The following constitutes the opinion, decision and order of the court:

The defendant is charged with Criminal Possession of a Weapon in the Third Degree, Criminal Possession of a Controlled Substance in the Fifth Degree, Unlawful Possession of Marijuana and Unlawfully Tinted Windows.

By motion dated April 24, 2007, the defendant seeks suppression of physical evidence seized from defendant's person and vehicle claiming that such search was unlawful pursuant to People v DeBour 40 NY2d 210 and People v. Ingle 36 NY2d 413.

Where a defendant challenges the admissibility of physical evidence on a motion to suppress, he bears the ultimate burden of proving that the evidence should not be used against him.

The people have the burden of going forward to show the legality of the police conduct in the first instance. This requires that the people show the search was pursuant to a valid warrant or a legal exception.

On July 26, 2007 a hearing was held.

Based upon the evidence presented at the hearing I now make the following findings of fact:

On November 3, 2006, Police Officer Nicholas Scioli of the Town of Amherst Police Department, while on routine patrol, traveling northbound on Niagara Falls Boulevard, observed [*2]defendant's vehicle pull into a motel parking lot. Officer Scioli observed that the vehicle's windows were tinted to the point that he could not see into the vehicle. After making these observations, Scioli pulled into the parking lot, activated his overhead lights and parked behind defendant's car. Scioli then approached the vehicle ordering the defendant to roll down his windows , to which defendant complied. Defendant was the sole occupant of the vehicle. Defendant was asked for his license and registration. At this first request defendant only produced his license. The officer then asked defendant again for his registration. During this request the officer kept his flashlight pointed at defendant's hands. He did this so as to keep defendant's hands in view for his own safety. In response to the officer's second request, defendant turned toward the car's center console causing the officer to lose sight of defendant's hands which were blocked to Scioli's view by defendant's back. The officer then moved toward the front windshield of the car to get a view of defendant's hands. The defendant then turned his back again so that his back was now towards the steering wheel. As the officer could not see defendant's hands he ordered defendant to face the steering wheel and put his hands on the steering wheel. Defendant complied with this request. Defendant then gave his registration to the officer. The officer then asked defendant where he was going and defendant replied that he was going to Bob Evans, a restaurant. The motel parking lot that defendant had pulled into was not the restaurant's parking lot but was adjacent to the restaurant's lot. After receiving the registration and license, the officer went to his vehicle were he called for backup. A check of the license and registration revealed that both were valid. After Officer Carney arrived both Scioli and him approached defendant's car. They did this because Scioli was suspicious of defendant's inconsistent statements as to were he was going, and defendant's turning of his back to the officer gave Scioli concern for his safety. Officer Scioli asked defendant if there was anything in the car that he needed to know about. Defendant stated "no". Officer Scioli then asked defendant to exit the vehicle. Scioli did this because of a concern for his own safety. Defendant did not say anything or move to exit the vehicle. Officer Scioli again asked defendant to exit the vehicle and when defendant made no immediate move to do so, Officer Scioli opened the door and asked him a third time to exit the vehicle. Defendant then turned off the ignition. Defendant did then restart the car, rolled up the windows, got out of the car, shut the door and locked the vehicle. Defendant was then asked to step to the rear of his vehicle which he did. While at the rear of the vehicle Scioli asked the defendant why he was blocking Scioli's view of the center console. Officer Scioli does not remember what or if defendant responded to his question. All Scioli remembers is that defendant complained that Scioli only pulled him over because he was black. Until defendant rolled down his windows Scioli did not know the race of the defendant due to the tinted windows. At this point, Scioli asked defendant for his keys, to which defendant stated "no". Officer Carney then grabbed the keys out of defendant's hand. Defendant then grabbed the keys back from Carney. Carney again took the keys from defendant's hand. Defendant attempted to take the keys back from Carney but was unsuccessful. No pat down of defendant was conducted. Office Carney then went to defendant's vehicle, unlocked the car, searched the center console and found crack cocaine. This search of the center console was done due to a concern for the officer's safety and concern that it may contain a weapon or contrabandConsent to search the car was not asked for by the officers nor given by defendant. A drug sniffing dog arrived at the scene. The dog then gave a positive alert to the ashtray where marijuana cigarettes were found. At this time the car was impounded and taken to the impound lot. A search of the vehicle at the impound lot resulted in the seizure of marijuana and a semiautomatic pistol in a gun case.

[*3]Police may stop an automobile when they have reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred People v. Ingle 36 NY2d 413. After a lawful traffic stop an officer may open the doors of the vehicle, People v. David L. 56 NY2d 698, require the driver to step out of the vehicle, People V. Robinson 74 NY2d 773, and shine a flashlight into the automobile, People v. Williams 223 AD2d 745.

After removing the driver from the vehicle, police may question him further regarding the traffic infraction. People v. Alexander 189 AD2d 189, People v. Woods 189 AD2d 838. If in the course of a lawful traffic stop the officer makes observations or the driver makes statements that constitute reasonable suspicion that criminal activity is afoot, the officer may continue to hold the driver for further questioning. People v. Lee 6 AD3d 1235. After an officer determines that the driver's license and registration are valid, he must issue a summons for the traffic infraction and release the driver. If the officer continues to detain the driver and question him on unrelated matters, any evidence seized as a result of this questioning must be suppressed.

People v. Milaski 62 NY2d 147 People v. Barreras 253 AD2d 369,People v. Peterson 266 AD2d 738, People v. Pena 242 AD2d 545.

In order to have grounds to search a vehicle after a lawful traffic stop the police must have probable cause to believe that the vehicle contains a weapon, contraband or evidence of a crime.People v. Blasich 73 NY2d 673, People v. Belton 55 NY2d 49. Once probable cause is established, the police may search any containers within the vehicle. People v,.Langen 60 NY2d 170.

If after a lawful traffic stop an officer has a reasonable basis to fear for his safety, he may take any action that is reasonable under the circumstances, including searching the vehicle.

People v. Irizarry 84 NY2d 854 203 AD2d 11. Once a driver is removed from a vehicle, patted down, and no weapon is found, the threat to the officer's safety no longer exists and any evidence seized from a search of the vehicle or its containers must be suppressed. People v. Torres 74 NY2d 224, People v. Mundo 99 NY2d 55, People v. Drayton 172 AD2d 849.

Based on Officer Scioli's observations of defendant's windows, that they were so dark that he could not see how many people were in the car, he had probable cause to stop the vehicle for a violation of Unlawfully Tinted Windows. After stopping defendant's car, it was proper for Scioli to demand and examine defendant's license and registration, to ask him to exit the vehicle, and to inquire further regarding the tinted windows.

After Scioli had determined that defendant's license and registration were valid, he had no further grounds to inquire of defendant on unrelated matters, if defendant had anything in the car that

he should know about. The only observation that Scioli made that led him to believe that there may be a gun or contraband in the center console was the defendant turning his back to the officer when

he requested defendant's registration. Such action by the defendant without anything more is insufficient probable cause to search the defendant's vehicle. There was nothing in defendant's actions or statements that would give the officer's probable cause to search the vehicle.

Officer Scioli testified that defendant's action of turning his back to him so that he could not see defendant's hands gave him cause for concern to his safety. Even assuming that action of defendant sufficient to support such fear, once defendant exited the car, rolled up the windows, locked the vehicle and had his keys taken from him, the threat to Officer Scioli evaporated. Under these circumstances the officers did not have sufficient probable cause to search the defendant's [*4]vehicle and the container therein.

Based upon the above findings of fact and conclusions of law, the defendant's motion to suppress those items of evidence seized from defendant's vehicle is GRANTED.

SO ORDERED.

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HONORABLE M. WILLIAM BOLLER

ACTING SUPREME COURT JUSTICE

DATED:SEPTEMBER 24, 2007

BUFFALO, NEW YORK