Last Friday a divided Appellate Division, Fourth Department ruled that an extended investigation resulting from a tinted-windows stop was illegal, and suppressed drugs, dismissed drug possession, assault 2, resisting arrest and OGA convictions as a result (People v Edwards, 2009 WL 2635784 [4th Dept 8/28/09]).

Deputies stopped Mr. Edwards for having excessively tinted windows. After using the tint meter, deputies determined that he appeared more nervous than a simple traffic stop warranted, presumably using the nervousness meter. They delayed issuing the traffic ticket to permit them to conduct further investigation. What the Appellate Division termed "the alleged observations of crumbs of crack cocaine on the defendant's right palm" occurred during this extended investigation. Deputies demanded that Mr. Edwards exit the vehicle and surrender his keys, but did not indicate that he was under arrest. When he refused to give up his keys, police attempted to "brace defendant up against his vehicle and a struggle ensued" They all fell, a deputy was injured so Assault in the Second Degree charges resulted, along with Resisting and Obstructing Governmental Administration (OGA). Half a pound of cocaine was found in the car.

The Appellate Division ruled 3-2 that the "detention of defendant was unlawful by the time of the alleged assault, therefore the deputies were not engaged in the performance of a lawful duty", ergo dismiss the felony assault charge. For Resisting Arrest, the arrest must be authorized, so ditto that. OGA requires that police be engaged in "authorized conduct", making three for three, and the drugs found later had to be suppressed, made it a clean sweep. The crux of the ruling was that the prosecution did not establish at the hearing that the police "had reasonable suspicion to extend the traffic stop after its initial justification was exhausted".

The dissent distinguishes prior cases such as People v Banks (85 NY2d 558 [1995]) by noting that in Banks the police admitted that they had already decided to issue a ticket, and the deputy made his alleged observations before the defendant had been told he was getting a ticket for illegal tint. The dissenters, including Presiding Justice Scudder, wpuld have held that defendant's excessive nervousness rendered the police well within their rights to continue the investigation, which did not require reasonable suspicion, and that keeping the defendant did not constitute detention. The dissenters would have held that the third approach to the defendant's car "at most constituted only an approach to inquire pursuant to the first level of De Bour", meaning it was as though the defendant had parked voluntarily along the side of the road and the cops simply wanted to know why.

With two dissenters, one of them the presiding justice, odds are good that the prosecution will be granted leave.

Written by Jim Eckert, Assistant Monroe County Public Defender