| People v Butler |
| 2015 NY Slip Op 03458 [127 AD3d 623] |
| April 28, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Butler, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (RosemaryHerbert of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J., atsuppression hearing; Ruth Pickholz, J., at plea and sentencing), rendered October 23,2012, convicting defendant of criminal possession of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender, to a term of two years,unanimously reversed, on the law and the facts, and the indictment dismissed.
Defendant was the passenger in a vehicle stopped by the police at approximately9:00 p.m. in a "high narcotics area." As an officer approached the passenger side of thevehicle, he noticed defendant's "head turning both ways and a lot of . . .movement coming from the area of the front passenger seat." As he reached thepassenger side window, he saw defendant, who appeared nervous, "pulling his hand fromhis jacket, from the fold of his jacket." When the officer asked defendant what he "put in[his] jacket," defendant "mumbled something unintelligible or really didn't say much."The officer then reached into the car, "tapped" the pocket of defendant's jacket with theflashlight he was holding, and felt "something hard." Next, the officer ordered defendantout of the car and frisked him, feeling in his pocket a "cylinder type thing" and what feltlike a large quantity of loose pills. He also felt what he believed was a large quantity ofmoney. In response to the officer's question, defendant stated that he had medication, andthat "some" of it belonged to him. The officer removed a black plastic bag fromdefendant's pocket and handcuffed him. Upon opening the bag, the officer found that itcontained a large number of loose pills in several small sandwich bags, as well as pills intwo bottles.
The officer's observations, up until the time he arrived at the passenger window, gaverise to founded suspicion that criminality was afoot, and so justified his questionregarding what defendant had put in his pocket, which constituted a common-law inquiry(see People v Hollman, 79 NY2d 181, 184-185 [1992]). However, we find thatthe physical intrusion of tapping defendant's pocket was unauthorized. Thecircumstances did not give rise to the reasonable suspicion required to authorize a frisk.Nor was the officer's conduct justifiable as a "minimal self-protective measure" (People v Davis, 106 AD3d144, 151 [1st Dept 2013], lv denied 21 NY3d 1073 [2013]), which ispermissible in furtherance of the common-law right of inquiry, where sufficient concernsfor personal safety are present (see e.g. People v Chin, 192 AD2d 413[1st Dept 1993], lv denied 81 NY2d 1071 [1993]). The circumstances, viewed asa whole, did not suggest any need for the officer to take such a precaution. At the time ofthe officer's intrusion, defendant was not reaching for an area where a weapon might belocated, there was no suggestion that a weapon was present or that violence wasimminent, and there was no other basis for a self-protective intrusion.
Because the ensuing frisk outside the car, and the resulting arrest, depended on theinitial improper intrusion, they were invalid as well. In any event, we also find that thesearch of the plastic bag following defendant's arrest was not supported by exigentcircumstances (see People vJimenez, 22 NY3d 717 [2014]). Concur—Gonzalez, P.J., Mazzarelli,Renwick and Gische, JJ.