People v Driscoll

People v Driscoll 2012 NY Slip Op 09097 Decided on December 27, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 27, 2012
103356

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

RASHAD DRISCOLL, Appellant.

Calendar Date: November 15, 2012
Before: Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.


Scott N. Fierro, Public Defender, Elmira, for appellant,
and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John
M. Tuppen of counsel), for respondent.

MEMORANDUM AND ORDER


Rose, J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered March 19, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

The police stopped defendant in his vehicle for playing his car stereo too loudly in violation of a local noise ordinance. When one of the officers was advised by radio that defendant's parole officer was on his way to the scene and wished to speak to defendant, the police officer asked defendant why he was on parole and defendant replied "for drugs." Defendant was then ordered to get out of his vehicle. Contending that he had done nothing wrong other than to play loud music, he at first refused but then complied and he was immediately subjected to a pat frisk. During the frisk, defendant fled the scene and was observed discarding, among other things, a bag containing what was later determined to be cocaine. After defendant was charged with criminal possession of a controlled substance in the fifth degree, he moved to suppress the cocaine on the ground that the pat frisk was illegal. County Court, finding that the facts were uncontested and no hearing was necessary, concluded that the officers did not exceed their authority in conducting the frisk. Defendant then pleaded guilty to the indictment and was sentenced to a prison term of 3½ years with two years of postrelease supervision. He now appeals, challenging the denial of his motion to suppress. [*2]

To conduct a protective pat frisk, an officer "must have 'knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety'" (People v Caicedo, 69 AD3d 954, 954 [2010], lv denied 14 NY3d 886 [2010], quoting People v Batista, 88 NY2d 650, 654 [1996]; see People v Siler, 288 AD2d 625, 626 [2001], lv denied 97 NY2d 709 [2002]). Here, in concluding that the officers were justified in conducting the frisk, County Court relied on the probable cause to arrest defendant for the noise violation, his parole status and the suspicious nature of his refusal to exit the vehicle. The cited factors, however, without more, do not justify the frisk, requiring suppression of the evidence.

First, this frisk was not authorized as incident to a lawful arrest for a noise violation given the absence of any evidence that the officers arrested defendant prior to frisking him (see People v Howell, 49 NY2d 778, 779 [1980]; People v Hoffman, 135 AD2d 299, 301 [1988]; compare People ex rel. Johnson v New York State Div. of Parole, 299 AD2d 832, 834 [2002], lv denied 99 NY2d 508 [2003] [where the search was incident to an announced and lawful arrest]). Next, while defendant's parole status may generally be considered as a relevant factor in determining the reasonableness of a search (see People v Nelson, 257 AD2d 765, 766 [1999], lv denied 93 NY2d 975 [1999]), there is no indication here that the frisk was related to his parole status (see People v LaFontant, 46 AD3d 840, 841 [2007], lv denied 10 NY3d 841 [2008]). It is true that the officers were aware of defendant's parole status and had been asked to detain him for questioning by the parole officer, but the parole officer did not conduct the frisk, request it or tell the officers he intended to conduct one (see e.g. People v Porter, AD3d , , 952 NYS2d 678, 681-682 [2012]). Finally, although County Court determined that defendant's initial refusal to exit his vehicle was suspicious, there is no evidence of defendant's demeanor or the circumstances surrounding his refusal to exit the vehicle sufficient to support a conclusion that the officers had a reasonable suspicion that defendant had a weapon or was a threat to their safety (see People v Russ, 61 NY2d 693, 695 [1984]; People v Carney, 58 NY2d 51, 54 [1982]; People v Johnson, 277 AD2d 875, 875 [2000], lv denied 96 NY2d 831 [2001]; People v Muhammad, 120 AD2d 937, 939 [1986]; People v St. Clair, 80 AD2d 691, 692 [1981], affd 54 NY2d 900 [1981]; compare People v Nichols, 250 AD2d 370, 370-371 [1998], lv denied 92 NY2d 881 [1998]). Accordingly, the motion to suppress should have been granted.

Mercure, J.P., Kavanagh, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is reversed, on the law, motion to suppress granted, and matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court's decision.