| People v Driscoll |
| 2012 NY Slip Op 09097 [101 AD3d 1466] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RashadDriscoll, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 19, 2010, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
The police stopped defendant in his vehicle for playing his car stereo too loudly in violationof a local noise ordinance. When one of the officers was advised by radio that defendant's paroleofficer was on his way to the scene and wished to speak to defendant, the police officer askeddefendant why he was on parole and defendant replied "for drugs." Defendant was then orderedto get out of his vehicle. Contending that he had done nothing wrong other than to play loudmusic, he at first refused but then complied and he was immediately subjected to a pat frisk.During the frisk, defendant fled the scene and was observed discarding, among other things, abag containing what was later determined to be cocaine. After defendant was charged withcriminal possession of a controlled substance in the fifth degree, he moved to suppress thecocaine on the ground that the pat frisk was illegal. County Court, finding that the facts wereuncontested and no hearing was necessary, concluded that the officers did not exceed theirauthority in conducting the frisk. Defendant then pleaded guilty to the indictment and wassentenced to a prison term of 3½ years with two years of postrelease supervision. He nowappeals, challenging the denial of his motion to suppress.[*2]
To conduct a protective pat frisk, an officer "must have'knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect isarmed or poses a threat to safety' " (People v Caicedo, 69 AD3d 954, 954 [2010], lv denied 14NY3d 886 [2010], quoting People v Batista, 88 NY2d 650, 654 [1996]; see People vSiler, 288 AD2d 625, 626 [2001], lv denied 97 NY2d 709 [2002]). Here, inconcluding that the officers were justified in conducting the frisk, County Court relied on theprobable cause to arrest defendant for the noise violation, his parole status and the suspiciousnature of his refusal to exit the vehicle. The cited factors, however, without more, do not justifythe frisk, requiring suppression of the evidence.
First, this frisk was not authorized as incident to a lawful arrest for a noise violation giventhe absence of any evidence that the officers arrested defendant prior to frisking him (seePeople v Howell, 49 NY2d 778, 779 [1980]; People v Hoffman, 135 AD2d 299, 301[1988]; compare People ex rel. Johnson v New York State Div. of Parole, 299 AD2d832, 834 [2002], lv denied 99 NY2d 508 [2003] [where the search was incident to anannounced and lawful arrest]). Next, while defendant's parole status may generally be consideredas a relevant factor in determining the reasonableness of a search (see People v Nelson,257 AD2d 765, 766 [1999], lv denied 93 NY2d 975 [1999]), there is no indication herethat the frisk was related to his parole status (see People v LaFontant, 46 AD3d 840, 841 [2007], lvdenied 10 NY3d 841 [2008]). It is true that the officers were aware of defendant's parolestatus and had been asked to detain him for questioning by the parole officer, but the paroleofficer did not conduct the frisk, request it or tell the officers he intended to conduct one (seee.g. People v Porter, 101 AD3d 44, 46-48 [2012]). Finally, although County Courtdetermined that defendant's initial refusal to exit his vehicle was suspicious, there is no evidenceof defendant's demeanor or the circumstances surrounding his refusal to exit the vehiclesufficient to support a conclusion that the officers had a reasonable suspicion that defendant hada weapon or was a threat to their safety (see People v Russ, 61 NY2d 693, 695 [1984];People v Carney, 58 NY2d 51, 54 [1982]; People v Johnson, 277 AD2d 875, 875[2000], lv denied 96 NY2d 831 [2001]; People v Muhammad, 120 AD2d 937,939 [1986]; People v St. Clair, 80 AD2d 691, 692 [1981], affd 54 NY2d 900[1981]; compare People v Nichols, 250 AD2d 370, 370-371 [1998], lv denied 92NY2d 881 [1998]). Accordingly, the motion to suppress should have been granted.
Mercure, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, motion to suppress granted, and matter remitted to the County Court ofChemung County for further proceedings not inconsistent with this Court's decision.