AD1 order dated April 26, 2011, reversing judgmetn of conviction, granting the motin to suppress, and dismissing the information. Decision below: 85 AD3d 28, 923 NYS2d 433. Smith J., granted leave to People January 18, 2012.

ISSUES PRESENTED: (1) Whether the nervousness of occupants of a car stopped for a traffic infraction gives the police the right to ask whether they have any weapons. (2) The "inevitable discovery" doctrine. (Assigned counsel" Steven Banks, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038).

Issue: Whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons.

Held: No, a police officer may not ask the occupants of a lawfully stopped vehicle if they possess any weapons, unless the officer has a founded suspicion for the inquiry.

CAL observes: In Pennsylvania v. Mims, 434 U.S. 106 (1977), and People v. Robinson, 74 N.Y.2d 773, 775 (1989), the US Supreme Court and the New York Court of Appeals held that – because of "the heightened dangers faced by investigating police officers during traffic stops" a police officer may order the driver and other occupants of a lawfully stopped vehicle to get out the car.

In Garcia, a majority of the Court confirmed that the Mims/Robinson rule is a limited one, and that New York’s DeBour/Hollman framework applies to other aspect of a car stop. As the Court put it, "Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot."