As to the State’s contention that the Smith standard has been eroded by subsequent decisions, the Court observes that no decision since Smith, including Sloane, has implicitly or explicitly modified or overruled Smith. Here, the Court reaffirms the Smith heightened-caution standard for questions of passenger removal: officers may remove passengers only when the circumstances present reason for heightened caution.
Furtive movements may satisfy the heightened caution standard. The unknown nature of surreptitious movements creates risk for an officer and, in turn, that risk supports the exercise of heightened caution. It would be impractical to require officers to determine whether the movement was to hide a weapon or a box of tissues before taking any precautionary measures. Such a rule would threaten officer safety.
Here, the furtive movements inside the car were “specific and articulable facts” that warranted heightened caution and justified removal of the passenger, placing the detectives in a position lawfully to observe the contraband in plain view. The evidence was appropriately seized under the plain-view exception to the warrant requirement, and defendant’s conviction and sentence were based on properly admitted evidence.
The Court notes that defendants should state the basis for a motion to suppress when making it to allow for appropriate development of the record. The judgment of the Appellate Division is reversed. Defendant’s conviction and sentence are reinstated.
The reason why a Defendant would not want to specifically state the basis for a motion to suppress is that raising the issue in writing before the hearing encourages prosecutors to show police the potential problems with their case. When police understand that the evidence may be suppressed due to their actions, the overwhelming majority will lie about what actually occurred, believing that saying whatever needs to be said to make the conviction stick is the right thing to do.
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