| People v Price |
| 2020 NY Slip Op 04430 [186 AD3d 903] |
| August 6, 2020 |
| Appellate Division, Third Department |
[*1](August 6, 2020)
| The People of the State of New York,Respondent, v Monte A. Price, Appellant. |
Mark D. Suben, Cortland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan J. Yorke of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered October 14, 2016, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
On January 28, 2016 at approximately 5:30 p.m., a patrolling police officer observed avehicle with four occupants run a stop sign. The officer made a U-turn and tried to catch up tothe vehicle, but did not activate his emergency lights. The officer caught up to the vehicle justafter it had pulled into a residential driveway and pulled in behind it. He saw the two rearpassengers walking away, one, a woman heading toward the front door of the house, and theother, defendant, moving out of sight behind it. The pair ignored the officer's directive to comeback to the vehicle, but soon returned upon their own initiative. The officer asked both to identifythemselves and learned that the woman was there to visit her uncle. The homeowner cameoutside around that time and told the officer's partner that he did not know anyone in the vehicleand that he had seen defendant throw something away behind the house. The woman anddefendant were then detained and handcuffed, and a loaded revolver was found on the groundbehind the house.
Defendant was charged in an indictment with offenses related to the incident and moved to,as is relevant here, suppress the handgun. Following a suppression hearing, County Courtdeclined to do so. Defendant thereafter pleaded guilty to criminal possession of a weapon in thesecond degree in satisfaction of the indictment. As contemplated by the plea agreement, CountyCourt sentenced defendant to four years in prison and five years of postrelease supervision.Defendant appeals, focusing exclusively upon the denial of his suppression motion.
Deferring to the foregoing factual findings of County Court (see People v Vandebogart, 158 AD3d976, 978 [2018], lv denied 31 NY3d 1089 [2018]; People v James, 155 AD3d 1094,1096 [2017], lv denied 30 NY3d 1116 [2018]), we affirm. The officer observed a trafficinfraction when the vehicle ran a stop sign (see Vehicle and Traffic Law§ 1172 [a]) and was accordingly justified in approaching the vehicle after he hadcaught up to it (see People vGuthrie, 25 NY3d 130, 134 [2015]; People v Issac, 107 AD3d 1055, 1057 [2013]; People v Coutant, 16 AD3d 772,774 [2005]). Defendant suggests that the traffic infraction was a pretext for making the approach,but that contention is unpreserved for our review (see People v Arce, 150 AD3d 1403, 1404 [2017], lv denied29 NY3d 1090 [2017]; People vDurham, 146 AD3d 1070, 1072 [2017], lv denied 29 NY3d 997 [2017]). As aresult, although one might reasonably question why the officer, upon seeing a traffic violation ofsufficient gravity to cause him to make a U-turn and follow the vehicle, did not put on his sirenor emergency lights, and then approached the vehicle with more apparent interest in thepassengers than the driver, the record was not developed on the possibility of an ulterior motivefor the officer's actions. It follows that the record affords no basis for defendant's speculation asto the officer's motivations. We are, in any event, bound by controlling precedent that thosespeculative motivations would not render an otherwise proper approach invalid (see People vRobinson, 97 NY2d 341, 348-349 [2001]; People v Spencer, 152 AD3d 863, 867 [2017], lv denied 30NY3d 983 [2017]).
The officer had discretion to "control the scene in a way that maximize[d]" safety as theapproach unfolded (People v Forbes, 283 AD2d 92, 96 [2001], lv denied 97NY2d 681 [2001]), could have directed defendant to exit the vehicle had he been in it and, inview of the heightened safety concerns stemming from defendant's refusal to return to the vehicleand brief disappearance behind the house, was free to direct that defendant sit on the hood of thevehicle upon his return (see People vGarcia, 20 NY3d 317, 321-322 [2012]; People v Robinson, 74 NY2d 773,774-775 [1989], cert denied 493 US 966 [1989]; People v Martin, 156 AD3d 956, 957 [2017], lv denied 31NY3d 985 [2018]). Shortly thereafter, the officer learned that the homeowner did not knowanyone in the vehicle despite their claims and had watched defendant throw something awaybehind the house. The foregoing created a reasonable suspicion of criminal activity by defendantthat warranted his detention, after which the handgun was recovered and afforded probable causefor his arrest (see People v Pines, 99 NY2d 525, 527 [2002]; People v Smith, 168 AD3d 885,885-886 [2019], lv denied 33 NY3d 1108 [2019]; People v LaFontant, 46 AD3d 840, 842 [2007], lv denied10 NY3d 841 [2008]). Thus, even accepting that defendant had standing to seek suppression of ahandgun (but see People v Habeeb,177 AD3d 1271, 1271-1272 [2019], lv denied 34 NY3d 1159 [2020]), suppressionwas not called for.
Pritzker and Reynolds Fitzgerald, JJ., concur.
Lynch, J.P. (concurring). We respectfully concur. In our view, when defendant discarded thehandgun in the backyard, he did so of his own accord and thus abandoned any right to challengethe seizure of the handgun by the police (see People v Boodle, 47 NY2d 398, 402-404[1979], cert denied 444 US 969 [1979]). For this reason, we agree that County Courtproperly denied defendant's suppression motion. Ordinarily, that would end the matter, butfurther comment is warranted to address the majority's premise that there was a foundedsuspicion of criminality that justified the detainment of defendant on the hood of hisvehicle—a premise with which we disagree.
We agree with the majority that the police have probable cause to stop a vehicle based on atraffic infraction. Accepting, as County Court found, that a traffic violation took place, theconcern here is that the involved officer (hereinafter the officer) did not conduct a routine trafficstop and provided no plausible explanation for failing to do so. The suppression hearingtestimony shows that, as the officer was proceeding northbound on Sullivan Street in the City ofElmira, Chemung County, and approaching the Harper Street intersection, he observed a vehicle,a Chevy, in which defendant was a backseat passenger, turning from Harper Street onto SullivanStreet. The officer explained that he saw the Chevy "approach the stop sign, slow but neverc[o]me to a complete stop" and then it "rolled through the stop sign and turned to travelsouthbound on Sullivan [Street]." When the Chevy and the patrol vehicle passed each other, theofficer observed that there were four occupants in the Chevy. The officer proceeded to make a U-turn and began to, in his words, "attempt to catch up to the [Chevy]." He did not, however,activate his emergency strobe lights, but continued to follow, noting that there was anothervehicle between his patrol vehicle and the Chevy. Considering the routine nature of the trafficinfraction, it is troubling that no convincing explanation was provided for why the officer did notsimply activate his lights and pull over the Chevy. The intervening vehicle was really of nomoment for, had the officer activated the lights, it is fair to say that both the intervening vehicleand the Chevy, in turn, would have pulled over. In other words, the facts presented demonstratethat the officer could have conducted a routine traffic stop. The perplexing question is why hefailed to do so—a question he never convincingly answers.
Instead, the ensuing events escalate when the officer and a second officer blockade the Chevywith their patrol cars in the driveway of a house (see People v Jennings, 45 NY2d 998,998 [1978]). We recognize that the officer briefly lost sight of the Chevy before spotting it in thedriveway. Contrary to County Court's assessment that the Chevy must have been speeding, theofficer confirmed on cross-examination that he did not notice that the Chevy was traveling at anexcessive speed. The officer testified that, observing defendant and the female backseatpassenger—both of whom are black—walking towards the house, he called out forthe two to return to the Chevy, but noted that they "didn't appear to turn around, no response atall." This limited explanation leaves open the question of whether either defendant or the femalepassenger even heard the officer. Their lack of response may only speculatively be characterizedas a "refusal to return to the vehicle." Moreover, under the circumstances presented, defendantwas under no obligation to respond (see People v Holmes, 81 NY2d 1056, 1057-1058[1993]). Only seconds later, after going to the front door of the house, the female passengerwalked directly back to the Chevy, where she explained to the officer that this was her uncle'shouse—which turned out to be a false statement. Within 30 seconds, defendant alsowalked back to the Chevy and provided the officer with his name—which was also laterdetermined to be false—and his date of birth. That said, as of that moment, the officersonly knew of a simple traffic infraction and, yet, the officer directed the female passenger to sitback in the Chevy and then directed defendant to sit on the hood of the Chevy.
Again, the question is why the officers reacted in such a way when the context is a simpletraffic infraction and the circumstances do not reflect a heightened safety concern. We recognizethat the officer expressed a safety concern based on defendant walking behind the house (thatthere was a weapon behind the house and that a confrontation would ensue), but he alsoacknowledged that he did not observe anything in defendant's hands when defendant returned tothe car. So what really is going on here? In his brief, defendant maintains that the "police conduct. . . was motivated primarily by race." Based on the entire sequence, one unfortunateconclusion that may reasonably be drawn is that the actions of the officers may have been, atleast implicitly, motivated by the race of the Chevy occupants.
And that is the reason that we write separately, for it is essential that this Court emphasizethat any such motivation will not be countenanced. We are certainly mindful that the Court ofAppeals in People v Robinson (97 NY2d 341 [2001]) held that a police officer may stopa vehicle where there is probable cause to believe that the driver has committed a trafficinfraction, even when the primary reason for the stop is to conduct another investigation, withoutviolating either US Constitution Fourth Amendment or NY Constitution, article I,§ 12. There is, however, a marked difference between the asserted factual pretext toinvestigate a robbery in Robinson and the concern raised here, i.e., that undertones ofracial bias may explain the arresting officer's failure to just make a routine traffic stop. Althoughthe outcome in this particular case will not change, we would be remiss in not taking thisopportunity to emphasize that bias, racial or otherwise, will not be allowed to legitimatize theunconstitutional intrusion upon any citizen's freedom of movement.
Aarons, J., concurs. Ordered that the judgment is affirmed.