Police said officers stopped a black Mercedes Benz that Zhou was driving shortly after midnight because “it was being driven erratically and the operator was using a cellphone.” They said the 49-year-old Zhou had a passenger with him.
Officers said they noticed a shoulder holster in the back seat and found a loaded pistol and two plastic bags containing crack cocaine inside a backpack. He and the passenger were arrested.
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http://www.xinhuanet.com/english/2018-05/25/c_137204534.htm
Howard Sturim, Acting Supreme Court Justice, announced the decision Thursday morning at the Nassau County Court, located about one hour's drive east of New York City.
"An empty holster observed in a car legally stopped without more is insufficient to establish probable cause justifying the search of the vehicle even where the People had information involving a vehicle matching the description of one used in an assault possibly involving a gun," Sturim said, citing a previous case, People Vs. Snyder.
"The defendant's motion to suppress is granted," he said.
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See People v. Snyder 178 A.D.2d 757 (1991) https://scholar.google.com/scholar_case?case=4703181557465258261&q=people+v.+snyder+vehicle&hl=en&as_sdt=4,33
Having stopped the car and having removed defendant and Wells and frisked them, nullifying any threat of danger to themselves, the police should have sought further verification as to whether the appropriate persons and car were being detained. The search of the vehicle under these circumstances was premature and in violation of the 4th Amendment (see, People v Torres, supra), and therefore the pistol should have been suppressed.
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