy, 86 NY2d 239, 245-246[1995]; People v Milerson, 51 NY2d 919 [1980]). Here, the circumstances known to thepolice at the time of the search did not rise to the level of probable cause. Contrary to thePeople's contention, the front-seat passenger's actions in reaching down and allowing thedefendant to exit the vehicle were innocuous, and did not provide probable cause for suspectingthat the vehicle contained a gun (see People v Torres, 74 NY2d 224, 227 [1989];People v Snyder, 178 AD2d 757, 758 [1991], affd 80 NY2d 815 [1992];People v Drayton, 172 AD2d 849 [1991]).
Moreover, at the suppression hearing, the People did not rely on the theory that the policewere entitled to perform a limited protective search based on a reasonable suspicion that "aweapon located within the vehicle present[ed] an actual and specific danger to their safety"(People v Mundo, 99 NY2d 55, 59 [2002], quoting People v Carvey, 89 NY2d707, 712 [1997] [internal quotation marks omitted]), and the hearing court did not address thattheory. Thus, the People may not assert this theory for the first time on appeal (see People vDodt, 61 NY2d 408, 416 [1984]).
Accordingly, that branch of the defendant's omnibus motion which was to suppress physicalevidence should have been granted. Contrary to the People's contention, the error in admitting thephysical evidence was not harmless beyond a reasonable doubt (see People v Crimmins,36 NY2d 230, 237 [1975]).
In light of our determination, the defendant's remaining contention need not be addressed.Angiolillo, J.P., Florio, Leventhal and Cohen, JJ., concur.