Fourth Department--Not So Fast Officer
April 23, 2007
In People v. Jones, 2007 NY Slip Op 0339, the defendant appealed from a judgment which convicted him upon a plea of guilty to criminal possession of a controlled substance in the first degree.
At issue was whether the trial court erred in refusing to suppress the evidence seized by the police from the trunk of his car. The police stopped his vehicle after receiving complaints of drug activity in the area where he was parked. They approached him and asked for his license and registration, which he provided.
According to the officers, the defendant then reached for the center console of the front passenger area of his car. The police, allegedly fearing that he was reaching for a weapon or concealing contraband, ordered him to exit his vehicle. The patted him down and discovered a large amount of money in small bills,at which point he began to "act nervous". They searched the front passenger area and found nothing, moved onto the rear passenger's side and found a scale with white residue on it and then searched the front driver's side area where white residue resembling crack was found. A full search of the vehicle then occurred and cocaine was discovered in the trunk.
The Court concluded that the search should have ended when nothing was discovered in the front passenger area and thus the drugs should have been suppressed.
The Court explained that:
Under those circumstances, the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant's furtive movements, i.e., the front passenger area and center console (see People v Mundo, 99 NY2d 55, 59; Carvey, 89 NY2d at 712; People v Fludd, 20 AD3d 351, 353, lv denied 5 NY3d 852; People v Cheek, 18 AD3d 475, 476, lv denied 5 NY3d 786; People v Anderson, 17 AD3d 166, 168). The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console.
Sounds about right to me, although I must admit I was pleasantly surprised by the decision.
That being said, the Court remanded the case to the trial court to determine whether the defendant consented to the search of his vehicle as the police claimed, although he denied that allegation. So, it boils down to whether the Court chooses to believe the police or the defendant. My money's on the cops. How about you?
Shucks, you're giving the cops way too much latitude. They had no PC to begin with. They made a common law inquiry, and the driver appropriately responded. From there, the cops' testimony smells.
For no reason, he reaches toward the center console? For no reason, they suspect he might be reaching for a weapon? Furtive gestures? Nervous? This is the same amorphous crap they throw up to justify a search whenever there's no objective basis. If all the cops have to do is mumble "furtive" and "nervous", then search and seizure becomes a joke.
Being the old timer that I am, I remember all too well the dropsy cases. Every time there was a street encounter, the police would claim that the perp tossed the drugs to the ground, abandoning it as they watched, thus eliminating the search issue as well as nailing the perp on the charge. It took a long time for the courts to figure out that this was a scam designed to defeat the Constituion, what police perceived as particularly problematic thing that only served to protect the guilty from justice.
We're about due for another round of judicial cynicism. But then again, we've been due for about 20 years.
Posted by: Scott Greenfield | April 24, 2007 at 08:41 AM