People v. Elam

179 A.D.2d 229, 584 N.Y.S.2d 780, 1992 N.Y. App. Div. LEXIS 6374

Opinions

OPINION OF THE COURT

Murphy, P. J.

The issue in this case is whether the police may stop and detain a motorist on suspicion of car theft simply because he or she drives a car with a broken window. We hold that they may not.

The defendant was observed by two police officers driving a vehicle with a broken rear vent window. Believing that the broken vent might be a sign that the car had been recently stolen, the officers conducted a radio check of the car’s license plates. The check, however, failed to disclose that there had been any report of the car’s theft. Although their suspicions had thus far received no confirmation, the officers’ belief that the car had been stolen remained unshaken. Accordingly, the officers, using flashing lights, their loudspeaker, and a horn ordered the car to pull to the side of the road. It was as a direct result of this stop that the defendant was ordered out of the car, searched and found to be in possession of a gun. He has been convicted of attempted criminal possession of a weapon in the third degree.

It is indisputable that the stop of the vehicle amounted to a seizure within the meaning of the Fourth Amendment and, accordingly, that the legality of the stop and immediately ensuing seizure of the gun may not be sustained except upon a showing that the police officers reasonably suspected that the defendant was committing, had committed or was about to commit a crime (People v Cantor, 36 NY2d 106, 112-113; CPL 140.50; see also, People v Singleton, 41 NY2d 402, 404; People v Sobotker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 420). In this regard, it is completely irrelevant that, as the dissent is at such pains to emphasize, the stop was "investigative”. Obviously the stop was investigative, but that did not in any way reduce the predicate required to render the stop legal. By now it ought to be plain that "[t]he common-law power to inquire does not include the right to unlawfully seize. The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot” (People v Cantor, supra, at 114).

As the crime suspected by the officers was that of auto theft, the specific question posed is what would have reasonably justified the officers’ suspicion that the car driven by the defendant had been stolen? There is in the end but one circumstance cited by the People which would even arguably support the belief that the car had been stolen, namely, the broken or, as the dissent is at such pains to emphasize, missing rear vent window

* but manifestly, that circumstance alone was not sufficient to justify the inference of auto theft. A broken car window is at least as easily suggestive of vandalism, or accident, or theft of a car’s contents, as it is of theft of the car itself. Were the police to be permitted to stop every car with a broken window on suspicion of auto theft, the inevitable result would be that many, if not most of those stopped, would be innocent victims of crime or other misfortune involving window breakage who had not yet had the opportunity to repair the damage to their vehicles. Indeed, no comfort on this score can be drawn from the present case, for contrary to the officers’ most stubbornly held convictions, as the radio check had indicated, the car driven by the defendant was not stolen. But, of course, even if the car had ultimately been found to have been stolen that would not demonstrate the sufficiency of the predicate upon which the police acted. Although the dissent insists on dwelling at some length upon the officers’ conduct subsequent to the stop, which it finds flawless, the single relevant question in this case is whether the intrusion was justified at its inception (see, People v Cantor, supra, at 111).

Arguing, in essence, that all drivers of cars with broken windows may be routinely stopped on suspicion of auto theft, the dissent apparently finds compelling the case of People v Vasquez (106 AD2d 327, affd on different grounds 66 NY2d 968), in which the “stop” of a double-parked car with a dangling license plate was upheld. It is reasoned that if a dangling license plate may be taken as a reasonably reliable sign of crime then so may a broken window. Respectfully, it is very difficult to conceive that the fundamental right of a person to remain free of governmental intrusion amounting to seizure within the meaning of the Fourth Amendment could be made to turn upon the viability of such an analogy. It is, to say the least, a doubtful proposition that such seminal precedential significance ought to attach to the fact that, in one case, a stop, which would have been upheld anyway on the basis of the commission of a traffic violation, i.e., double-parking, was additionally permitted because a license plate was affixed in a highly unorthodox and precarious way. Certainly, the case cannot be reasonably read to signify that virtually any irregularity, no matter how common and no matter how varied its possible causes, may be viewed as sufficiently indicative of criminal activity to support a Fourth Amendment seizure.

Broken windows happen to be an unfortunately common incident of car ownership in this city. Indeed, it is doubtful whether there are more than a lucky few car owners in this jurisdiction who have not at some point had to drive to the repair shop to replace a broken pane of glass. It would surely come as a surprise and a source of considerable dismay to car owners to learn, as the dissent would hold, that they may be seized en route to the repair shop on suspicion of auto theft. Given the realities of contemporary urban life, there is a very substantial inferential gap between the sighting of a car with a broken window and the conclusion that criminal activity is at hand, and an even more substantial gap intervening before the more specific conclusion that the driver of such a vehicle is guilty of car theft. While the dissent does not trouble over the existence of such gaps, content that they are sufficiently narrowed by the "special training” of the police officers here involved on the subject of "auto crime,” there has been absolutely no showing as to how the officers’ "special training” would have enabled them to conclude with any degree of reliability that the defendant’s car had been stolen and, of course, as it turned out, the officers’ "special training” notwithstanding, the car had not been stolen, by the defendant or anyone else. Indeed, in view of the fact that the broken window proved not to be indicative of the commission of any suspected crime, it is curious that the dissent persists in the assertion that the inference of criminality was not merely permissible but was the only one to be drawn. Presumably, the case represents for the dissenter an exception to some rule that a broken car window invariably bespeaks criminality of recent vintage. But even if this view accorded with reality, the issue is not simply whether there had recently been some crime involving the car, but whether, if there had been, the defendant could be reasonably suspected of its commission. It bears repetition that "[bjefore a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.” (People v Cantor, supra, at 112-113 [emphasis added].) Obviously, it is not an exercise of ordinary prudence or caution to believe a person guilty of auto theft simply because he or she drives a car with a broken window. In the final analysis, the officers’ conviction that the defendant’s car had been stolen and, what is more, that it had been stolen by him, represented nothing more than a minimally informed guess.

Perhaps in recognition of the manifest inadequacy of the broken window as the predicate for the seizure which occurred, the People urge that the police action was additionally justified by the defendant’s driving, which the police described at the suppression hearing as "erratic”. This description notwithstanding, there is absolutely no indication in the record that the defendant had committed any traffic violation. Indeed, the officers were quite clear in their hearing testimony that their sole reason for stopping the defendant was that they suspected him of auto theft and no explanation has been offered as to how the defendant’s "erratic” driving might reasonably have been taken by the officers as indicative of his commission of that crime.

As for the dissent’s rather tentative suggestion that "erratic” driving not amounting to a traffic violation may be a sufficient predicate for a stop, suffice it to say that the one case advanced in support of this dubious proposition holds nothing of the sort. Although the defendant in People v Scanlon (59 AD2d 788) was indeed stopped for driving in an erratic manner, the legality of the initial stop does not appear to have been litigated and, so far as can be gathered from the court’s memorandum decision, was not an issue on appeal. Moreover, for all that is known, the driving described as "erratic” in Scanlon may well have involved actual traffic violations.

When all is said and done, it is apparent that the police officers simply had a hunch that the defendant had stolen the car he was driving. Although, as is hardly surprising, the hunch proved inaccurate, the police did manage quite fortuitously to ferret out evidence of an entirely different crime. Undoubtedly, if the police are to be permitted to pursue their vaguest intuitions of criminal activity in so aggressive a manner, there will be instances in which some wrongdoers who might otherwise go free will be apprehended; indeed, there may be instances such as the one at bar in which completely unsuspected crimes are brought to light. The instances will be more numerous, however, in which the free rein given the police will result in baseless intrusions upon the innocent. This latter consequence of inadequately grounded police activity is unfortunately one which the judicial perspective tends to minimize, since Fourth Amendment jurisprudence has evolved almost exclusively in the context of cases in which police action, however baselessly initiated, has uncovered evidence of crime. It is, however, a consequence which must be kept scrupulously in mind, for otherwise a court in its zeal to see the guilty punished will end up by sanctioning the erosion of fundamental constitutional guarantees, the predominant and absolutely essential purpose of which is to shield innocent individuals from the arbitrary assertion of the State’s formidable power.

Accordingly, the judgment of the Supreme Court, Bronx County (William C. Donnino, J.), rendered January 5, 1990, convicting the defendant upon his plea of guilty of attempted criminal possession of a weapon in the third degree and sentencing him as a mandatory persistent violent felony offender to a term of imprisonment of two years to life, should be reversed on the law, the motion to suppress evidence granted, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

Presumably, the small vent window was missing because it had been broken. In any case, a photograph of the car in which the dissent places great store, shows the damage to be barely perceptible.