People v. Harrison

Appeal by the People from an order of the Supreme Court, Queens County (Chetta, J.), dated June 13, 1980, which, after a hearing, granted defendants’ motions to suppress physical evidence. Order affirmed. On January 4, 1979, at approximately 1:15 A.M., Police Officer Mark Stahl and his partner, Officer Dillon, were patrolling in an unmarked police car, in the vicinity of Cross Bay Boulevard and Belt Parkway *966in Queens. They observed a 1978 blue Chrysler Cordoba, with a “Z” license plate (indicating that it was a rented vehicle), pass them on the right. Their suspicions were aroused because the vehicle was very dirty, and they trailed it for several blocks. Three male blacks, one wearing a red hat, were seen in the vehicle. When the Cordoba parked, on a street on which a bar and grill was located, Stahl parked his vehicle behind it. Stahl and Dillon exited their car and approached the Cordoba, one officer on each side. Stahl ordered the defendant Harrison, who was about to get out of the Cordoba, to remain in the -car. Gilbert Williams, who was in the backseat, was told to sit up. After identifying himself as a police officer, Stahl asked the defendant Cabey, the driver of the vehicle, for his license and registration. Cabey could not produce either, but Harrison was able to find his driver’s license. Stahl and Dillon returned to their car, ran a plate check on the Cordoba, and learned that the car had not been stolen. While at the police car, Stahl checked a piece of paper on which he had taken notes from a police briefing. He saw that three black men, one with a red hat, driving a late model blue-green Cordoba, had been involved in a robbery on the previous night, approximately one mile from where the defendants had stopped. Officer Stahl returned to the Cordoba, shined his flashlight through the window at Harrison’s feet, and observed a .22 caliber revolver on the floor of the car. Stahl drew his gun and ordered the three men out of the Cordoba. A search of the car revealed a second .22 caliber handgun, and a .38 caliber gun. All three men were placed under arrest. Cabey and Harrison were charged with various weapons offenses. After a hearing, the guns were suppressed on the ground that they had been the product of unlawful police conduct. The instant appeal ensued. There is no merit to the District Attorney’s contention that the police conduct prior to the defendants’ arrest amounted to “an extremely minor intrusion.” The defendants’ vehicle was approached by two officers, who walked to opposite sides of the car. The defendant Harrison was directed to remain in the car, the other passenger, Gilbert Williams, was told to sit up and the driver, defendant Cabey, was asked to produce a license and registration. Although no force or threat of force was used, it was clearly conveyed to the defendants and Williams that they were not free to leave. The police conduct amounted to a significant interruption of the defendants’ liberty of movement: a “stop” within the meaning of GPL 140.50 and a “seizure” within the meaning of the Fourth Amendment (see People v Cantor, 36 NY2d 106; see, also, United States v Mendenhall, 446 US 544). As such, it can be justified only by a showing that the police had a reasonable suspicion that the defendants were committing, had committed, or were about to commit a crime (see People v Cantor, supra). On the record before us, we cannot say that there was adequate proof of reasonable suspicion. There was an indication that the defendants, and the vehicle in which they were riding, fit the description of the perpetrators involved in the recent robbery and the car used in connection with it. However, the testimony of Officer Stahl, who had learned of the robbery in a police department briefing, constituted insufficient proof that the defendants were reasonably suspected of the robbery (see People v Havelka, 45 NY2d 636). Nor can the stop be justified upon the ground that the license plate of the Cordoba was apparently dangling, in violation of section 402 of the Vehicle and Traffic Law. At the hearing, Officer Stahl candidly admitted that he was unaware that the hanging license plate was a violation, and that he had not mentioned the plate in any of his prior notes or memoranda. In the circumstances, the hearing court properly concluded that the condition of the license plate did not motivate the police action, and can therefore not be used to justify the stop (see People v Allende, 39 NY2d 474). Finally, we do not believe that the condition of the car, in and of itself, provided a basis for the stop. People v Roman (74 AD2d 589, revd on other *967grounds 53 NY2d 39) is clearly distinguishable. In Roman, the rented vehicle, in addition to being very dirty, had a damaged front end and was spotted in an area known for “dumping” cars. We held, and the Court of Appeals agreed, that the police were justified in stopping the vehicle. In the case at bar, by contrast, the police conduct appears to have been motivated solely by the facts that the vehicle was rented and very dirty. These facts without more, do not amount to reasonable suspicion of criminal activity. Since the guns were clearly the fruits of the initial, unlawful stop, their suppression was required. Titone, J.P., Rabin and Margett, JJ., concur.