People v. Hill

Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: The arresting officer violated defendant’s Fourth Amendment rights by reaching into defendant’s pocket and removing a "hide-a-key” case which, when opened, was found to contain cocaine. Although the suppression court adopted the People’s "frisk” rationale, concluding that the officer was justified in his belief that the object could have been a weapon, the court’s conclusion does not withstand scrutiny. Reaching into a person’s pocket to remove a closed container does not constitute a frisk, but rather a full-blown search that requires probable cause (People v Bernard, 41 NY2d 759, 763; People v Peters, 18 NY2d 238, 245, affd sub nom. Sibron v New York, 392 US 40; People v Joslin, 32 AD2d 859). Since the officer did not have probable cause to believe that defendant’s pocket contained a weapon or evidence of a crime, the discovery of the cocaine is tainted and defendant is entitled to its suppression.

*1018We are unable on this record to credit the officer’s testimony that he searched defendant’s pocket out of concern for his own safety and that of the other officers and patrons of the bar. Although the officer testified that he was concerned that the object might be a gun or a knife, such belief was unreasonable given the small size of the object the officer had seen. The record establishes that the hide-a-key case was approximately 2-Vi inches long and I-V2 inches wide and thus could not reasonably have been mistaken for a dangerous weapon. Moreover, at the time of the search, the police had secured the premises with approximately 11 officers. Defendant was sitting at the bar with a female companion and there was no reason to suspect that he was engaged in, or about to be engaged in, any illegal activity (cf., Terry v Ohio, 392 US 1; CPL 140.50). There is no objective basis for believing the officer’s testimony that he was concerned for his safety and that of others. Indeed, the officer expressly conceded in his testimony that he had not seen anything dangerous. We thus conclude that the officer’s testimony does not furnish any basis upon which to uphold the search of defendant’s pocket as a permissible frisk for weapons. We deem it significant that, in addition to searching defendant, police searched several other individuals at the bar, and upon discovery of additional drugs, arrested three or four other patrons. On this record, the conclusion is inescapable that the drugs were seized from defendant as part of a general search that was not authorized by a warrant and that was not supported by any individualized suspicion.

Indeed, the search is similar to that found constitutionally impermissible in Sibron v New York (392 US 40, 64-66, supra), in which the court stated that:

"Before [a policeman] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. * * *

"The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into *1019Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment”.

All concur, except Callahan, J. P., and Lawton, J., who dissent and vote to affirm, in the following Memorandum.