NY2: Def’s stop exceeded reasonableness; search reversed

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).

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