In this case decided by the New York State Court of Appeals, the judges find that the police were allowed to conduct a limited protective search this guy's car because they reasonably thought the car had weapons.
The case is People v. Hardee, decided on November 16. This brief ruling does not tell us what happened to occasion the search. But a lengthy dissenting opinion from Judge Stein (joined by two other judges, making this a 4-3 ruling) gives more detail. According to the dissent, the police pulled over defendant in Manhattan for driving more than 20 MPH over the speed limit. When the police pulled him over, he seemed nervous and hyper and admitted there was alcohol in the car. He also looked over his shoulder a few times and did not exit the car until the police had asked him to do so two or three times. Once out of the car, he was cooperative during the frisk, but with his hands placed against an adjacent vehicle, he looked over his shoulder a few times toward his car. When the police searched the car, they found a bag inside. They found a gun inside.
The majority said this search was legal under the Fourth Amendment. The dissenters say it was not. They note that the Fourth allows the police to conduct a limited protective search if they reasonably think the car has a weapon inside, and that "it may be difficult for police officers to determine whether suspicious behavior is merely ordinary nervousness related to police encounters, indicates the presence of a weapon" or the existence of other contraband.
Judge Stein makes it clear that suspects do not have to actually retrieve a weapon before the officer may believe the car has a gun or some other contraband. But this case does not cut it, she writes, because "no facts . . . established that, at the time of the search, defendant had displayed any behavior that would give rise to a belief that a weapon located in the vehicle presented an actual and specific danger to the safety of the officers." She adds, "even assuming that there was a reasonable basis to believe that there was a weapon in the car -- a factor which I do not concede is satisfied here -- there is no record support for a finding that a protective search was justified."
Not only did defendant not evade the police vehicle or refuse to pull over his car, Judge Stein writes, but his nervousness was not sufficient to justify a protective search, as per Court of Appeals case law. He did not reach into his car to retrieve anything, and he exited the car without any hostility. This is a lengthy dissent, particularly since the majority ruling is only a few paragraphs long. But Judge Stein can only get two judges to join her. That's not enough for a majority, so the conviction for possessing an unlawful weapon is sustained.