On August 1, 2011, a Mapp hearing was held to determine if property taken from the defendant at the time of arrest should be suppressed as a result of an unlawful search and seizure.

The testimony at the hearing consisted of one witness, Rensselaer County Sheriff Deputy Steven J. Wohleber. He testified that the drug task force, of which he is a member, conducted an automobile stop to execute an arrest warrant for the driver.The Deputy stated that he had no personal knowledge regarding the arrest warrant but assisted with the stop by approaching the front seat passenger. When the Deputy reached the side window, he asked the passenger for identification and further inquired if the passenger had anything illegal on him. In response, the [*2]passenger handed over a four inch "stem" used to smoke crack cocaine which allegedly contained a brown residue.^[FN1] Thereafter, the passenger, Keith Brandolino, the defendant herein, was placed under arrest for criminal possession of controlled substance in the seventh degree.

Risks to police during a vehicle stop are many and relate to both the drivers and passengers. Courts have recognized that legitimate safety concerns of the police justify intrusions to the liberty of passengers (People v. Forbes,283 AD2d 92, 94-95 [2d Dept 2001] citing Maryland v. Wilson, 519 US 408 [1997]). For example, following a valid motor vehicle stop, courts have permitted police, under appropriate circumstances, to order passengers to stay in a vehicle, or to order them out (People v. Forbes, 283 AD2d at 95), to order passengers to keep their hands within view of the investigating officers (People v. Tyler, 262 AD2d 136 [1st Dept 1999]), and permitting police officers to lean in an open window to speak with a passenger (People v. Vasquez, 106 AD2d 327 [1st Dept 1984]). Police conduct however is not without limits.

The issue here is whether the police inquiry of the defendant as to whether he had anything illegal on him in the context of the facts presented in this case was constitutionally permissible.

Where police acting in their criminal law enforcement capacity initiate an encounter with private citizens, the propriety of the encounter must be assessed under the four-tiered framework articulated by the Court of Appeals in People v. DeBour (40 NY2d 210 [1976]) and reaffirmed in People v. Hollman (79 NY2d 181 [1992]). Under the first tier of Debour, the request for information made by the police is permissible as a minimal intrusion when there is some objective credible reason for the interference not necessarily indicative of criminality (DeBour, 40 NY2d at 223; Hollman, 79 NY2d at 189). A common law inquiry however, the next DeBour level, requires that the police officer have a "founded suspicion that criminality is afoot" before more intrusive questions may be asked of an individual (Hollman, 79 NY2d at 191).

In this case, the Deputy first asked the defendant for identification, which is permissible under the first level of DeBour (see also People v. Landrum, NYLJ, March 12, 2004, at 17, col 1 [Sup Ct, New York County, Mangano, J]). His next inquiry, as to whether the defendant had any illegal items on him, increased the level of the inquiry to that of a "common law inquiry" because it would lead one to reasonably believe that he or she is suspected of some wrongdoing (People v. Simmons, 79 AD3d 431, 432 [1st Dept 2010]). As such, the Deputy needed to posses a "founded suspicion that criminality [was] afoot" (People v. Hollman, 79 NY2d at 184-185, citing People v. Debour). There was no evidence presented at the hearing to support such a finding.

Certain behavior may lead police to believe that criminality is afoot such as that expressed in People v Alvarez. In Alvarez, when the police asked a passenger in a taxi cab whether he had any weapons in his possession, it was deemed a proper level two inquiry because the hearing testimony demonstrated that the vehicle stop took place in a high crime area and the passenger was hesitant and unsure about his destination, which the appellate court found "puzzling" given the fact the defendant was in a taxi (People v Alvarez, 308 AD2d 184, 188 [1st [*3]Dept 2003]).

In this case, no such testimony was elicited during the hearing. Other than the defendant being in the company of a wanted person, there was no testimony, for example, that the defendant engaged in any furtive conduct (People v. Smith, 280 AD2d 340 [1st Dept 2001]), or that his appearance caused the Deputy to believe a concealed weapon was present (People v. Muniz, 12 AD3d 937 [3d Dept 2004]). Absent 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 (People v. Garcia,85 AD3d 28 [1st Dept 2011). Therefore, the defendant's motion is GRANTED.

This shall constitute the Decision and Order of the Court.

So ordered.

Dated: September 26, 2011

Troy, New York

____________________________________________

Christopher T. Maier

Troy City Court Judge