Defendant’s stop exceeded the time necessary for its completion and became unreasonable. The product of the search can’t be used to justify it. [All the serious counts are reversed. Note: Defendant was convicted Sept. 26, 2013, 49½ months before this appeal was decided and he’s parole eligible in 2026.] People v. Newson, 2017 NY Slip Op 07752, 2017 N.Y. App. Div. LEXIS 7800 (2d Dept. Nov. 8, 2017):
Although the stop was justified by the traffic violations, the intrusiveness of the officer’s conduct exceeded that which is permissible during a normal traffic stop (see People v Woods, 189 AD2d 838, 842, 592 N.Y.S.2d 748; People v Mikel, 152 AD2d 603, 605, 543 N.Y.S.2d 712). The officer did not testify to any suspicious actions by the defendant, nor did he testify that he felt threatened in any way or offer any other justification for asking the defendant if there was anything illegal in the vehicle or for frisking the defendant (see People v Woods, 189 AD2d at 842; People v Mikel, 152 AD2d at 605).
Any subsequently acquired suspicion that the officer formed when he searched the Coach handbag, the cell phone, and the camera did not justify the officer’s question that preceded the search as to whether there was anything illegal in the vehicle (see People v Milaski, 62 NY2d 147, 155-156, 464 N.E.2d 472, 476 N.Y.S.2d 104; People v De Bour, 40 NY2d at 215-216). “[A] request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination. … Once [an] officer asks more pointed questions … the officer is no longer merely seeking information … [and the inquiry] must be supported by a founded suspicion that criminality is afoot” (People v Hollman, 79 NY2d 181, 185, 590 N.E.2d 204, 581 N.Y.S.2d 619). Here, the officer’s testimony demonstrated that his question to the defendant as to whether there was anything illegal in the vehicle was based on his observations of the traffic violations and on his speculation that the passenger, not the defendant, possibly matched the description of the man in the radio run. Those facts are insufficient to constitute founded suspicion that criminality was afoot (see People v Garcia, 20 NY3d at 324; People v De Bour, 40 NY2d at 225-226; People v Turriago, 219 AD2d 383, 387-388, 644 N.Y.S.2d 178, mod 90 NY2d 77, 681 N.E.2d 350, 659 N.Y.S.2d 183; People v Woods, 189 AD2d at 842). As the officer’s question was not supported by the requisite founded suspicion that criminality was afoot, the fruit of that unlawful inquiry must be suppressed (see People v Milaski, 62 NY2d at 155-156; People v De Bour, 40 NY2d at 217).
Thus, the Coach handbag, the cell phone, and the camera should have been suppressed as fruit of an illegal search, as well as the gun that was subsequently found upon an inventory of the vehicle (see People v Garcia, 20 NY3d at 324; People v Rossi, 80 NY2d 952, 954, 605 N.E.2d 359, 590 N.Y.S.2d 872; People v Smith, 98 AD3d 590, 592-593, 949 N.Y.S.2d 474; People v Woods, 189 AD2d at 842; see also People v Turriago, 219 AD2d at 391).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)