There is no denying that armed offenses and mere weapon possession are some of the most serious crimes in the New York Penal Law. Its equally clear that police officers in New York should be able to protect themselves from potential danger when they stop a person who committed a crime or may be perpetrating a New York gun crime. An interesting question, however, is when a police officer can make an inquiry and ask a passenger or driver of a vehicle if he or she has a weapon such as a firearm, revolver, gun, gravity knife or switchblade. A recent decision by the top court in New York, the Court of Appeals, clearly explains the rule when this question can be asked. Whether you are a New York criminal lawyer, Assistant District Attorney or judge in a county, criminal or local court, People v. Garcia, No. 205, NYLJ 1202581900488, at *1 (Ct. of App., Decided December 18, 2012), is a critical case to read and fully understand.
In the words of the Court, Garcia’s appeal asked the judges to “determine whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons..” There, the police pulled over the defendants’ vehicle because of a nonworking headlight. In addition to Garcia, the driver, four other people were in the car. The three backseat passengers looked nervous, “were a little furtive,” kept “looking behind,” and “stiffened up.” Asked for his license and registration, Garcia complied. Shortly thereafter, the officers asked if anyone possessed a weapon at which time one of the passengers admitted to possessing a knife. After ordering everyone from the vehicle, what appeared to be a firearm (it was an air pistol) was found wedged between a seat (it was visible with a flashlight). After waiving his rights to an attorney, Garcia admitted the air gun was his pistol.
The trial court initially ruled (only later to change) that the police improperly searched the vehicle. The court then suppressed the pistol because officers had no basis for searching the car after it was stopped. Further, the trial court ruled that the “question as to whether the occupants possessed any weapons required founded suspicion of criminality and that mere nervousness on the part of the occupants did not give rise to such suspicion.”
In ultimately finding for suppression of the air pistol, the Court of Appeals first recognized that a “police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car. (see People v. Robinson, 74 NY2d 773, 775 ). In determining that the police cannot merely ask if a passenger or driver has a weapon, as opposed to having those individuals exit the vehicle, the Court further stated that “by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.”
The Garcia case is a potentially tremendous tool in defense to crimes involving weapons possession in vehicles. While the law is now more clear, the facts (or admissible evidence) is equally important. Did the police stop you for a traffic infraction and then make this inquiry? Alternatively, will the police articulate that they observed you while outside your vehicle place what appeared to be a firearm under the seat? Every case and set of circumstances is unique, but Garcia cannot be overlooked.
To learn about New York weapon crimes, New York gun and firearm crimes and New York knife crimes, follow the general and specific links for content ranging from analysis of statutes to reviews of legal decisions such as Garcia.
Established by two former Manhattan Assistant District Attorneys, Crotty Saland PC is a New York criminal defense firm that represents clients in criminal arrests, investigations, indictments and trials throughout the New York City area.