Fearing for Safety during Traffic Stops - The Path to Inclusion of Evidence
Deep Dive #5 - People v. Rodriguez, Decided by the Appellate Division, Second Department on May 2, 2018.
People often imagine that defendants in criminal cases "have all the rights" simply because they often have the power to insist that the Government come to the table to justify various actions taken by the police in a given case. The assumption is, I suppose, that if the Government has to come to the table and justify its officers, that obscure legal technicalities will allow sneaky lawyers to "force" judges to find that the police behaved wrongly. This leads to Judges excluding perfectly good evidence so that bad guys get to go free. Of course this is just plain silly.
In truth, more often than not, the law offers several ways for the police to justify searching and seizing in the absence of warrants or probable cause. King among these justifications is the notion of actions taken out of a fear for the officer's safety. This week's deep dive involves just this sort of a case, where a police officer's actions during what was allegedly a routine traffic stop were justified on the basis that the officer's actions were reasonable based upon fear for his safety.
This week's case is therefore a common sort of case involving the appeal by a defendant from a suppression hearing where, believe it or not, the hearing Judge ruled against the defendant. The very fact that it is a common type of case, with a common conclusion should be taken as a warning to those who are considering pressing Fourth Amendment (search and seizure) claims.
The facts of this case are straightforward. As a defense lawyer, over the years, you hear descriptions of encounters like this quite often. The names are different and there are always slight variations, but it is definitely a theme.
The defendant, Mr. Rodriguez, was a passenger in a car that the police stopped for some unnamed (by the appeals court) traffic violation. As a police officer approached the defendant's side of the vehicle, he claimed to have observed the defendant quickly move his hand from his right shoulder to his left hip area. The officer also claimed that the defendant was 1) breathing heavily, 2) not making eye contact, and 3) that he had an oddly wrapped package on his lap.
The officer claimed that these factors caused him to be fearful for the safety of his and his fellow officers' safety. He therefore ordered the defendant out of the vehicle, while physically holding the defendant's hands.
As the defendant stepped out, and while his hands were restrained by the officer, the package that was on his lap fell to the ground, according to the officer, and this exposed the butt end of a gun. The officer then placed the defendant under arrest, seizing the gun and accompanying ammunition.
Procedure and Timing - Important Parts of the Consideration
The defendant claimed that the stop was illegal and that the process of obtaining the gun violated his Constitutional rights, (primarily the Fourth Amendment to the United States Constitution), and requested that the Court hold a hearing on the issue. Understand that the reason that this case made it to appeal is that after losing the hearing, the defendant continued to trial, and lost. After losing the trial, the defendant appealed, at least in part on the grounds that the hearing Judge should found that the police behaved illegally (in violation of the Fourth Amendment) in recovering the gun. In many gun cases, losing the hearing leaves little hope for a trial where the accusation is simply possession of a weapon. Although in this case, Mr. Rodriguez was a passenger, the allegations were that he had the gun in his lap. Therefore, it is hard to imagine a credible defense that he was not in possession of the gun, unless the theory is that he did not know that there was a gun in the package he was holding on his lap. While this is possible, of course, under the right circumstances, it seems a bit of a hard road to go, and the fact that Mr. Rodriguez was convicted does not seem terribly surprising. Essentially, Mr. Rodriguez' best hope was likely the suppression issue, and losing that meant that he had to go to a trial he wasn't likely to win, lose at trial, get sentenced to prison, and then wait about two years to have his case heard on appeal on the issue of whether or not the hearing Judge made the right decision or not.
In addition to the the practicalities of timing for challenging a hearing decision on appeal, there are also practicalities of timing in terms of getting the issue of the police action to hearing in the first place. Realize that this request for a hearing on the issue of the seizure of the evidence happens in motions that are filed after the accused is indicted. The hearing takes place, therefore, a very long time after arrest, and people who are tempted to want to sort out issues like this right away are frustrated by this reality of the process.
The timing of this hearing is significant because an accused will often want to know the outcome of the hearing before deciding to settle the case. A suppression hearing offers the opportunity, if it is successful, to exclude (in a gun case) the critical evidence in the case. A victory at the suppression hearing on a gun case will typically ultimately mean that the case will be dismissed. That can make it very tempting to want to have the hearing, especially when settlement offers include invitations to spend years in prison. The difficulty is that by insisting that the case progress to a hearing, the accused will usually have to pass up settlement offers that will never be made again. The Government will often make much more favorable offers to settle cases before being made to conduct a hearing on the case than they will make after conducting a hearing. In fact, if the Government is a little concerned about their ability to be successful at a suppression hearing (which isn't very often) they often will make tempting, under market offers on cases. These offers are hard to refuse because of the general feeling that success at pretrial hearings is so hard to predict. Taking the car to hearings then, often represents a gamble of years in prison - or at least a two year gamble of the time before appeal is heard.
In this case, Mr. Rodriguez gambled and lost. After losing the hearing, he then lost the trial.
Substantive Analysis of the Case
The “facts” of the case, as reported by the appeals court represent a summary of what the Judge at the suppression hearing found to be the facts. It is quite likely that the defense disputed some or even most of the facts that the hearing Judge found to be true.
For example, the hearing Judge thought it was important that Mr. Rodriguez was “breathing heavily”, did not look the officer in the eyes, and made some sort of gesture with his hand as the officer approached the car. I would not be surprised if the defendant denied each of these things ever happened. The hearing judge also took as important that the package on Mr. Rodriguez’ lap was “oddly wrapped”. I don’t even know what that means or why that would be important.
These “facts” found to be true by the Judge at the hearing, however, generally become “the facts” of the case for purposes of appeal. Whether they are actually true is anyone’s guess, but that is the framework that we have to work with on appeal.
In this case, the appeals court identified these facts as important in that they provided, according to the Court, reasonable support for the idea that the police officer approaching the car was actually fearful for his safety. This is critical because once the Court believes that the officer had a reasonable fear for his safety, then the actions of the police officer are judged using a very forgiving analysis. Naturally, police officers are always allowed to take steps to keep themselves and others safe. Therefore, if a reasonable action would be to order a passenger in a car out of the car, then that order can be justified on safety grounds without having to plumb the depths of probable cause or the need for a warrant.
And so mountains of cases have been decided where various actions and attitudes of people have been claimed by police to have created a “fear for the safety of the officer”. There is never one specific thing, and Courts are quick to remind us that it is the “totality of circumstances” that need to be considered. But classic among these fear generating actions are “furtive gestures” that vaguely suggest the possibility of a person either reaching for or readying a weapon. Also popular are claims of nervousness.
In fact, it is something of an inside joke among defense lawyers discussing the testimony of police officers at suppression hearings the obviousness of the training the police receive to be mindful about and discuss their actions in terms of fear for their safety. Listening to some less artful officers testify, they will describe how they behaved at an arrest scene by starting almost every sentence with the phrase, "Fearing for my safety, I...". As true as it no doubt is from time to time, it is nevertheless a little hard to take listening to this catch phrase start every sentence from the police officer from the witness stand. I imagine some class where police are trained about testifying in court and them being reminded that this is very important to make sure the Court knows about. For some police officers this lesson is translated into saying that everything causes them to fear for the their safety.
As you might expect, cases are all over the place on how the specific things that the police identify as causing fear work and when they justify police action and when they don’t. There are cases where you find a Court pointing out “nervousness” as a factor that helps justify police action, and you can find cases where Courts go on about how nervousness is not really specific enough to by itself justify police action.
This case is different because it is the first time in my experience where an “oddly wrapped” package serves to justify police action on the grounds of fear for safety. Maybe the hearing testimony was more descriptive and the appeals court just didn’t provide details. Who knows.
But this is partly why it is so difficult to predict the outcome of suppression hearings, especially at the beginning of the case. Who would ever imagine, for example, as a defense lawyer, that you would need to be worried about how “oddly” a package was wrapped? Who even knows what that means?
Whatever it means in general, in this case it meant that Mr. Rodiguez’ case crashed on the same rocky shore of defeat where countless other similar suppression cases have crashed.
BY DON A. MURRAY, ESQ.
I have been a New York City criminal defense lawyer for more than 27 years helping people accused crimes in NYC Criminal Courts. Call me at 718-268-2171 to discuss your case.
If you liked this article, you may also be interested in my article about the exclusion of evidence in criminal cases and how rare this really is.