S.D.N.Y.: Mistaken but reasonable stop of a NYC livery cab under anti-robbery program was valid

NYC has a program where livery cabs opt to be stopped for protection of the driver from robbery. The livery cab owner has to opt in and there are decals for the police to see. This livery cab had a decal from its prior owner but this owner had not opted in. The stop was still objectively reasonable because the mistake was reasonable, and the officer’s plain view of a gun between the feet of the passenger was sustained. The failure to comply with some program details was not sufficient to suppress the search. United States v. Edwards, 2012 U.S. Dist. LEXIS 110344 (S.D. N.Y. August 6, 2012).* Describing the program: “In People v. Abad, 98 N.Y.2d 12, 17, 771 N.E.2d 235, 744 N.Y.S.2d 353 (2002), the New York Court of Appeals held that TRIP ‘properly balances the competing interests under Brown.’”

Even if Officer 1 had failed to ask the driver to open the passenger door, the fact that he had seen the portion of a gun in plain view at Edwards’ feet provided “independent reason to detain [him].” Abad, 98 N.Y.2d at 18. Furthermore, the fact that Officer 1 may not have specifically inquired about the driver’s safety is insufficient to suggest that the stop was unlawful, particularly in light of the fact that the officer had already identified the potential danger when he observed the gun’s hammer while approaching the vehicle and pointing his flashlight into the interior of the car.

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Finally, Edwards contends that the stop is unlawful because the officers failed to record the stop in an activity log, as required by the TRIP protocol. The officer’s failure in this instance to complete a separate TRIP log is not sufficient to invalidate the stop. The purpose of the requirement is “to afford[] the possibility of post-stop judicial review to the extent questions are raised as to the actual operation of the program,” Abad, 98 N.Y.2d at 18 (internal quotation marks omitted). In this case, Edwards was afforded considerable post-stop judicial review, including the opportunity to cross-examine the officers who arrested him. The Government also provided, at the evidentiary hearing, Officer 1’s contemporaneous record of the stop in his regular notebook. The absence of an official activity log thus did not deprive the Court of the ability to review the facts of the stop as recorded by the arresting officer.