Judges: Callahan, Lawton
Filed Date: 3/8/1991
Status: Precedential
Modified Date: 10/31/2024
Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: The arresting officer violated defendant’s Fourth Amendment rights by reaching into defendant’s pocket and removing a "hide-a-key” case which, when opened, was found to contain cocaine. Although the suppression court adopted the People’s "frisk” rationale, concluding that the officer was justified in his belief that the object could have been a weapon, the court’s conclusion does not withstand scrutiny. Reaching into a person’s pocket to remove a closed container does not constitute a frisk, but rather a full-blown search that requires probable cause (People v Bernard, 41 NY2d 759, 763; People v Peters, 18 NY2d 238, 245, affd sub nom. Sibron v New York, 392 US 40; People v Joslin, 32 AD2d 859). Since the officer did not have probable cause to believe that defendant’s pocket contained a weapon or evidence of a crime, the discovery of the cocaine is tainted and defendant is entitled to its suppression.
Indeed, the search is similar to that found constitutionally impermissible in Sibron v New York (392 US 40, 64-66, supra), in which the court stated that:
"Before [a policeman] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. * * *
"The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into
All concur, except Callahan, J. P., and Lawton, J., who dissent and vote to affirm, in the following Memorandum.