For the reasons set forth in this Decision, defendant’s motion to suppress the gun seized from defendant’s book bag as well as statements made by defendant during a police stop is hereby denied. The evidence presented by the People at the suppression hearing reveals that an encounter initiated by reason of a lawful car stop for a seatbelt violation initially proceeded as a lawful level two inquiry and request for identification, then escalated to a justified level three limited protective search, and ultimately led to a level four seizure and arrest for possession of a loaded firearm. Each elevation in the actions of the police advanced incrementally on the basis of suspicious conduct by defendant and information revealed to the officers, which inevitably led to the recovery of the weapon from defendant’s book bag. Following is a summary of the steps that constitute the lawful actions of the police: 1. Defendant is observed by the officers seated in a taxi near midnight and not wearing a seat belt, which provides the officers with a lawful basis for stopping the taxi and addressing defendant regarding this violation. Because defendant has plainly violated the law, level two inquiries may be made. 2. Two officers, both with active body cams functioning, approach either side of the taxi at the rear seat location (a third officer approaches the driver) and address defendant regarding the seat belt violation. Their immediate observations are: a. Defendant is kicking a book bag, located on the floor by his feet rather than on the seat next to him, attempting to push it under the front seat where it will not be visible. b. Defendant continues to scroll on his cell phone, and though it is not clear what precisely he is doing, it appears to be an effort to avoid engaging with the officers, with whom he does not make eye contact despite their effort to speak to him. c. Having focused on the book bag, Officer Kirk asks defendant, who is clearly of schoolage, whether he is coming from school; defendant replies that he is coming from his sister’s home. This is occurring late at night on a Tuesday. d. During this point in the encounter and thereafter, defendant is observed to be very nervous and is sweating profusely. e. Sgt. Pinney on the driver’s side asks defendant to provide his identification, and as defendant hands over the papers, the Sgt. observes that defendant’s hand is shaking noticeably while continuing to perspire. f. Sgt. Pinney runs defendant’s identification information on his department issued cellphone for a records check and learns that defendant has been arrested in June for possession of a firearm (which remains an open indictment). g. The Sgt. orders defendant to step out of the taxi and stands near the driver’s side rear door. 3. The officer conducts a protective frisk — having elevated the encounter from level two to level three because of the occurrences described in 2 above — as defendant is standing at the threshold to the taxi. Nothing is found during the frisk, and no further search of defendant’s person is conducted. 4. Defendant is directed to step a short distance to the rear of the car, but is not otherwise restrained, as the Sgt. reaches into the open car and moves the book bag from the floor to the seat. In doing so, he notices that it is unusually heavy. He touches the outside of the book bag and feels what he recognizes as the butt of a gun. Thereupon, he opens the book bag and discovers a large revolver inside. 5. The Sgt seizes the gun and gives a hand signal to the other officers with defendant to arrest and handcuff defendant. They see the signal and react, at which time defendant struggles but is subdued and placed under arrest. Issues have been raised at the suppression hearing challenging some of the factual allegations of the officer and the Sgt. in the hearing testimony. Having observed the witnesses, the Court concludes that both were exceedingly credible and that their accounts, essentially consistent with each other, present a fully believable scenario that is corroborated by the videos recorded on both body cams. The defense contends that the body cam footage does not fully the support the testimony, but the Court concludes otherwise and attributes any perceived absence of confirmation of every fact reported by the officers to reflect only limitations on the body cams’ resolution capabilities or on the momentary angle and position of the body cam and not on the truthfulness of the testifying officers. The Court also observes that both witnesses have stellar records as police officers, that both have had extensive experience in the policing of street violence and gun recovery, and that both acted throughout the encounter with commendable restraint consistent with their constitutional obligations, extending the level of intrusion only when the developing circumstances mandated such action. The right to remove defendant from the taxi and then to frisk defendant was justified in this case as a self-protective measure necessitated by the defendant’s nervousness and excessive perspiration, his telephone use even as he was questioned, his youthfulness and late-night presence in a taxi on a school night, the spike in illegal guns and murders throughout the Bronx and as testified to the increase of such crimes in this particular area, and most importantly, defendant’s suspicious efforts to conceal his book bag by attempting to push it under the front seat. These circumstances provided reasonable suspicion that a firearm was present and established the officers’ legitimate belief that a frisk was required for their safety. This is as true for the frisk of defendant’s book bag as it is for the frisk of defendant’s person. Defendant’s recent arrest for an illegal firearm in the Bronx was the icing on the cake that focused and elevated the concerns pertaining to defendant’s earlier attempt to secret his book bag under the front seat. At that moment, just seconds after the initial frisk, defendant remained in an unrestricted position just a few feet from the book bag, which remained fully accessible to him. To fail to take precautionary measures by performing a safety frisk of the book bag would create an unacceptable risk to the officers immediately and to the taxi driver later were defendant permitted to return to the cab without ensuring that the book bag did not contain a weapon. This Court regards as salient facts in support of the frisk of the book bag defendant’s proximity to the bag and the fact that this occurred in a taxi, on top of defendant’s own behavioral signals. That the book bag was frisked inside the taxi while defendant was outside is of no moment. Following People v. Mundo, 99 NY2d 55 (2002) and People v. Carvey, 89NY2d 707 (1997), any decision suggesting a search for weapons conducted while a suspect was outside a car was unreasonable was overruled or rendered of limited precedential value. In People v. Newman et al, 96 AD3d 34 (1st Dept. 2012), the Court reviewed the lawfulness of a limited search of a vehicle by shining a flashlight in an area where the police had seen the front passenger reaching in a suspicious manner at the initial stage of a lawful vehicle stop. As events evolved in the encounter, irregular conduct of the car’s occupants evoked discomfort by the officer, who, fearing for his safety in that the passenger might have been reaching for a weapon, ordered the defendants out of the car where all were subjected to a frisk for weapons. Nothing was recovered in the pat down, and the defendants were brought to the back of the car. Thereupon, one of the officers opened the driver’s side door and shined his flashlight under the front passenger seat and the driver’s seat where he had seen one of the defendants making a movement toward to find out what he was looking for under the seat. The officer discovered the handle of a gun under the passenger seat and alerted his fellow officers who placed defendants under arrest. The Appellate Division addressed as the primary issue whether “once defendant and the other occupants had been removed from the automobile, the police could lawfully commit the greater intrusion of reaching into the vehicle” (citing People v. Carvey, supra at 710). The Court held that intrusions into a vehicle after the occupants have been removed and frisked must center on “the totality of the circumstances” (Id. at 42). As this Court has discussed in detail above, there is ample support for the conclusion that under the totality of the circumstances, and indistinguishably from Newman, “1) there was a substantial likelihood that he had a weapon underneath his seat that2) posed an actual and specific danger to their safety.” (Id at 43). The remaining issues are not disputable. Having frisked the book bag and detecting what he knew to be the butt of a gun, this highly experienced Sgt. was fully justified in opening the book bag and retrieving the gun. Defendant was thereupon arrested (level four) upon probable cause that he had committed a violent felony in the presence of the officers. Regarding defendant’s statements during this encounter, while at a certain point he may have been in custody, the questions by the officers were designed only to clarify the situation and determine whether further police action was warranted, and therefore there was no interrogation that would necessitate Miranda warnings. For the above stated reasons, the motion to suppress is denied in all respects. Dated: June 14, 2022
