People v. Smith

*457OPINION OF THE COURT

Kane, J. P.

Defendant appeals from a judgment convicting him of third degree criminal possession of a controlled substance, asserting only that County Court erred in denying his motion to suppress. We disagree and affirm.

The record reveals that police officers obtained a "no-knock” warrant authorizing the search of the first-floor rear apartment at 151 Front Street in the City of Binghamton, Broome County, and of its renters, Dorothy Haycook and Charlie Watt, for controlled substances and illegal handguns. The application for the warrant alleged that a quantity of cocaine and a small silver automatic handgun had been seen in the apartment within the preceding 10 days. The warrant was executed on the evening of April 14, 1989, with seven police officers gaining entry into the apartment by means of a battering ram. When the police officers entered the apartment, they found five people present including defendant, Haycook and Watt. By prearrangement, the police officers immediately "secured” all occupants by handcuffing them behind their backs and placing them face down on the floor. The police officers then proceeded to frisk all occupants except Haycook, who had been in the shower. The pat-down of defendant disclosed a hard object in his pants pocket, which the officer in charge of the operation removed. Upon inspection, the hard object was found to consist of two "clips”, each consisting of 10 small perfume-type vials banded together into a bundle resembling a 35 millimeter film canister in shape. The vials were found to contain cocaine, giving rise to the instant charge.

Defendant moved to suppress the cocaine found on his person and inculpatory statements that followed his arrest. After a hearing, County Court denied the motion, finding that the police action was necessary to neutralize all occupants "for a brief moment” to enable the police to safely secure the premises. Defendant then entered a plea of guilty to the charge and now appeals.

Defendant argues that the police impermissibly exceeded the scope of the search warrant and pat-frisked him without a separate "particularized suspicion” of criminality. In our view, the police pat-frisk of defendant was justified, given the scope of the search warrant and the circumstances surrounding the exercise thereof. The warrant was based in part on averments *458that a small automatic handgun was located on the premises, and the language in the warrant specifically allowed the police to search for it. The fact that the warrant was issued to search the premises, a private apartment, for illegal drugs could easily give rise to a heightened suspicion by the police that the handgun would be in the possession of anyone found on the premises (see, People v Gonzales, 86 AD2d 634, 635; see also, People v McRay, 51 NY2d 594, 605). Moreover, it should be noted that the mere presence of a defendant at the scene, under certain circumstances, may furnish a trained police officer with probable cause justifying a search (see, People v Martin, 32 NY2d 123, 125; cf., People v Ortiz, 103 AD2d 303, 306, affd 64 NY2d 997). This is particularly so when the search is for weapons and is predicated on "a police officer’s reasonable suspicion that the individual to be searched is presently dangerous” (People v Behlin, 83 AD2d 557, 558, appeal dismissed 55 NY2d 729, cert denied 455 US 1025). In this instance, given the averred presence of drugs and a weapon on the premises, the police officers executing the warrant were entitled to protect themselves from a reasonably perceived harm by patting down defendant for weapons (see, People v Soler, 92 AD2d 280, 286). Moreover, the police officer who conducted the search possessed a clear, objective apprehension that the hard object he felt in defendant’s pocket was a weapon. The search warrant application specifically noted the presence of a small handgun; under the circumstances, the search was justified (see, People v Behlin, supra).

Cases cited by defendant do not direct a different result. For example, in Ybarra v Illinois (444 US 85) the warrant authorized the search of a public tavern with the police conducting a cursory search for weapons without any predisposition, nor mention in the warrant, that there were weapons on the premises or that those searched possessed any weapons (see, supra, at 88). In Matter of James L. (133 AD2d 460) the challenged search into the defendant’s pocket was for narcotics, not weapons (supra, at 461). Likewise, in both People v Chinchillo (120 AD2d 266) and People v Ballejo (114 AD2d 902) the search was conducted without any basis for concluding that the defendant was dangerous or carrying a weapon. Here, given that a handgun was seen on the premises prior to the search and that the police were entitled to secure the premises, together with the reasonable suspicion held by the searching officer that the hard object felt in defendant’s *459pocket was a weapon, the facts fully support the validity of the search and the items seized. Accordingly, we affirm.