People v. Gil

OPINION OF THE COURT

Wallach, J.

The suppression court’s erroneous ruling, in this drug possession case, was based in part on an incomplete finding of facts. The unrefuted testimony in the record reveals that shortly after 9:00 p.m. on a late winter evening in 1992, uniformed Police Sergeant Gildea and Officer Fraiser chased and stopped a livery cab they had just observed running a red light on Fordham Road in the Bronx. Approaching with their weapons bolstered, Fraiser went to the driver’s side while Gildea took a position outside the passenger side, where he could observe the two occupants in the rear seat.

Defendant Pena, seated on the left side behind the driver, interrupted Fraiser’s conversation with the driver and sought to exit the vehicle, offering to show Fraiser identification that he was a college student. The first two times Pena tried to get out, Fraiser asked him to wait until Fraiser had finished speaking with the driver. On the third effort, Fraiser allowed Pena to exit onto the "dark and isolated” road. Pena was acting "a little nervous,” stepping farther out into the roadway, so Fraiser asked him to step back near the car. Instead, he kept backing toward the middle of the road before eventually producing an ID card from his wallet. As Fraiser studied the card, Pena suddenly lunged at the officer, knocking him against the police vehicle and onto the ground, before taking off on foot. Pena was soon captured by backup police after hopping a fence and crossing the traffic lanes of the Major Deegan Expressway.

Before Pena’s flight, both officers had noticed a large black canvas bag with a drawstring, on the seat between the passengers. As Fraiser was questioning the driver, defendant Gil, *101who was seated on the right side in the rear, picked up the bag, which appeared to be heavy, and placed it on his lap. Since Gildea could no longer see Gil’s right hand, and now concerned about the possibility of a concealed weapon, he placed his hand on his bolstered gun and asked Gil what was in the bag. Gil failed to answer, so Gildea then asked Gil to place his hands on the seat in front of him. Gil ignored two of these requests. As Pena exited the left side of the vehicle, Gildea, concerned that he could not cover Pena and watch Gil at the same time, asked the latter to exit the right side, again questioning him about the bag’s contents. Gil, who had also identified himself as a college student, got out, holding the bag, but then turned toward Gildea and suddenly "barreled into” him and tried to push past. Gildea wrestled Gil to the ground and radioed for help, as he spotted his partner running off in pursuit of Pena. The bag fell to the ground. (Fraiser later told the District Attorney that he believed the bag was recovered from the back seat of the car.) At that point, Gildea placed Gil under arrest for harassment, although he was never formally charged with that offense.

The bag contained textbooks and notebooks, a calculator, and "two brick-shaped objects”, about 5 inches by IV2 inches, wrapped in opaque brown tape in a manner "commonly used to package narcotics.” Later, during the arrest processing at the precinct, Gildea and Fraiser were discussing between themselves whether the confiscated material was heroin or cocaine when, according to Gildea, Gil volunteered that "it was cocaine.” Each of the defendants was charged with criminal possession of a controlled substance (two kilograms of cocaine) in the first degree, and resisting arrest.

The hearing court ruled that the police had acted lawfully in stopping the livery cab in the first place, but then suppressed the physical evidence (and the statement flowing from the subsequent arrest) on the ground that nothing following the stop gave the police reason to believe criminal activity was afoot. Since there was no basis for arrest, and the contraband was seized after the arrest, the physical evidence was held inadmissible, as was the "subsequent questioning” which led to Gil’s inculpatory utterance.

Every stop, search and seizure must be analyzed in a step-by-step fashion (see, People v De Bour, 40 NY2d 210), in light of the articulable facts, credible objective evidence, and rational inferences that flow therefrom (People v Hicks, 68 NY2d 234, 243). The hearing court correctly found that the initial *102stop was not pretextual, but rather was justified upon a clearly apparent violation of the Vehicle and Traffic Law (see, People v Ingle, 36 NY2d 413, 419). Once a valid traffic stop is established, security dictates that a police officer has a right to ask the driver or a suspect in a vehicle to alight (Pennsylvania v Mimms, 434 US 106, 110). Granted, defendants were neither driver nor suspect at this point. Whether defendants’ nervous motions in turning and looking at the approaching police justified such a minimal intrusion is beside the point because the initial approach used by these policemen was only to question the driver. All the police required of the passengers was that they keep their hands in plain view, a not unreasonable request in light of significant statistics on shootings of police during routine vehicular stops (see, United States v Robinson, 414 US 218, 234, n 5). And since the risk in such vehicular encounters is the same whether the occupant in question is a driver or a passenger, the police may even order passengers out of a car stopped for a traffic infraction, as a precautionary measure, during questioning of the driver (People v Robinson, 74 NY2d 773, cert denied 493 US 966; People v McLaurin, 70 NY2d 779), even absent a particularized belief that any of the occupants is armed (People v Rodriguez, 167 AD2d 122, lv denied 77 NY2d 843).

Here, ironically, the police did not initially ask the passengers to alight. The only "intrusion” upon the rear-seat occupants was Gildea’s order that Gil keep his hands in plain view. Only after Pena had prevailed upon Fraiser to let him get out on the left side did Gildea direct Gil to get out on the right side. At that precise moment, there were two passengers exiting the car—one at his own insistence, and the other upon the equally valid invitation of the police sergeant. A moment later, the situation rapidly escalated as each policeman was physically struck by the passenger on his side, thus justifying arrests, and the search and seizure incident thereto.

The suppression court, while crediting Fraiser’s account of Pena’s actions, completely ignored Gildea’s unrefuted testimony concerning Gil’s effort to push the police sergeant away and flee the moment he exited the vehicle.* This oversight was crucial, because the omitted testimony is what provided the basis for Gil’s immediate arrest, and consequent probable *103cause for search of his belongings (see, People v Belton, 55 NY2d 49). Even if the bag could be considered as having been abandoned in plain view on the back seat, it would still be subject to search incident to Gil’s arrest (People v Scott, 191 AD2d 200, affd 82 NY2d 729).

In short, using the De Bour template, the minimal police intrusion in this encounter was, at every level, an appropriate response to their observations and beliefs (People v Leung, 68 NY2d 734, 736).

Since our reversal of the suppression of physical evidence also removes the taint from Gil’s inculpatory utterance, we note additionally our disagreement with the hearing court’s description of that unsolicited admission as flowing from "subsequent questioning” of defendants.

The order of Supreme Court, Bronx County (John E. H. Stackhouse, J.), entered October 20, 1993, which granted defendants’ motions to suppress physical evidence and statements made to the police, should be reversed, on the law and the facts, the motions denied, and these indictments remanded for further proceedings.

The dissent has helpfully set forth the suppression court’s complete decision verbatim, thus exposing this glaring omission. The court’s sole reference to this rather critical event in the record was: "Meanwhile, as Mr. Gil exited the vehicle, he was arrested.”