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Stop and Frisk.

[These facts are from People v. Bautista]

At about 3:00 a.m., on February 20, 1992, two uniformed police officers, Officer Ronda and Officer Caban, were patrolling in a marked car in the Bronx. Seeing a livery cab run a red light on the Grand Concourse, the officers pulled the cab over. As the police car came to a stop, both officers noticed defendant the sole passenger of the cab shift from his seat behind the driver to the middle of the backseat. Defendant's movement drew the attention of the officers, who thought it was "unusual."

Although the street was brightly lit, it was 3:00 a.m. and Officer Ronda carried a flashlight. While the cab driver was handing over his paperwork, Officer Ronda shone his light into the cab to see the occupants' hands, paying "special attention" to the defendant.

Officer Ronda then noticed that defendant was "wearing a larger object protruding from his chest." Defendant wore a sweatshirt and an unbuttoned leather coat over what Officer Ronda believed to be a bulletproof vest, the outline of which was visible. Officer Ronda was familiar with the appearance of bulletproof vests because he wore one every day and had observed his fellow officers wearing them. As the officer later testified, he knew "what a vest looks like when it's sitting up on somebody's chest."

The rear windows of the cab were closed. Opening the cab's left rear door, Officer Ronda leaned his head in and asked, "What do you got on there? What do you got on there?" Defendant twice replied, "I don't have anything on." Defendant's evasive denials raised Officer Ronda's suspicions since he still believed the defendant was wearing a bulletproof vest. As the officer later testified on cross-examination:

Q: It was only after touching the vest when he drops his hands that you fear for your safety?

A: Well, it was after I asked him the questions and he said and he said that he wasn't wearing anything, that's when my suspicion was arisen.

Believing that the defendant was "avoiding" him, Officer Ronda then touched the defendant on the chest, where he believed the bulletproof vest to be, and felt a very heavy "Kevlar" vest. At this moment, defendant "tensed up" and threw his hands to the sides with his palms down in the seat. His attention drawn to where the defendant had suddenly pressed his hands, Officer Ronda looked down and saw a bulge in the right-hand pocket of appellant's leather coat which lay flush on the seat. At that point, fearing for his safety, the officer grabbed the pocket, felt a gun, and called to his partner for assistance.

Identify the issues and determine the propriety of the officers' actions under the Federal Constitution. In New York, it is not against the law for an individual to be wearing a bulletproof vest. To see how the New York Court of Appeals decided the case, see People v. Bautista, 1996 WL 625552.

Doug Guidorizzi

Emory School of Law

Answer

The touchstone of any analysis of a governmental invasion of a citizen's person under the "Fourth Amendment and the constitutional analogue of New York State is reasonableness." People v. Chestnut, 51 N.Y.2d 14, 22 n.7. A determination of reasonableness turns upon the facts of each case.

Since the livery cab had gone through a red light, there is no question that the stop was appropriate. Under the facts here, the frisk was also appropriate.

Yet the propriety of a frisk is not automatic. The officer must have knowledge of some fact of circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety. The question remains whether the circumstances in this case support a reasonable suspicion that defendant was armed or dangerous. We think the lower courts were correct that they do.

The facts giving rise to the constitutionally permissible intrusion by the officer are not negated by the officer's testimony that, at the point leading up to the touching, he did not fear for his safety.

While the officer here did not indicate that he had a specific fear that the defendant was armed and dangerous, he expressly testified that he became suspicious based upon the facts he had observed.

Although a bulletproof vest is properly linked to the inference that the wearer might be carrying a gun, more is usually required to justify a frisk of the suspect. DeBour, 40 N.Y.2d at 216 ("innocuous behavior alone will not generate a foundation of reasonable suspicion that a crime is at hand"). Here, the frisk was undertaken only after defendant's unusual movement immediately following the valid traffic stop, the defendant's evasive denials about his bulletproof vest and the officer's observation of what his personal experience taught him was a bulletproof vest on a person.

Accordingly, the order of the Appellate Division upholding the defendant's conviction should be affirmed.

 

 
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