NY4: “[T]he police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion”

“[T]he police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot.” The search here was invalid. People v. Wideman, 2014 NY Slip Op 06698, 2014 N.Y. App. Div. LEXIS 6678 (4th Dept. October 3, 2014):

The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot (see People v Garcia, 20 NY3d 317, 324, 983 N.E.2d 259, 959 N.Y.S.2d 464). It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion (see People v Battaglia, 86 NY2d 755, 756, 655 N.E.2d 169, 631 N.Y.S.2d 128; People v Mercado, 120 AD3d 441, 442-443). Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court’s finding that the officers smelled marihuana as soon as they approached the vehicle. The officer who engaged defendant frankly acknowledged at the hearing that he did not know the relevant sequence of events. Although the other officer testified that he smelled raw marihuana while his partner was talking to defendant, that officer did not testify that he smelled the marihuana before his partner asked whether defendant had any guns or drugs and asked for consent to search. In any event, it cannot be assumed that the two officers smelled the marihuana at the same time. We also note that neither officer testified that he detected a “strong odor” of marihuana while standing outside the vehicle, as the court stated in its finding of fact. The only testimony about a “strong odor” of marihuana came from the officer who conducted the search, and he testified that he made that observation while he was inside the vehicle conducting the search.