| People v Baksh |
| 2014 NY Slip Op 00112 [113 AD3d 626] |
| January 8, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Baksh, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andChristopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered April 26, 2012, convicting him of criminal possession of a weaponin the second degree and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress physical evidence is granted, the indictment isdismissed, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings consistent with CPL 160.50.
The defendant was convicted of criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree. Prior to trial, thedefendant moved to suppress physical evidence—a gun—which wasrecovered by a police officer during a traffic stop. At the suppression hearing, PoliceOfficer Marique Monzert testified that, while on duty, she received a radio run regardinga robbery in the vicinity, which described the suspect as a tall, black male wearing ablack bubble jacket with a fur-lined hood. The radio run indicated that a black bag withthe word "Puma" written on it was taken during the robbery. About 10 to 15 minutesafter receiving the radio run, Monzert came upon a person she described as a tall, blackmale wearing a black bubble jacket with a fur-lined hood, leaning into the passenger sidewindow of a vehicle and talking to the occupants of the vehicle, which included thedefendant, who was sitting in the driver's seat. A witness for the defendant, who was anoccupant of the vehicle, testified that the person with whom he and the defendant weretalking was the defendant's cousin, and had approximately the same complexion as thedefendant, who was a light-skinned Hispanic man. Monzert did not testify that sheobserved the suspect give anything to the occupants of the car or that she observed thesuspect holding a black bag.
Monzert then drove around the block. Monzert testified that when she next saw thevehicle, it was driving at "a high rate of speed" and she pulled the vehicle over. Monzertacknowledged that, once she approached the vehicle, she knew that the suspect she hadseen earlier [*2]was not in the car. Monzert observedthrough the open windows a black bubble jacket and several book bags, some of whichwere black. Monzert did not state that the black bubble jacket had a fur-lined hood, andshe did not voucher the jacket she saw in the car. Monzert also did not testify that shesaw the word "Puma" on any of the black bags.
At Monzert's request, the defendant and his passenger stepped out of the car andstood behind the rear of the vehicle. At that point, Monzert entered the back seat of thevehicle to check if any of the bags had the word "Puma" written on them. Upon enteringthe car, Monzert observed that the air conditioning vents had been removed from thecenter console and that there was a firearm inside the console. She then placed thedefendant under arrest.
Contrary to the defendant's contention, the initial vehicle stop was not unlawful. Thedefendant argues that Monzert did not stop the defendant's vehicle for a traffic violation,but, rather, to investigate a possible robbery or narcotics transaction. However, "provideda traffic stop is supported by probable cause, 'neither the primary motivation of theofficer nor a determination of what a reasonable traffic officer would have done underthe circumstances is relevant' " (People v Wright, 98 NY2d 657, 658-659 [2002],quoting People v Robinson, 97 NY2d 341, 349 [2001]; see Whren v UnitedStates, 517 US 806 [1996]). Here, since the hearing evidence demonstrated thatMonzert had probable cause to believe that the defendant violated Vehicle and TrafficLaw § 1180, which prohibits driving a vehicle "at a speed greater than isreasonable and prudent under the conditions and having regard to the actual and potentialhazards then existing," the initial vehicle stop was not unlawful (see People v Miller, 57 AD3d568, 570 [2008]; see generally People v Wright, 98 NY2d 657 [2002];People v Robinson, 97 NY2d 341 [2001]).
The same cannot be said, however, for Monzert's search of the vehicle. " '[A] policeofficer acting on reasonable suspicion that criminal activity is afoot and on an articulablebasis to fear for his [or her] own safety may intrude upon the person or personal effectsof the suspect only to the extent that is actually necessary to protect himself [or herself]from harm' " (People v Mundo, 99 NY2d 55, 58 [2002], quoting People vTorres, 74 NY2d 224, 226 [1989]; see People v Carvey, 89 NY2d 707, 710[1997]). Therefore, "absent probable cause, it is unlawful for a police officer to invadethe interior of a stopped vehicle once the suspects have been removed and patted downwithout incident, as any immediate threat to the officers' safety has consequently beeneliminated" (People v Mundo, 99 NY2d at 58; see People v Carvey, 89NY2d at 710; People v Torres, 74 NY2d at 226). A "narrow exception" to thisrule exists in circumstances where: " 'following a lawful stop, facts revealed during aproper inquiry or other information gathered during the course of the encounter lead tothe conclusion that a weapon located within the vehicle presents an actual and specificdanger to the officer's safety sufficient to justify a further intrusion, notwithstanding thesuspect's inability to gain immediate access to that weapon' " (People v Carvey,89 NY2d at 710-711, quoting People v Torres, 74 NY2d at 231 n 4; seePeople v Mundo, 99 NY2d at 58).
Here, in arguing that Monzert's search of the defendant's vehicle was lawful, thePeople invoke this exception, relying upon this Court's decisions in People v Cameron (6 AD3d546 [2004]) and People v March (257 AD2d 631 [1999]). In those cases,citing to Torres and Carvey, this Court held that a police officer's limitedsearch of a vehicle for weapons was permissible in light of certain facts learned by thepolice officer during the encounter (see People v Cameron, 6 AD3d at 546;People v March, 257 AD2d at 632-633).
Monzert's search of the vehicle does not fit within the exception to the general rulethat probable cause is required to search a vehicle once, as here, the suspects have beenremoved and patted down without incident. The exception, which is geared towardpreventing harm to police officers, allows for a limited search for weapons(see People v Cameron, 6 AD3d at 546; People v March, 257 AD2d at633). It requires a substantial likelihood of a weapon in the car, and a resulting danger tothe officer's safety that is "actual and specific" (People v Carvey, 89 NY2d at711).[*3]
Monzert specifically testified that she entered thedefendant's vehicle to search the bags in the back seat, to see if any of the bags was theproceeds of the robbery. Monzert never testified that she thought it was substantiallylikely that there was a weapon in the vehicle or that she perceived some actual andspecific threat to her or the other officers' safety, despite the removal of the defendantfrom the car (cf. People vCheek, 18 AD3d 475 [2005]; People v Cameron, 6 AD3d at 546;People v March, 257 AD2d at 632-633). Accordingly, contrary to the People'scontention, probable cause was required to justify Monzert's search of the vehicle.
To the extent the People argue that probable cause existed for the search, thatcontention is without merit. Pursuant to the automobile exception to the warrantrequirement, a warrantless search of a vehicle is permitted when the police have probablecause to believe the vehicle contains contraband, a weapon, or evidence of a crime(see California v Carney, 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 the police at the time of the search did not rise tothe level of probable cause. Monzert had observed a person matching a description of arobbery suspect talking to the defendant and his passenger, 10 to 15 minutes after therobbery took place. The suspect was not holding a black bag and was not seen handinganything to the defendant or the passenger. Moreover, the 10 to 15 minutes between therobbery and the suspect's conversation with the defendant would have given the suspect,if he actually were the perpetrator of the robbery, ample opportunity to store the bagsomewhere other than the defendant's car, or to dispose of the bag. Upon stopping thedefendant's vehicle, Monzert realized that the robbery suspect was not in the car. Underthese circumstances, the presence of a black bubble jacket and black book bags in theback of the defendant's car did not give Monzert probable cause to believe that one of thebags was stolen during the robbery. Rather, at most, Monzert "may have had a reasonablebasis for suspecting" that one of the bags might have been the proceeds of therobbery (People v Torres, 74 NY2d at 227). Such suspicion does not permit anofficer to search within the passenger compartment of a vehicle (see id.; People v Vargas, 89 AD3d771, 772 [2011] [the fact that the police came upon a black male and a Hispanicmale in a two-door silver sedan approximately 10 minutes after, and four blocks awayfrom the scene of, a robbery, reportedly committed by a black male and a Hispanic malewho fled in a two-door silver sedan, did not give the police probable cause to search thevehicle]).
Since the search of the defendant's vehicle was unlawful, the Supreme Court shouldhave granted that branch of the defendant's omnibus motion which was to suppress thegun found in the course of that search (see People v Vargas, 89 AD3d 771 [2011]). Since, withoutthat evidence, there could not be sufficient evidence to prove the defendant's guilt ofcriminal possession of a weapon in the second and third degrees, the indictment shouldhave been dismissed (see Peoplev Kevin W., 91 AD3d 676, 678 [2012], affd 22 NY3d 287, 2013 NY Slip Op 07761 [2013]; People v Richards, 32 AD3d 545 [2006]).
In light of our determination, we need not reach the parties' remaining contentions.Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.