| People v Morris |
| 2017 NY Slip Op 06194 [153 AD3d 729] |
| August 16, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Anthony Morris and Rohan Golding,Respondents. |
Madeline Singas, District Attorney, Mineola, NY (Donald Berk and W. Thomas Hughes ofcounsel), for appellant.
Gaitman & Russo, Hempstead, NY (John S. Campo of counsel), for respondentAnthony Morris.
Jay H. Schwitzman, Brooklyn, NY, for respondent Rohan Golding.
Appeal by the People from an order of the Supreme Court, Nassau County (Carter, J.), datedAugust 23, 2016, which, after a hearing on that branch of the omnibus motion of the defendantAnthony Morris which was to suppress physical evidence and pursuant to a stipulation in lieu ofmotions of the defendant Rohan Golding, granted suppression of physical evidence.
Ordered that the order is affirmed.
On January 14, 2015, just before 9:30 p.m., two police officers responded to a report of ashooting involving a white Infiniti SUV with several occupants, including one female.Approximately 15 minutes later and eight or nine blocks away from the location of the reportedshooting, the officers observed an SUV matching that description parked in a strip mall parkinglot, and a woman standing next to it. As the officers approached in their vehicle, the womanwalked away, and the driver of the SUV began to drive away. The officers pulled the SUV over,exited their vehicle, and approached the SUV on foot, one officer on each side of it. The officersobserved that the two male occupants, the defendants herein, were leaning toward each other, andeach had an elbow on the SUV's center console. The officers did not observe any contraband orfirearms inside the SUV. The driver complied with the officers' request to provide his license andregistration, following which the defendants were removed from the SUV, frisked, handcuffed,and seated on a nearby curb to wait for eyewitnesses to the shooting to arrive. Additional officersarrived, one of whom approached the SUV and, noticing that the center console was slightlyelevated, opened it and found a handgun. The defendants were then arrested. The eyewitnessessubsequently arrived and confirmed that the defendants were not the persons who had committedthe shooting. A second handgun was later found in the center console.
"[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stoppedvehicle once the suspects have been removed and patted down without incident, as anyimmediate threat to the officers' safety has consequently been eliminated" (People vMundo, 99 NY2d 55, 58 [2002]; see People v Carvey, 89 NY2d 707, 710 [1997];People v Torres, 74 NY2d 224, 226 [1989]; People [*2]v Baksh, 113 AD3d626, 628 [2014]; People v Sanchez, 226 AD2d 284 [1996]; People v Stewart,199 AD2d 1043, 1044 [1993]; People v Snyder, 178 AD2d 757, 758 [1991], affd80 NY2d 815 [1992]).
Under the circumstances here, where the defendants had been removed from the SUV, thepolice lacked probable cause for a warrantless search of its center console, and the weaponsfound as a result were properly suppressed (see People v Baksh, 113 AD3d at 628; People v Vargas, 89 AD3d 771,772 [2011]; People v Stewart, 199 AD2d at 1044; People v Snyder, 178 AD2d at758).
Accordingly, the Supreme Court properly granted suppression of the physical evidenceseized from the SUV. Rivera, J.P., Leventhal, Austin and Christopher, JJ., concur.