PEOPLE v. SANTY (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to Onondaga County Court for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). On appeal, defendant contends that County Court should have suppressed the physical evidence, i.e., the crack cocaine, that the police found in his pants as a result of a pat frisk during a traffic stop. We agree.

Insofar as relevant here, a pat down search of a traffic offender is not authorized unless, when the vehicle is stopped, there is reasonable suspicion that the defendant is armed or poses a threat to the officer's safety (see People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996]; People v. Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 228 N.E.2d 783 [1967]; People v. Everett, 82 A.D.3d 1666, 1666, 919 N.Y.S.2d 663 [4th Dept. 2011]). The requisite reasonable suspicion is simply lacking here; defendant made no evasive moves, he was not aggressive with the officer, he did not reach into his clothing or into dark hiding spots in the car, there were no telltale bulges in his clothes, he made no statements about weapons or other dangerous items, and the officer had no prior knowledge of any defendant-specific concerns (see e.g. People v. Roberts, 158 A.D.3d 1141, 1143, 70 N.Y.S.3d 688 [4th Dept. 2018]; People v. Burnett, 126 A.D.3d 1491, 1493-1494, 6 N.Y.S.3d 375 [4th Dept. 2015]; People v. Mobley, 120 A.D.3d 916, 918, 991 N.Y.S.2d 193 [4th Dept. 2014]; cf. People v. Muhammed, 196 A.D.3d 1151, 1153, 150 N.Y.S.3d 858 [4th Dept. 2021]; 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 571 U.S. 907, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013]). Contrary to the motion court's view, “non-compliant and erratic behavior” does not automatically give rise to reasonable suspicion of a threat to officer safety (see e.g. People v. Ford, 145 A.D.3d 1454, 1455-1456, 45 N.Y.S.3d 720 [4th Dept. 2016], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017]). Although defendant's flat affect and partial disrobement during the traffic stop was odd, nothing about his specific odd behavior during the episode gave rise to reasonable suspicion that he was armed or posed a threat to the officer's safety (see People v. Solivan, 156 A.D.3d 1434, 1435, 68 N.Y.S.3d 253 [4th Dept. 2017]; People v. Major, 115 A.D.3d 1, 6-7, 978 N.Y.S.2d 165 [1st Dept. 2014]). If anything, the officer's ability to peer unobstructed into defendant's open pants should have assuaged, rather than heightened, any concerns that defendant was concealing a weapon. The crack cocaine should therefore have been suppressed as the fruit of the unlawful frisk (see People v. Brown, 166 A.D.3d 506, 507, 89 N.Y.S.3d 29 [1st Dept. 2018]; Ford, 145 A.D.3d at 1456, 45 N.Y.S.3d 720).

Defendant's remaining contentions are academic in light of our determination.