People v. Solivan

• Decision Date: 22 December 2017
• Docket Number: 1390,KA 16–01414
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan SOLIVAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1434

68 N.Y.S.3d 253

The PEOPLE of the State of New York, Respondent,

v.Jonathan SOLIVAN, Defendant–Appellant.

1390

KA 16–01414

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 22, 2017

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDERMemorandum:

On appeal from a judgment convicting him upon a plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court (Piampiano, J.) erred in refusing to suppress physical evidence seized from his person and a vehicle in which he had been located. As the People correctly concede, the court erred in refusing to suppress the evidence.

With respect to the marihuana seized from defendant's pocket, we agree with defendant that the police officer lacked any basis upon which to search defendant's person. The police officer observed defendant sitting inside a parked vehicle lacking a valid inspection. The officer approached the vehicle and, upon seeing a kitchen knife on the floorboard of the vehicle, asked defendant to exit the vehicle. Without any further provocation from defendant, the officer conducted a search of defendant's person, discovering a small amount of marihuana in defendant's pocket. That search was unlawful for a variety of reasons.

First, the search cannot be justified as a frisk for officer safety inasmuch as there was no evidence that, after defendant exited the vehicle, the officer "reasonably suspected that defendant was armed and posed a threat to [the officer's] safety" ( People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612 [4th Dept. 2012], lv denied 20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013], cert denied ––– U.S. ––––, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013] ; see People v. Lipscomb, 179 A.D.2d 1043, 1044, 579 N.Y.S.2d 302 [4th Dept. 1992] ; cf. People v. Carter, 109 A.D.3d 1188, 1189, 971 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ). Second, even assuming, arguendo, that the officer was entitled to conduct a protective frisk, we conclude that he was not entitled to search defendant's pockets. "A protective frisk is an intrusion tailored to discover the presence of concealed weapons, usually consisting of a pat-down of a person's outer clothing ... [It] ‘should not be extended beyond its purpose of securing the safety of the officer and preventing an escape’ " ( Lipscomb, 179 A.D.2d at 1044, 579 N.Y.S.2d 302, quoting People v. Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 228 N.E.2d 783 [1967] ). Where, as here, there is no evidence that the officer believed that the individual's pockets contained weapons, the search of those pockets is unlawful (see People v. Diaz, 81 N.Y.2d 106, 109, 595 N.Y.S.2d 940, 612 N.E.2d 298 [1993] ; People v. Williams, 217 A.D.2d 1007, 1007–1008, 629 N.Y.S.2d 607 [4th Dept. 1995] ; Lipscomb, 179 A.D.2d at 1044, 579 N.Y.S.2d 302 ).

At the suppression hearing, the officer justified his search of defendant's person and pockets on the ground that he was going to be placing defendant in the police vehicle and he searched "everybody" and "anybody" that was going to be placed inside his vehicle. The officer's position lacks merit. "Although a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place" ( People v. Kinsella, 139 A.D.2d 909, 911, 527 N.Y.S.2d 899 [4th Dept. 1988] ; see People v. Richards, 151 A.D.3d 1717, 1719, 57 N.Y.S.3d 803 [4th Dept. 2017] ). Here, as in Richards, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. The officer lacked any suspicion, let alone a reasonable one, "that a crime ha [d] been, [was] being, or [was] about to be committed" ( People v. Martinez, 80 N.Y.2d 444, 447, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992] ). At most, the evidence established that the unidentified owner of the vehicle had committed a parking violation ( Vehicle and Traffic Law § 306[b] ).

"There is no question ... that a police officer is not authorized to conduct a search every time he [or she] stops a motorist for speeding or some other ordinary traffic infraction" ( Marsh, 20 N.Y.2d at 100, 281 N.Y.S.2d 789, 228 N.E.2d 783 ) and, "without more[,] a mere custodial arrest for a traffic offense will not sustain a contemporaneous search of the person" ( People v. Weintraub, 35 N.Y.2d 351, 353, 361 N.Y.S.2d 897, 320 N.E.2d 636 [1974], citing People v. Adams, 32 N.Y.2d 451, 455, 346 N.Y.S.2d 229, 299 N.E.2d 653 [1973] and Marsh, 20 N.Y.2d at 101–102, 281 N.Y.S.2d 789, 228 N.E.2d 783 ; cf. People v. Troiano, 35 N.Y.2d 476, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183 [1974] ). If such conduct is not authorized for a traffic offense, then it cannot be authorized for the lesser offense of a parking violation.

We likewise agree with defendant that the court erred...