This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 49
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 NY2d 707, 711 [1997], quoting


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                               - 2 -                          No. 49

People v Torres, 74 NY2d 224, 231 n 4 [1989]) presents a mixed
question of law and fact (see People v Omowale, 18 NY3d 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 NY2d 55,
57-59 [2002]; see also Omowale, 18 NY3d at 827, affg 83 AD3d 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 NY3d 440, 448
[2010], cert denied 562 US 931 [2010]).   Defendant's remaining
contention is not preserved for appellate review (see CPL 470.05
[2]; People v Hawkins, 11 NY3d 484, 491-493 [2008]).




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People v Stanley Hardee
No. 49




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 NY2d 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
NY3d 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.


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                               - 2 -                            No. 49

                                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


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                               - 3 -                        No. 49

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


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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.   Defendant's subsequent motion for reargument was denied.
Thereafter, defendant pleaded guilty to criminal possession of a
weapon in the second degree.
          Upon defendant's appeal, the Appellate Division
affirmed the judgment of conviction, with one Justice dissenting
(126 AD3d 626 [1st Dept 2015]).    The majority held, as relevant
here, that "defendant's actions both inside and outside of the
vehicle created a 'perceptible risk' and supported a reasonable
conclusion that a weapon that posed an actual and specific danger


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to their safety was secreted" in the vehicle (id. at 628, quoting
People v Mundo, 99 NY2d 55, 59 [2002]).   The dissenting Justice
disagreed, and would have held that defendant was entitled to
suppression of the weapon because the evidence of his
nervousness, glances into the back seat, and momentary failure to
comply with the officers' directives to exit the vehicle was "not
sufficient to lead to a reasonable conclusion that a weapon
located within the car presented an actual and specific danger to
the officers' safety so as to justify a limited search of the car
after defendant had been removed from the car and frisked without
incident" (id.).   The dissenting Justice granted defendant leave
to appeal to this Court.
                                II.
          "[T]he use of a vehicle upon a public way does not
effect a complete surrender of any objectively reasonable,
socially acceptable privacy expectation" (People v Weaver, 12
NY3d 433, 444 [2009]).   "A police officer's entry into a
citizen's automobile and his [or her] inspection of personal
effects located within are significant encroachments upon that
citizen's privacy interests" (People v Torres, 74 NY2d 224,
229-230 [1989]).   Thus, "such intrusions must be both justified
in their inception and reasonably related in scope and intensity
to the circumstances which rendered their initiation permissible"
(id. at 230; see People v Moore, 6 NY3d 496, 498 [2006]).
          It is settled that, "absent probable cause, it is


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unlawful for a police officer to invade the interior of a stopped
vehicle once the suspects have been removed and patted down
without incident, as any immediate threat to the officers' safety
has consequently been eliminated" (Mundo, 99 NY2d at 58).     An
exception to this rule provides for a limited protective search
of the vehicle for weapons where "facts revealed during a proper
inquiry or other information gathered during the course of the
encounter lead to the conclusion that a weapon located within the
vehicle presents an actual and specific danger to the officers'
safety" (Torres, 74 NY2d at 231 n 4).    "[I]n order for there to
be an 'actual and specific' danger, there must be a 'substantial'
'likelihood of a weapon in the car'" (Mundo, 99 NY2d at 61,
quoting People v Carvey, 89 NY2d 707, 711 [1997]).
          We have reviewed the parameters of this exception in
several cases.    In People v Torres, the police received a
telephone tip from an anonymous caller indicating that the
defendant, who was wanted on homicide charges, could be found at
a specific location and that he was carrying a weapon in a bag
(74 NY2d at 226).    Police officers observed the defendant enter
his car at the location provided by the tip, carrying a nylon
shoulder bag.    Officers approached the vehicle, ordered the
defendant and passenger out of the car, frisked them, then
reached into the car to retrieve the shoulder bag; a search of
the bag revealed a firearm and ammunition.    We held that the
officer's entry into the vehicle to retrieve the bag was unlawful


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because, at the time of the search, "the suspects had already
been removed from the car" and "patted down without incident"
(id. at 230).   In so holding, we rejected the People's reliance
on the theoretical possibility that the suspects may have re-
entered the vehicle after completion of the stop and threatened
the departing police officers' safety (see generally Michigan v
Long, 463 US 1032, 1051-1052 [1983]).   Further, while we
acknowledged that the officers "may have had a reasonable basis
for suspecting the presence of a gun," we observed that, in light
of the suspect's isolation from the interior of the vehicle
during the questioning by the police, "[a]ny residual fear that
the detectives might have had about the suspects' ability to
break away and retrieve the [firearm] could have been eliminated
by taking the far less intrusive step of asking the suspects to
move away from the vicinity of the car" (Torres, 74 NY2d at 230).
          Subsequently, in People v Carvey, we upheld as lawful a
limited protective search following a traffic stop where, after
the defendant had been removed from the vehicle and patted down,
it was determined that he was wearing a bulletproof vest (see 89
NY2d at 708).   We distinguished Torres by observing that the
bulletproof vest was "uniquely indicative of [the defendant's]
present readiness to use an available firearm," and held that the
vest, "when coupled with the police observation of defendant
furtively placing something beneath his seat, warranted the
conclusion that a weapon located in the vehicle presented an


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actual and specific threat to the officers' safety" (id. at 709).
Although the search in Carvey was determined to be justified
under those circumstances, we explained that the exception
articulated in Torres is a "narrow" one to be applied only where
"the likelihood of a weapon in the car [is] substantial and the
danger to the officer's safety 'actual and specific'" (id. at
710-711).    We also strongly emphasized that a reasonable
suspicion of the presence of a weapon, alone, "will not suffice,"
underscoring that such suspicion must be coupled with specific
facts indicating an actual threat to officer safety (id. at 711),
and that, otherwise, the general rule that probable cause is
required for such an intrusion applies.
            In People v Mundo, we again reaffirmed the rule in
Torres that probable cause is required for even a limited search
of a vehicle absent an actual and specific threat to officer
safety (see 99 NY2d at 60-61).    In that case, when two police
officers attempted to pull over a vehicle in which the defendant
was a passenger, it was necessary for them to give chase three
times before the vehicle fully complied with the directive to
stop (see id. at 57).    During the third pursuit, the vehicle
almost struck a pedestrian, and the officers saw the defendant
turn around, face them, and then make furtive movements
indicating that he was secreting something (see id.).    After the
vehicle was finally stopped, the occupants were removed and
patted down; one officer pulled down the trunk divider in the


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back seat, where the defendant had been seen hiding something,
and discovered a stash of drugs (see id.).    We affirmed the
denial of the defendant's suppression motion only in light of
"[t]he blatant disregard of the officers' directions, [and] the
obvious lack of concern for the safety of others[] [which,] in
addition to defendant's suspicious acts, created a perceptible
risk to the officers that a weapon located within the vehicle
would be a specific danger to their safety" (Mundo, 99 NY2d at
59).   Likewise, we found record support for a protective search
in People v Omowale based on the defendant driver's failure to
immediately stop the vehicle, the police officers' observations
of the passenger secreting something in the center console after
he saw them and, significantly, movements by the passenger toward
that same center console (where a handgun was found) as the
police officers approached (see 83 AD3d 614, 617 [1st Dept 2011],
affd 18 NY3d 825 [2011]).
                               III.
           Undoubtedly, when faced with nervousness and furtive
movements or glances, it may be difficult for police officers to
determine whether suspicious behavior is merely ordinary
nervousness related to police encounters, indicates the presence
of a weapon, or suggests the existence of some other contraband
of which defendant fears detection.    Given "the reality of the
day, including the risks faced by police officers in street
encounters in the course of discharging their official duties"


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(Torres, 74 NY2d at 231), I do not suggest that the rule
governing protective searches requires that a suspect actually
retrieve or attempt to retrieve a weapon before an officer's fear
of an actual and specific threat will be deemed justified.
Nevertheless, to justify a protective search, our precedent
requires a demonstration of some objective facts that support a
belief that the defendant or other occupants of the vehicle
present a danger to officer safety because they may access a
weapon in the vehicle.   Indeed, this critical element is the very
basis for allowing a warrantless protective search without
probable cause, and its absence here is clearly illustrated by a
comparison of the facts of this case with those presented in
Carvey, Mundo, and Omowale.
          In Carvey, the bulletproof vest, combined with the
defendant's act of furtively placing something under his seat --
which implied that the gun was previously held at ready -- was
sufficient to justify the protective search because it suggested
"more than the presence of a deadly weapon -- it demonstrate[d]
[the defendant's] readiness and willingness to use a deadly
weapon" (89 NY2d at 712).   In Mundo, the failure of the driver to
stop the vehicle and the repeated attempts to evade the police,
which resulted in a near collision with a pedestrian,
demonstrated a willingness to endanger the safety of others (see
99 NY2d at 57).   Taken together with the defendant's furtive
movements of secreting an object in the back seat -- which again


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indicated that the hidden item had been held at the ready -- we
upheld the denial of the defendant's suppression motion, based on
the officers' objectively reasonable concern that any weapon in
the vehicle presented an actual and specific safety threat to
them (see id. at 59).   Finally, in Omowale, the defendant's
failure to stop the vehicle, coupled with the passenger's
movements of secreting an object in the center console upon
seeing the police and act of moving towards that same spot as the
officers approached -- a movement that would make little sense
had some other type of contraband been hidden away -- provided a
reasonable basis for the protective search (18 NY3d at 825).
          Here, by contrast, no facts elicited at the hearing
established that, at the time of the search, defendant had
displayed any behavior that would give rise to a belief that a
weapon located in the vehicle presented an actual and specific
danger to the safety of the officers.   Thus, this case is
indistinguishable from Torres, where the officers may reasonably
have suspected the presence of a weapon, but there were no facts
indicating an actual and specific threat to their safety once
defendant was outside the vehicle, frisked, and moved away from
the interior of the car (74 NY2d at 227).   That is, even assuming
that there was a reasonable basis to believe that there was a
weapon in the car -- a factor which I do not concede is satisfied
here -- there is no record support for a finding that a
protective search was justified.


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           Defendant did not evade the police vehicle and
immediately complied with the officers' signals to pull over
(compare Omowale, 18 NY3d at 825; Mundo, 99 NY2d at 58).    We have
previously cautioned, in the context of the narrow exception
allowing for warrantless protective searches, that "[a] motorist
who exceeds the speed limit does not thereby indicate any
propensity for violence or iniquity, and the officer who stops
the speeder has not even the slightest cause for thinking that he
is in danger of being assaulted" (People v Marsh, 20 NY2d 98, 101
[1967]).   Here, there was no testimony that defendant's manner of
driving was unusual for a major four-lane avenue in Manhattan, or
that any specific pedestrians or motorists were endangered
thereby (compare Mundo, 99 NY2d at 59).   In any event, to the
extent that defendant's driving exhibited a disregard for the
safety of others in the abstract and was sufficient to justify a
traffic stop, such conduct did not justify a belief that the
presence of a weapon posed an actual and specific threat to
officer safety.   It, therefore, did not provide a lawful
predicate for a protective search.
           Nor was defendant's nervousness sufficient to justify a
protective search (cf. People v Garcia, 20 NY3d 317, 320 [2012];
People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868
[1995]).   Significantly, defendant did not move towards the back
seat to secrete an object, or move towards the bag or any other
area of the vehicle to retrieve anything, either before or after


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the officers approached (compare Omowale 18 NY3d at 825; Mundo,
99 NY2d at 57; Carvey, 89 NY2d at 709-710).   In fact, the
officers conceded that defendant was honest about having alcohol
in the vehicle and made no attempt to hide it.   Although he
briefly refused to exit the vehicle, he apparently did so without
hostility and he then peacefully complied with that directive, as
well as with the subsequent frisk and the officers' request that
he move to the rear bumper of the vehicle.    It cannot reasonably
be disputed that, up to that point, none of defendant's behavior
provided an objective basis for a reasonable belief that a weapon
located in the vehicle from which defendant had been isolated
presented an "actual and specific danger to the officers' safety"
(Torres, 74 NY2d at 231 n 4) and, therefore, no search was
justified.
           Finally, defendant's subsequent resistance to being
handcuffed at the rear bumper of the vehicle cannot be used to
justify the protective search because the officer who conducted
the search was admittedly unaware of any such resistance when he
began the search.   It is beyond cavil that a search must be
justified at the time it is commenced (see Torres, 74 NY2d at
230), and "[d]efendant's later conduct cannot validate an
encounter that was not justified at its inception" (Moore, 6 NY3d
at 498).   Accordingly, as in Torres, the appropriate action to
address any residual fear experienced by the officers would have
been "the far less intrusive step of asking [defendant] to move


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[further] away from the vicinity of the car," not a search of the
vehicle after both of its occupants had already been removed, and
defendant had been patted down, without incident (74 NY2d at
230).
                                   IV.
            In short, the majority ignores the distinction we have
always drawn between Torres and those cases in which we have
upheld protective searches -- namely, the requirement of an
actual and specific threat to officer safety from a weapon
located in the vehicle.    Furthermore, the majority's ruling
disregards the narrowness of the warrant exception as articulated
in, and demonstrated by, our prior case law, and it unduly
broadens the exception for a protective search beyond its purpose
and rationale.   In the absence of any record facts supporting the
majority's conclusion that there was a substantial likelihood of
a weapon in the vehicle that presented an actual and specific
threat to the officers, Torres controls and the firearm should
have been suppressed (see 74 NY2d at 230).         I, therefore,
dissent.
*   *   *    *   *   *    *   *     *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Fahey, Garcia and Feinman concur. Judge Stein dissents in an
opinion, in which Judges Rivera and Wilson concur.

Decided November 16, 2017




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