AD1 order dated January 22, 2013, affirming judgment of conviction. Decision below: 126 AD3d 626, 5 NYS3d 430. Acosta, J. (AD dissenter), granted leave June 18, 2015. (Taken off SSM.)

ISSUE PRESENTED: Whether, under People v. Torres - - which allows police to conduct a protective search of a car only where the officers (1) have reasonable suspicion to believe a crime has been committed and (2) have an articulable basis to fear for their own safety - - police may search a car when the driver has committed a traffic infraction - - not a crime, there by failing to meet prong one of the Torres rule. (Assigned counsel: Rachel T. Goldberg & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issues Presented: Mr. Hardee raised two related car-stop issues:

 

1. Whether there was any record support for the trial court’s finding that there was (1) a substantial likelihood that the car contained a weapon or (2) an actual and specific danger to police where Mr. Hardee had been removed, frisked, and moved to the back of the car, and where no additional facts took this scenario outside the People v. Torres rule. 74 N.Y.2d 224 (1989).

 

2. Whether the traffic infraction and Mr. Hardee’s nervous behavior failed to furnish the requisite reasonable suspicion to justify the protective car search.

 

Held: In a brief memorandum decision, the Court found that whether there was a “substantial likelihood” of a weapon in the car that presented an “actual and specific” danger to the officers was a mixed question of law and fact that it had no power to decide. Therefore, the findings of the Appellate Division, for which the Court found record support, stood.

 

CAL Observes: The Court was split, to the point that two rounds of argument were called for to ultimately decide the issue. This split revolved around not only the merits but also something that has motivated much of the Court’s recent jurisprudence: the question of whether it has jurisdiction to decide an issue or whether cases will be determined on threshold questions such as preservation or mixed-question rules. Rather than reaching the merits, the Court has disposed of many cases—including this one—at the threshold.

 

Animating the dissent here was that the Court had the obligation—and the authority—to determine whether the People had proffered enough to meet the minimum standard for legal police conduct. Here, Judge Stein, writing for herself and two others, answered no.

 

The undisputed facts, as recounted by the dissent, were as follows. Three officers had stopped Mr. Hardee for driving over the speed limit and changing lanes without signaling. He admitted having open alcohol in the car and appeared “hyper.” In addition, Mr. Hardee looked around his car, including over his shoulder into the back seat, and at the officers. They requested that he step out of the car, and he peacefully complied after initially refusing. Though Mr. Hardee appeared nervous, he cooperated during the frisk, which yielded nothing, and when the officers asked him to move to the back of the car, where two officers guarded him. When he looked back at the car twice, he was handcuffed. Meanwhile, the third officer asked the passenger to step out, and she was moved to the back of the car too. That officer, before even realizing that Mr. Hardee was being handcuffed, went into the backseat and retrieved a bag from which he extracted a gun.

 

Reviewing the Torres rule and its applications, the dissent concluded that only where a defendant had evinced a willingness to harm others and attempted to hide something was the search justified. Mr. Hardee’s case contained no facts establishing these plus factors. Nor, for that matter, was there reasonable suspicion to justify his search in the first instance. The effect of the majority deferring to the lower courts’ findings was to unjustifiably broaden what was meant to be a limited exception to the rule that cars cannot be searched absent probable cause.