People v. Hines

Appellate Division of the Supreme Court of New York

People v. Hines

102 A.D.2d 713, 476 N.Y.S.2d 851, 1984 N.Y. App. Div. LEXIS 18874

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 1984

StatusPublished

Cited by5 cases

This text of 102 A.D.2d 713 (People v. Hines) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hines, 102 A.D.2d 713, 476 N.Y.S.2d 851, 1984 N.Y. App. Div. LEXIS 18874 (N.Y. Ct. App. 1984).

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Opinions

— Order, Supreme Court, New York County (S. Levittan, J.), orally rendered June 11,1981, written decision December 9,1981, is reversed, on the law and the facts, and the motion to suppress the physical evidence consisting of bullets and a pistol, is denied, and the matter remanded to Trial Term for further proceedings. (Previous decision, see People v Hines, 97 AD2d 743.) H On December 6, 1980 at approximately 10:40 p.m., two police officers assigned to the street crime unit, in plain clothes, in an unmarked car, saw a car with the defendant in it at 112th Street near the corner of Eighth Avenue in Manhattan. Defendant’s car, a station wagon, had its headlights off and its engine running. It bore bent or mangled Maryland license plates. The officers testified that they saw the driver (defendant) looking back directly to the corner of 112th Street and Eighth Avenue, and then defendant’s station wagon began to move forward about 100 feet or so with the lights still out. The officers pulled up alongside defendant’s car. Defendant seemed to have some difficulty with the window of the car, but then he opened the door of the car; the officers asked what he was doing there, and he said that he had dropped off a friend. The officers asked for his license and car registration and then backed up their car to the rear of the station wagon. One of the officers saw defendant make some motion with his hands, which he described as bending to the right front floorboard area of the vehicle. 11 The hearing court did not credit the testimony about the defendant bending as far as the floorboard area, although the court thought it was possible that the officer saw defendant lean over toward the front passenger’s side. H Defendant having gotten out of his station wagon, the officers again asked for his license and registration. Defendant did not have the registration on his person but said that it was probably in the glove compartment, and then attempted to reach into the vehicle. The officers stopped him from this; they instructed the defendant to stand between the two officers, and one of the officers got into the car and there saw three bullets in a plastic tray atop the transmission hump in the front floor area. The officer reached under the front passenger’s seat and took out a pistol. The glove compartment contained a bullet or bullets. Defendant was arrested. H The trial court found that there was no justification for entering and reaching into the vehicle and conducting a visual search of its interior. We do not agree. 11 This was 10:40 at night in a high-crime area. Indeed, defendant’s attorney himself described the area of 112th Street and Eighth Avenue as having “the highest crime rate in the city.” The officers described it as a very high robbery and narcotics location. The officers suspected a possible robbery or a narcotics transaction. Their suspicions were aroused by the vehicle violations, the condition of the plates, the defendant’s unfamiliarity with the car, driving with the headlights off, being unfamiliar with the fact that the window was not working, the officers’ expertise from the past, and the defendant’s actions when he was bending over. That suspicion, and what one of the officers described as his fear, caused them to take the actions that they did. 11 While the hearing court said that there was no credible evidence that either detective believed or had reason to believe that he or his partner was in danger, we still think the action of the officers was reasonable. The presence or absence of subjective fear on the part of the police officer should not be decisive; even a subjectively fearless police officer is not forbidden to take reasonable and sensible precautions for his own safety. The suspicion of possible criminal activity in all the circumstances was not unreasonable. The possibility that there might be a weapon was not wholly fanciful. What the Supreme Court said in Terry v Ohio, (392 US 1, 28) is largely applicable here: “The actions of [defendants] were consistent with [the officer’s] hypothesis that these men were contemplating a day-light robbery — which, it is reasonable to assume, would be likely to [714]*714involve the use of weapons — and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis.” And we may take judicial notice (from our own judicial experience) that persons who are engaged in narcotics transactions in this city, at least above the level of the street corner seller, are frequently armed. The defendant was about to reach into the car where the police officers suspected the possibility of a weapon. 11 The Supreme Court has “specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile’ * * * Indeed, it appears ‘that a significant percentage of murders of police officers occurs when the officers are making traffic stops.’ ” (Pennsylvania v Mimms, 434 US 106, 110.) H In Pennsylvania v Mimms (supra), the Supreme Court sustained the action of the police officers in ordering an occupant of a car to step out of the car as part of reducing the danger to the police officers. We see little difference between that and not permitting the occupant to go back into the car for a moment before the police officers checked to make sure that there was no weapon. It was a minimal intrusion (supra, at p 111) for the officers to make this brief investigation of the car for their own safety before letting the defendant reach back into the car. This limited search was “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence” (People v McLaurin, 56 AD2d 80, 84 [dissenting opn], revd on dissenting opn 43 NY2d 902). Concur — Kupferman, J. P., Sullivan, Asch and Silverman, JJ.

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— Order, Supreme Court, New York County (S. Levittan, J.), orally rendered June 11,1981, written decision December 9,1981, is reversed, on the law and the facts, and the motion to suppress the physical evidence consisting of bullets and a pistol, is denied, and the matter remanded to Trial Term for further proceedings. (Previous decision, see People v Hines, 97 AD2d 743.) H On December 6, 1980 at approximately 10:40 p.m., two police officers assigned to the street crime unit, in plain clothes, in an unmarked car, saw a car with the defendant in it at 112th Street near the corner of Eighth Avenue in Manhattan. Defendant’s car, a station wagon, had its headlights off and its engine running. It bore bent or mangled Maryland license plates. The officers testified that they saw the driver (defendant) looking back directly to the corner of 112th Street and Eighth Avenue, and then defendant’s station wagon began to move forward about 100 feet or so with the lights still out. The officers pulled up alongside defendant’s car. Defendant seemed to have some difficulty with the window of the car, but then he opened the door of the car; the officers asked what he was doing there, and he said that he had dropped off a friend. The officers asked for his license and car registration and then backed up their car to the rear of the station wagon. One of the officers saw defendant make some motion with his hands, which he described as bending to the right front floorboard area of the vehicle. 11 The hearing court did not credit the testimony about the defendant bending as far as the floorboard area, although the court thought it was possible that the officer saw defendant lean over toward the front passenger’s side. H Defendant having gotten out of his station wagon, the officers again asked for his license and registration. Defendant did not have the registration on his person but said that it was probably in the glove compartment, and then attempted to reach into the vehicle. The officers stopped him from this; they instructed the defendant to stand between the two officers, and one of the officers got into the car and there saw three bullets in a plastic tray atop the transmission hump in the front floor area. The officer reached under the front passenger’s seat and took out a pistol. The glove compartment contained a bullet or bullets. Defendant was arrested. H The trial court found that there was no justification for entering and reaching into the vehicle and conducting a visual search of its interior. We do not agree. 11 This was 10:40 at night in a high-crime area. Indeed, defendant’s attorney himself described the area of 112th Street and Eighth Avenue as having “the highest crime rate in the city.” The officers described it as a very high robbery and narcotics location. The officers suspected a possible robbery or a narcotics transaction. Their suspicions were aroused by the vehicle violations, the condition of the plates, the defendant’s unfamiliarity with the car, driving with the headlights off, being unfamiliar with the fact that the window was not working, the officers’ expertise from the past, and the defendant’s actions when he was bending over. That suspicion, and what one of the officers described as his fear, caused them to take the actions that they did. 11 While the hearing court said that there was no credible evidence that either detective believed or had reason to believe that he or his partner was in danger, we still think the action of the officers was reasonable. The presence or absence of subjective fear on the part of the police officer should not be decisive; even a subjectively fearless police officer is not forbidden to take reasonable and sensible precautions for his own safety. The suspicion of possible criminal activity in all the circumstances was not unreasonable. The possibility that there might be a weapon was not wholly fanciful. What the Supreme Court said in Terry v Ohio, (392 US 1, 28) is largely applicable here: “The actions of [defendants] were consistent with [the officer’s] hypothesis that these men were contemplating a day-light robbery — which, it is reasonable to assume, would be likely to [714]*714involve the use of weapons — and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis.” And we may take judicial notice (from our own judicial experience) that persons who are engaged in narcotics transactions in this city, at least above the level of the street corner seller, are frequently armed. The defendant was about to reach into the car where the police officers suspected the possibility of a weapon. 11 The Supreme Court has “specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile’ * * * Indeed, it appears ‘that a significant percentage of murders of police officers occurs when the officers are making traffic stops.’ ” (Pennsylvania v Mimms, 434 US 106, 110.) H In Pennsylvania v Mimms (supra), the Supreme Court sustained the action of the police officers in ordering an occupant of a car to step out of the car as part of reducing the danger to the police officers. We see little difference between that and not permitting the occupant to go back into the car for a moment before the police officers checked to make sure that there was no weapon. It was a minimal intrusion (supra, at p 111) for the officers to make this brief investigation of the car for their own safety before letting the defendant reach back into the car. This limited search was “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence” (People v McLaurin, 56 AD2d 80, 84 [dissenting opn], revd on dissenting opn 43 NY2d 902). Concur — Kupferman, J. P., Sullivan, Asch and Silverman, JJ.

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102 A.D.2d 713, 476 N.Y.S.2d 851, 1984 N.Y. App. Div. LEXIS 18874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hines-nyappdiv-1984.

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