As a Massachusetts criminal lawyer, one common statement of police officers found in many police reports, regarding drug and gun offenses, is that the person seemed nervous, which the officer uses to justify a car search. The New York Court of Appeals recently addressed this issue in the case of New York v. Garcia recently decided on December 18th 2012. Click here is read the Garcia decision. The Garcia decision was featured in Lawyers Weekly USA.
In the Garcia case, the New York Court of Appeals held that an officer does not have the ability to question individuals due to seemingly nervous behavior on the part of the vehicle occupants. Mere nervousness alone is not enough for a police officer to violate an individual's privacy during a routine traffic stop. In order for the officer to employ such a line of questioning of the occupants, a "founded suspicion of criminality" is necessary, not simply the nervous behavior exhibited by the occupants.
Garcia was stopped for having a brake light out along with his four male passengers. Upon approaching the vehicle, an officer asked the occupants if they had any weapons in their possession. This question was asked without suspicion of criminal activity other than nervousness from the passengers in the back seat of the vehicle.
A passenger of the vehicle openly admitted he had a knife in his possession, and was asked to place the knife on the floor and all five men were asked to vacate the vehicle while the officers searched it, finding an air pistol between the door and the seat. All of the men were handcuffed and Garcia was arrested after admitting the air guns were his.
The New York Court of Appeals held that the officer's did not have reasonable suspicion before they questioned the defendants to believe there was any indication of criminal activity. The officers must have established reasonable suspicion before asking invasive questions, and not base their question solely off of the behavior of nervous passengers.
The New York Court of Appeals held that the officer did not have reasonable suspicion to ask the passenger about weapons in the car based solely on nervous demeanor. The Garcia decision would be helpful authority to a Massachusetts criminal lawyer arguing that an exit order was impermissible. Under Massachusetts law, a police officer must have reasonable fear for their own safety before an exit order is permitted under Article 14 of the Massachusetts Declaration of Rights.