After reviewing the transcript of the pre-trial Dunaway/Mapp hearing held before Judicial Hearing Officer Judith Levitt, this Court adopts the Judicial Hearing Officer's findings of fact but not her recommendation.

The People called one witness, Police Officer Christopher Bruno.

Police Officer Bruno testified that on September 9, 2011, he and his partner, Officer Carolla, were in plainclothes and in an unmarked vehicle patrolling a high crime and drug activity area on the south side of Richmond Terrace. At about 9:30 PM, as he and his partner approached the intersection of Union Avenue and Richmond Terrace, he observed a grey Mercedes Benz with tinted windows. He was unable to see inside the vehicle. After the vehicle passed, the officers attempted to make a car stop. The car, being driven by the defendant, pulled over a few blocks away. Police Officer Bruno approached the driver's side of the vehicle with his flashlight on. The driver's side window was a little less than half open. The officer observed the defendant's empty hand pulling [*2]back out from underneath the front seat. Fearing for his safety and thinking that the defendant was trying to hide what could have been a weapon underneath the seat, Officer Bruno asked the defendant to step out of his vehicle. When the defendant exited the vehicle Officer Bruno patted the defendant down to make sure he didn't have any weapons on him. He had no weapons or contraband. For safety reasons, Officer Bruno's partner then led the defendant to the back of the car. Officer Bruno knelt down and looked underneath the seat that the defendant had pulled his hands from. He observed a plastic bag under the seat. He took the bag and saw that it contained smaller bags which containing a dark substance. Officer Bruno opened the large plastic bag and a strong chemical odor emanated from the bag. Based upon his training, prior arrests in narcotics and the smell from the bag, he believed the brown substance to be PCP. Police Officer Bruno placed the defendant under arrest.

The Judicial Hearing Officer found Officer Bruno's testimony to be credible, and recommended that the Defendant's motion be denied. This Court agrees with the Judicial Hearing Officer's assessment as to the officer's credibility but respectfully disagrees with the Judicial Hearing Officer's recommendation.

The defendant and the People concur that the defendant was lawfully stopped for a traffic infraction, excessive window tint. The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred (United States v Whren, 516 US 806 [1996]; People v Robinson, 97 NY2d 341, 348-9 [2001]). It was also proper for the officer to ask the driver to step out of the vehicle (People v Carvey, 89 NY2d 707 [1997]). The Officer had observed the defendant reach underneath his seat as if to hide something. An individual's Federal and State's Constitutional rights are not violated when a driver is directed to briefly step out of a lawfully stopped and detained vehicle because the "inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action" (People v Robinson, 74 NY2d 773, 774 [1989]). A police officer, in his discretion, may require a driver who commits a traffic violation to exit the vehicle even though the officer lacks any particularized reason for believing the driver possessed a weapon (Id.).

After the defendant was out of the automobile, frisked and placed at the back of the vehicle he, he was in custody but not under arrest for any substantive crime. Officer Bruno then conducted a search of the defendant's vehicle.

In order to determine whether an officer has the requisite reasonable suspicion to intrude into a stopped vehicle whose occupants have been removed and frisked, the court's inquiry is whether the police conduct was reasonable in view of the totality of the circumstances (People v Anderson, 17 AD3d 166 [2005]). But "while reasonableness is the touchstone by which police-citizen encounters are measured" (Anderson, 17 AD3d at 167-168), New York has however, through its case law, adopted what appears to be a "furtive movement plus one" rule concerning the permissibility of searches incident to car stops. Furtive movements within a car, absent an arrest for a substantive crime allowing the officers to search further (Arizona v. Gant, 556 US 332 [2009]), are not enough to justify a search of the car once the occupants have been removed. Although movements within the car may suggest that the defendant was reaching for something that might be a weapon, an officer must articulate some other suggestive factor that the defendant may possess a weapon to justify the limited intrusion of searching the area where the defendant's movements took place once the defendant is removed from the car (People v. Newman, 96 AD3d 34 [1st Dept., 2012]). A direct link to weapons, such as the recovery of bullets (People v. Ellis, 62 NY2d 393 [1984]) or the wearing of a bulletproof vest (People v. Mundo, 99 NY2d 55 [2002]), is not always [*3]necessary to predicate a search. Non-compliance with police orders and directions (People v. Vehap, 234 AD2d 210 [1st Dept 1996], lv denied 90 NY2d 865; People v. Fludd, 20 AD3d 351 [1st Dep't. 2005]), a large sum of money coupled with nervousness (People v. Jones, 39 AD3d 1169 [4th Dept 2007]) or the appearance of contraband (People v. Shabazz, 301 AD2d 412 [1st Dept 2003], lv denied 100 NY2d 560 2003) will also provide the predicate for a search of a vehicle. Here, the furtive movement of the defendant reaching underneath his seat without the presence of additional factors was not enough to justify Officer Bruno's reasonable suspicion that there could have been a weapon under the defendant's seat and that the weapon posed an "actual and specific danger" (People v Mundo, 99 NY2d 55 [2002]; People v. Carvey, 89 NY2d 707 [1997]). Additionally, New York law has rejected the theory, based on the New York Constitution, that a search of an automobile for weapons is permissible, once again absent some additional factor, based on the speculation that a weapon in a car will pose a danger to the officers should the defendant be allowed to return to the car (People v. Torres, 74 NY2d 224 [1989]; NY Const. art. I, § 12; People v. Marsh, 20 NY2d 98 [1967]).

Although the officer's actions were in all respects reasonable, the second prong of the "plus one" requirement was not met, and therefore the plastic bag which held smaller bags containing PCP must be suppressed.

Accordingly, it is hereby,

ORDERED, the findings of fact are confirmed but the recommendation of the Judicial Hearing Officer is not followed; accordingly, it is hereby

ORDERED, that the Defendant's motion to suppress physical evidence is granted.

This opinion shall constitute the Decision and Order of the Court.

The clerk shall provide a copy hereof to counsel.

Dated: July 17, 2013

Staten Island, New York

_________________________

Hon. Mario F. Mattei

Judge of the Criminal Court