Legal Aid Wins New York Court Of Appeals Ruling Protecting Motorists From Questioning By The NYPD
WEDNESDAY, DECEMBER 19, 2012

The New York Times reported that The Legal Aid Society's Criminal Appeals Bureau won a major ruling from the New York Court of Appeals in which the Court limited the questioning of motorists by the police. In an individual appeal handled by the Society, the Court of Appeals held that during a routine traffic stops, without a "founded suspicion" of criminal activity, police officers may not ask drivers or passengers pointed questions that imply criminal activity, like "Where are the drugs?" or "Do you have a weapon?" Andrew Fine, a Supervising Attorney in the Society's Criminal Appeals Bureau, told the Times that "[t]he mere fact that people happen to be in a car should not give the police carte blanche to question them regarding possible criminal behavior in the absence of any suspicion." The case was handled by Mr. Fine and Denise Fabiano of the Society's Criminal Appeals Bureau and Matan Koch, a pro bono volunteer from the law firm of Kramer Levin Naftalis & Frankel LLP.




The New York Times
Court Limits Questioning of Motorists by the Police
December 19, 2012
By J. David Goodman

Police officers in New York may not ask drivers or passengers during a routine traffic stop whether they have a gun or any other weapon unless the officers have a “founded suspicion” of some criminal behavior, the state’s highest court said in a decision released on Tuesday.

The ruling by the Court of Appeals upholds lower court decisions and comes against the backdrop of a roiling debate over how the police deal with the public in encounters both on the street and on the side of the highway.

But experts cautioned that Tuesday’s decision, which formally extends to car stops an already rigorous state protocol for police encounters with pedestrians, was likely to have little effect on a pending federal lawsuit challenging stop-and-frisk procedures.

The state judges ruled that without a “founded suspicion” of criminal behavior, officers cannot ask pointed questions that imply criminal activity, like “Where are the drugs?” or “Do you have a weapon?”

It was a version of the latter question that New York City police officers asked Miguel Garcia and his four passengers during a Bronx traffic stop made for a broken rear brake light on a September night in 2007.

According to court documents, three officers pulled the car to the side of a darkened road around 10 p.m., and two of them approached the car’s occupants. The officers said they observed “furtive” movements in the back seat. After asking the driver for his information, one officer asked if anyone had a weapon, the documents said. “Yes, I have a knife,” one passenger said.

The officers ordered everyone out of the car and found another weapon, a type of air gun, next to the front passenger’s seat. An inspection of the car turned up a second air gun in the trunk. Mr. Garcia later admitted to owning both guns and was charged with possession of the weapons, a misdemeanor.

Mr. Garcia’s lawyers argued that the initial question about weapons was unlawful; the Court of Appeals agreed that furtive movements were not enough to prompt the more intrusive questions. “The mere fact that the people happen to be in a car should not give the police carte blanche to question them regarding possible criminal behavior in the absence of any suspicion,” said Andrew Fine, a Legal Aid lawyer overseeing the appeal.

The court did not rule on whether the weapons would have been “inevitably discovered” by the police anyway, and sent the case back to a trial court to review that question.

Patrick J. Lynch, the president of the New York City patrolmen’s union, criticized the ruling, pointing to what he said was the unique danger traffic stops present to officers. “With all respect to our courts and judiciary, only a police officer has to walk up to an occupied vehicle in the dead of night without knowing what awaits,” he said. “To make unlawful a simple inquiry that would serve to protect the safety of police officer and public alike is to endanger everyone.”