In People v. Brandolino, 2011 NY Slip Op. 51747(U), September 26, 2011, the Troy City Court ruled that a glass pipe with drug residue was improperly seized by a police officer from the passenger of a vehicle stopped due to the existence of a warrant for the driver’s arrest. The ruling was made after the court conducted a Mapp hearing, a type of pre-trial hearing the defense may request in criminal matters in order to challenge the propriety of a police seizure of evidence. At the hearing, the only witness was the seizing officer, who testified that he approached the defendant as a passenger in the car, asked him for identification, and then asked whether he was in possession of anything illegal. The Defendant handed over the pipe and was placed under arrest and charged with criminal possession of a controlled substance.
As the court noted, New York Law permits police officers participating in a traffic stop to take actions affecting the liberty of passengers as well as drivers. However, when they do so, they are subject to the general constitutional constraints that prohibit unreasonable searches and seizures. The issue in this case was whether the inquiries made by the officer of the passenger that led to the seizure of evidence were proper in light of these constitutional limitations. The court made its determination by evaluating the inquiries under the four-part framework articulated by the New York Court of Appeals in People v. DeBour, 40 NY2d 210 (1976). The court found that the officer’s asking of the defendant for identification was permissible under the first part of DeBour, which permits an interaction between the policy acting in a law enforcement capacity and a private citizen if there is “an objective credible reason for the [interaction] not necessarily indicative of criminality.” The officer’s inquiry as to whether the defendant was in possession of anything illegal, however, was not constitutionally permissible. The nature of the inquiry was such that it would “lead one to reasonably believe that he or she is suspected of some wrongdoing.” In order to make such an inquiry, the police need to “possess a founded suspicion that criminality [is] afoot.” The court ruled that there was no evidence presented at the hearing that the police officer in this case had any grounds for such a founded suspicion. Most notably, the court ruled that the mere fact that the defendant was in the company of a wanted person at the time of the inquiry was inadequate, absent other evidence (such as of strange or furtive behavior), to substantiate the requisite founded suspicion.
Consequently, the court concluded that, “[a]bsent testimony to support the Deputy’s level two inquiry, the seizure of the item in this case was predicated upon unconstitutional conduct and the evidence seized must be suppressed.”