People v. Davis

130 A.D.2d 268, 519 N.Y.S.2d 358, 1987 N.Y. App. Div. LEXIS 47356

Opinions

OPINION OF THE COURT

Wallach, J.

On this appeal we are called upon to subject to careful scrutiny the procedures of that unit of the New York City Police Department assigned to the mission of suppressing taxicab robberies. The particular issue before us is whether the seizure of two handguns from the passenger compartment of a livery cab violated the constitutional rights of these defendants.

At the suppression hearing Police Officer Robert Biondo, a 15-year veteran of the New York City Police Department, testified that during the course of his 21A-year assignment to the street crime unit he was, on November 9, 1983, at about 7:30 in the evening, driving a yellow decoy medallion taxicab accompanied by Officers John Carberry and James Simrod. The basic assignment of the taxi squad street crime unit is prevention of assaults and robberies against cabdrivers particularly in high-crime areas. Parked eastbound at such an area, the intersection of 145th Street and Bradhurst Avenue in Manhattan, a livery cab passed the officers on the left with two male passengers in the back seat. As Officer Biondo looked in his rearview mirror and before the car passed, he observed that the livery cab was proceeding with its bright lights up, namely, with four headlight beams instead of the usual two. Biondo further testified that the use of bright beams as a signal for a cabdriver in distress had been widely publicized by the police to cab operators and had been in use about 10 years before this incident. In response to what he supposed was a distress signal, Biondo pulled his cab behind the livery vehicle, Officer Carberry activated an inside dashboard red flashing light, and by means of honking his horn and hitting his bright lights, Biondo signaled the livery cab to pull over and stop. In the course of the one-block pursuit with his car directly behind the livery cab, Officer Biondo testified that the passenger directly behind the driver looked over his right shoulder three times and made a quick forward bending motion (defendant Davis). Biondo also observed the other passenger sitting on the right-hand side of the vehicle look over his left shoulder and make a jamming motion with his right hand, working the right shoulder up and down (defendant Harris).

When the livery cab stopped, Officer Biondo approached on the driver’s side, Officer Carberry approached on the passenger side, and Officer Simrod stood directly behind the livery cab. Each officer, in plain clothes with his badge displayed on a neck chain, had drawn his gun. Carberry opened the back door on the passenger side and asked the two defendants to step out from that side. Simultaneously Officer Biondo opened the door on his side and saw the handle of a revolver protruding from under the driver’s seat beneath where Davis had been sitting. Directing his attention to the place where defendant Harris had been sitting, Biondo noticed that the grip of a handgun was exposed in a space between the two rear seats. At this juncture the two pistols were seized and defendants were arrested. Following Biondo’s testimony, the parties stipulated that the cabdriver, if called as a witness, would testify in accordance with his Grand Jury testimony that he did not know whether his high beams were on, and that he was not consciously sending a distress signal.

The suppression court’s findings credited Officer Biondo’s testimony that the livery cab’s high beams were on, and also found that this condition constituted a long-standing distress signal between cabdrivers and the police. However, the court expressed skepticism regarding the credibility of Officer Biondo’s testimony that he found the guns in plain view. Declining to resolve that question, the court ruled that the police had engaged in "a major intrusion” on defendants’ Fourth Amendment rights without first inquiring of the cabdriver whether he was in any difficulty, and further, that because the three policemen had their guns drawn when they approached the livery cab, no legitimate safety concern could justify their direction to defendants to exit the cab. On the record, and the court’s factual findings made thereon, we disagree, and reverse with new findings.

In light of our recent decisions in cases involving police vehicular stops, it is appropriate to divide for analytical purposes the police conduct here into three distinct segments: (1) the stop of the vehicle; (2) the forcible removal of defendants therefrom at gunpoint; and (3) the search of the rear of the cab after defendants had completed their compulsory egress. Although, from the point of view of the officers on the scene, this was one continuous and rapidly unfolding transaction, courts which have considered the question have devel oped such a partitioned approach for the purpose of constitutional review.

(1) The Stop: We have held (People v Madera, 125 AD2d 238) that a passenger in a car has standing to challenge the legality of both a police stop, and his forcible removal from the vehicle, as constituting an unreasonable seizure of his person subject to Fourth Amendment protection. Here, however, there existed a sufficiently objective basis for the stop by reason of the well-established high beam signal. Thus, there was a "reasonable suspicion based on articulable facts to believe that the person was involved in criminal activity or posed a danger to the officer” (People v McLaurin, 120 AD2d 270, 273), which justified the gunpoint stop. That the driver did not intend to signal did not, of course, alter the appearances upon which the police were entitled to act.

(2) The Forcible Removal of Defendants: Also, in McLaurin (supra), expanding upon the result reached by the United States Supreme Court in Pennsylvania v Mimms (434 US 106) which had held that a police officer does not violate a driver’s Fourth Amendment rights by ordering him out of a car intercepted for a traffic infraction, we held that a valid investigatory stop may be accompanied, as a protective measure, by a command that all the occupants exit the car or by the officer’s uninvited opening of a passenger door. We had earlier held in People v Moro (101 AD2d 747) that a police officer could lawfully order a passenger to exit the car following a traffic violation stop. Defendants argued, and Criminal Term agreed, that the police could have used the less intrusive means of requiring defendants to hold their hands in plain view while they inquired of the cabdriver whether anything was amiss. Such was the police procedure in People v Foster (83 AD2d 282) until one of the passengers slumped forward in a motion which the officer interpreted as an attempt to hide either a weapon or contraband. However, our decision in Foster cannot be read as purporting to delineate the outer limits of reasonable police response to a suspected nighttime highjack robbery of a cabdriver. That particularly low level of intrusion is not the sine qua non of a lawful arrest under circumstances of the case now before us involving an encounter with two suspects in the enclosed and darkened confines of a motor vehicle. The United States Supreme Court has observed that a significant percentage of murders of police officers occurs when the officers are making traffic stops (United States v Robinson, 414 US 218, 234, n 5). Here, believing they had a genuine signal of distress, the police were authorized to order these passengers out of the vehicle without exposure to all the obvious dangers to themselves and the driver that delay for a parley might involve. Simply put, if the passengers of a vehicle can be ordered to exit following a traffic infraction by the driver, they surely can be ordered to do so where a driver is believed to be sending a grim and silent signal of menace from his passengers.

(3) The Search of the Cab’s Passenger Area: In People v Millan (69 NY2d 514), the Court of Appeals modified the order of this court following our decision at 118 AD2d 236 by granting a previously withheld suppression hearing, and in doing so rejected our conclusion that a taxicab passenger lacks standing to challenge a search of the rear of the vehicle because it cannot be said, as a matter of law, that he possesses no reasonable expectation of privacy with respect thereto, particularly where the People rely on the statutory presumption of possession in Penal Law § 265.15 (3).

Footnotes

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* We are therefore obliged to consider the doubts expressed by Criminal Term as to that portion of Officer Biondo’s testimony which recounted his finding of the two guns recovered in plain view without conducting any search. Since the testimony was neither impeached nor contradicted, and since the hearing court made no finding of its own on the matter, we exercise our own fact-finding power to adopt it as being entirely consistent with the physical realities, particularly when the limited opportunity available to the occupants of this cab successfully to secrete the two firearms is accorded appropriate weight. The hearing court’s reservations might also have embraced Officer Biondo’s testimony with respect to the bending and pushing motions that he ascribed to defendants before their vehicle was halted. But, even if that latter testimony were to be fully discounted, we find still remaining a clearly articulable basis for this vehicular stop, which is all that is constitutionally required, as well as sufficient factual and legal justification for all subsequent police action.

Accordingly, the order, Supreme Court, New York County (Jerome W. Marks, J.), entered April 23, 1984, granting defendants’ motion to suppress physical evidence, and order (Herbert I. Altman, J.), entered May 11, 1984, dismissing the indictment, are reversed, on the law and the facts, the indictment reinstated, and the matter remanded to the hearing court for further proceedings.

While it is by no means clear on this record that at trial the People will rely on the statutory presumption, for the purpose of this discussion we assume it.