People v. Elam

Sullivan, J.

(dissenting). On March 23, 1989, at approximately 9:30 A.M., the arresting officer, assigned with his partner to anticrime patrol, in plain clothes and an unmarked car, observed a white 1988 Nissan Stanza drive past him on West Fordham Road in the Bronx. The arresting officer noticed that the Nissan’s rear passenger side vent window was "broken out” and that the rubber molding was dangling from the window. In fact, the window was missing.1 As a trained police officer who had attended auto crime school after his training at the police academy and had made approximately 40 arrests involving stolen vehicles, he suspected from the condition of the window that the vehicle was stolen. Thus, he and his partner began to follow the Nissan. As they followed for approximately 1V¿ miles, the officers observed that the Nissan changed lanes "rather erratically,” and was being *236driven "pretty fast” through traffic. As they drove, the officers radioed "Central Communications” to ascertain if the vehicle had been reported stolen. "Central” informed the officers that it had not. The arresting officer nevertheless still believed that the Nissan might have been stolen but not yet officially reported and recorded as such.

The officers stopped the vehicle, and the arresting officer approached the car on the driver’s side and asked defendant, the driver, to produce his license, registration and insurance card. Defendant reached under his seat and produced an insurance card and registration. Concerned because of the ease with which defendant was able to reach underneath his seat, the arresting officer, for safety reasons, requested that defendant step out of the vehicle and show him the documents at the back of the car.

At the rear of the car, defendant handed the insurance card and registration to the arresting officer, who asked for his driver’s license. Defendant reached into his right front jacket pocket, leaned his upper body backwards to the right, and stepped back a foot or two from the officer. The arresting officer was startled by the quickness of defendant’s movements. He also noticed a bulge in defendant’s jacket pocket. Fearful that defendant might be reaching for a weapon, he grabbed defendant’s pocket with defendant’s hand still in it. Defendant was holding onto a hard object that, in the officer’s mind, could have been a weapon. The arresting officer called for assistance. As his partner grabbed defendant’s right arm, the arresting officer ordered defendant to remove his hand from his pocket. Defendant complied. The arresting officer then reached into defendant’s pocket and removed a .25 caliber automatic revolver. Later, at the precinct, after twice being advised of his Miranda rights and agreeing to answer questions, defendant stated that he carried the gun for protection since he had recently been shot during a robbery attempt. In fact, defendant stated, his car still had bullet holes in it from the incident. When asked if he wanted the robbers arrested, defendant answered no. He refused to discuss the matter any further.

Defendant moved to suppress both the gun and his station house statements as the tainted fruit of an illegal police stop of his vehicle. After a suppression hearing at which the foregoing facts were elicited and credited, the court denied defendant’s motion, finding that the Nissan’s broken rear vent window and dangling rubber molding, in conjunction with *237defendant’s erratic and fast driving through traffic, provided the arresting officer, trained in auto crime, with reasonable suspicion to believe that defendant had recently stolen the vehicle. Thus, the court found, the stop of defendant’s car was reasonable. The court also found that based on defendant’s actions when stopped, the arresting officer acted reasonably in placing his hand on defendant’s jacket and removing the gun from his pocket. Defendant thereafter pleaded guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of the indictment and in exchange for a promised sentence, which eventually was imposed. This appeal, in which defendant raises the suppression issue, followed. I would affirm.

Tacitly conceding that once defendant was stopped the officers acted reasonably in ordering him out of the car and ultimately seizing the revolver he was carrying, both defendant and the majority challenge only the hearing court’s determination that the initial stop of defendant’s car was justified by reasonable suspicion. That conclusion is well supported by the record.

The arresting officer observed defendant as he passed in a car with a "broken out” rear vent window and rubber molding dangling therefrom. Specially trained in stolen cars, he knew that such a condition is an indication that the vehicle has been stolen. For that reason, he and his partner followed defendant for approximately a mile and one half as he drove "rather erratically” and "pretty fast” through traffic. During this time, the officers checked with Central Communications for a stolen vehicle report. Although the car had not been reported stolen, their suspicions were not allayed since, based on their experience and training, they knew that if the vehicle had recently been stolen, a report might not yet have been received by Central.

Thus, based upon "objective evidence” of criminality (People v Sobotker, 43 NY2d 559, 564) — specific articulable facts, together with the rational inferences drawn therefrom by a police officer specially trained in auto crime — and not merely, as the majority finds, a " 'hunch’ ” (supra, at 564), these officers had reasonable suspicion that defendant had been or was engaged in criminal activity, justifying a stop of the vehicle for an investigative inquiry. (See, e.g., supra, at 563; People v Cantor, 36 NY2d 106; People v Ingle, 36 NY2d 413.) Of course, if Central Communications had informed the officers that the car had indeed been reported stolen, they then *238would have had virtually prima facie proof that defendant had committed a crime. This, however, is not the standard required for an investigative stop.

That there may be an innocent explanation for the "broken out” window and dangling rubber molding does not detract from the reasonableness of the officers’ suspicion. For example, in People v Vasquez (106 AD2d 327, affd 66 NY2d 968), this court found proper the police stop of a vehicle and the requirement that the driver produce his license and registration in light of a dangling license plate attached only by a rope.2 One of the arresting officers testified that this mode of license attachment was frequently used on stolen cars, but clearly, the inference of criminality was not the only one that could be drawn from a license plate attached in such a manner. In this case, in contrast, the inference of criminality is the only one which can reasonably be drawn from the missing car window since the absence of damage to the surrounding area makes it highly unlikely that this condition was the result of an accident. Although the officers could not have been certain that the criminal conduct — vandalism or theft of the car’s contents — was committed by the driver, one could reasonably infer from the absence of any temporary covering that the criminal conduct was of recent vintage.

The hearing court also relied on defendant’s erratic and fast driving through traffic. While driving erratically may not be sufficient to justify a stop on suspicion of a traffic violation, the officers did not need a traffic violation to justify their actions. They already had reasonable suspicion to stop defendant to investigate whether the car was stolen. His erratic and fast driving merely lent additional support to the officers’ suspicion that defendant had committed or was committing a crime. In any event, car stops predicated on erratic driving have been upheld. (See, e.g., People v Scanlon, 59 AD2d 788.)

The officers’ conduct, from their initial observation of defendant’s vehicle until the stop, was reasonable and the stop *239justified. Equally proper was their subsequent conduct, which is not challenged. Accordingly, the judgment of conviction should be affirmed.

Milonas and Asch, JJ., concur with Murphy, P. J.; Asch, J., also concurs in a separate opinion; Sullivan and Rosenberger, JJ., dissent in an opinion by Sullivan, J.

Judgment, Supreme Court, Bronx County, rendered January 5, 1990, convicting defendant upon his plea of guilty of attempted criminal possession of a weapon in the third degree and sentencing him as a mandatory persistent violent felony offender to a term of imprisonment of two years to life, reversed, on the law, the motion to suppress granted and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

. A photograph of the car which was introduced in evidence at the suppression hearing has been furnished to this court as an exhibit.

. The dissenters in Vasquez (Murphy, P. J., and Fein, J.) concluded that while "[t]he dangling license plate may have provided an articulable basis for approaching defendant and asking to see his license and registration!,] * ** * there was no justification for leaning into the vehicle and looking around” (supra, at 339); the dissenters did "not dispute! ] that a threshold inquiry to ascertain from the passenger the name of the owner of the vehicle was lawful” (supra, at 338). The dissent thus would have granted suppression only on the ground that the officer’s subsequent conduct constituted an impermissible intrusion. As noted, that is not the case here.