People v. Washington , 918 N.Y.2d 485 ( 2011 )

Defendant was a passenger in a car that the police lawfully stopped. After the police removed the occupants from the car and frisked them, an officer leaned into the car and saw a revolver, which he seized. Another officer had already obtained the driver’s consent to search the car. However, the hearing evidence is clear that, at the time of the search, the searching officer was not aware of the consent. The officer who obtained the driver’s consent neither communicated that fact to the searching officer, nor otherwise directed him to search the car.

The hearing court found that the seizure of the revolver could not be justified under the plain view doctrine because the officer saw it only after leaning into the car. Instead, the court upheld the search on the sole basis of consent, concluding that the driver’s consent justified the search even though it was not communicated to the officer who conducted the search. This was error. Although the existence of the communication may be established by inference (see People v Gonzalez, 91 NY2d 909, 910 [1998]), imputation of one officer’s knowledge to another requires an actual communication between the officers (see People v Brnja, 50 NY2d 366, 373 n 4 [1980]; People v Skinner, 220 AD2d 350 [1995], lv denied 87 NY2d 1025 [1996]).

As alternative grounds for affirmance, the People argue, as they did at the suppression hearing, that the car occupants’ furtive conduct in the back seat, upon the officers’ approach, provided the officers with a “reasonable objective basis” to make a protective sweep of the back of the car to search for weapons (see People v Mundo, 99 NY2d 55, 57-59 [2002]; People v Anderson, 17 AD3d 166, 167-168 [2005]). Although there was testimony at the suppression hearing on the issue, it was not resolved by the court. We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make findings of fact with respect to the issue based upon the evidence presented at the suppression hearing (see People v LaFontaine, 92 NY2d 470, 474-475 [1998]; People v Jones, 39 AD3d 1169 [2007]; People v McDonnell, 27 Misc 3d 56 [App Term, 2d Dept 2010]). Concur — Andrias, J.E, Friedman, Acosta and DeGrasse, JJ.