| People v Smith |
| 2015 NY Slip Op 09517 [134 AD3d 1453] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMark A. Smith, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Orrick, Herrington &Sutcliffe LLP, Washington, Dc (Jeremy R. Peterman of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered May 30, 2012. The judgment convicted defendant, upon a plea of guilty, ofcriminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, that part of the omnibus motion seeking to suppress physicalevidence is granted, the indictment is dismissed and the matter is remitted to MonroeCounty Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a controlled substance in thefourth degree (§ 220.09 [1]). We agree with defendant that County Courterred in denying that part of his omnibus motion to suppress evidence that a policeofficer retrieved from his underwear during a traffic stop. The officer testified at thesuppression hearing that he responded to a 911 call reporting that a man was sellingdrugs at a certain address. The officer observed an occupied vehicle in the driveway ofthe residence and, when he saw the vehicle drive away, he followed it and observed darktinted windows. The officer stopped the vehicle based upon that apparent trafficinfraction and, because defendant advised him that he did not have a driver's license, theofficer was justified in asking defendant to exit the vehicle (see People v Mundo,99 NY2d 55, 58 [2002]; Peoplev Everett, 82 AD3d 1666, 1666 [2011]). The officer testified that he began a patsearch at defendant's waist area and, when he moved his hands toward defendant's backin that area, defendant leaned forward. The officer told defendant to stand straight andplaced him in handcuffs for the officer's safety before continuing the pat search in theback area of defendant's waist. When defendant leaned forward a second time, the officerasked defendant if there was something in his pants that the officer "needed to knowabout." Defendant did not respond, and the officer pulled open the front of defendant'sunderwear, looked at his genital area and saw a plastic bag in the bottom of defendant'sunderwear, which he retrieved. The court determined that the search of that areaconstituted a visual cavity inspection, which was supported by "a reasonable suspicion tobelieve that defendant had secreted a weapon or contraband in the area that the officerwas attempting to search." That was error.
We note that the record does not support a conclusion that the pat search wasjustified based on a "reasonable suspicion that defendant committed or was about tocommit a crime at the time of the [pat search]" (People v Burnett, 126 AD3d 1491, 1493 [2015]), nor didthe officer otherwise have a reasonable basis for fearing for his safety, to justify the patsearch (cf. People v Sims,106 AD3d 1473, 1474 [2013], appeal dismissed 22 NY3d 992 [2013]).Nevertheless, because the officer intended to transport defendant to the police station tocharge him with the traffic infractions, he was [*2]justified in conducting a pat search for weapons beforeplacing defendant in the patrol vehicle (see People v Taylor, 57 AD3d 1504, 1504-1505 [2008],lv denied 12 NY3d 788 [2009]). We note that a person's underwear, "unlike awaistband or even a jacket pocket, is not 'a common sanctuary for weapons' "(Burnett, 126 AD3d at 1494) and, in any event, the officer did not pat the outsideof defendant's clothing to determine whether defendant had secreted a weapon in hisunderwear after defendant leaned forward. Instead, he conducted a strip search byengaging in a visual inspection of the private area of defendant's body (see Matter of Demitrus B., 89AD3d 1421, 1422 [2011]; see generally People v Hall, 10 NY3d 303, 306 [2008],cert denied 555 US 938 [2008]). The officer did not, however, engage in a visualcavity inspection, as determined by the hearing court (see Hall, 10 NY3d at 306).We conclude that a visual inspection of the private area of defendant's body on a citystreet was not based upon reasonable suspicion that defendant was concealing a weaponor evidence underneath his clothing (cf. Demitrus B., 89 AD3d at 1422; People v Harry, 63 AD3d604, 604-605 [2009], lv denied 13 NY3d 860 [2009]), and thus it was"patently unreasonable" (Hall, 10 NY3d at 311 n 8). Because the officer's actionsviolated defendant's Fourth Amendment right against unreasonable search and seizure(see generally id. at 310-311), we reverse the judgment, vacate the plea, grant thatpart of the omnibus motion seeking to suppress physical evidence, dismiss the indictmentand remit the matter to County Court for proceedings pursuant to CPL 470.45.Present—Scudder, P.J., Centra, Carni, Valentino and DeJoseph, JJ.