Summary
In Matter of James L. (133 A.D.2d 460) the challenged search into the defendant's pocket was for narcotics, not weapons (supra, at 461).
Summary of this case from People v. SmithOpinion
September 28, 1987
Appeal from the Family Court, Queens County (Torres, J.).
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, the appellant's motion to suppress certain physical evidence is granted, and the petition is dismissed.
On October 11, 1985, approximately 20 police officers, including Police Officer Timothy Mulhall, executed a search warrant which authorized the search of a grocery store premises believed to be used for the sale of narcotics. Mulhall testified that 6 or 8 officers entered the premises, which was then open for business. Following their usual procedure, one of the officers announced "Police", told everyone to freeze in place, and everyone inside the premises was patted down for weapons for the safety of the officers.
While patting down the appellant, Mulhall felt a package which he claimed he identified by touch as containing cocaine, and recovered it from the appellant's jacket pocket. Mulhall explained that he secured the package "to safeguard against [the] possible destruction of any evidence".
We find that under the circumstances herein, the hearing court erred in denying the appellant's motion to suppress the seized cocaine.
In the absence of probable cause to arrest, Mulhall's search of the appellant for weapons could only be justified at the outset if Mulhall had a reasonable belief, based on particularized facts, that the appellant was armed and dangerous (see, Ybarra v Illinois, 444 U.S. 85, 92-93, reh denied 444 U.S. 1049; Terry v Ohio, 392 U.S. 1). The standard is not satisfied by the individual's mere presence on the premises where an authorized narcotics search is taking place (see, Ybarra v. Illinois, supra, at 94). Here, Mulhall failed to testify to any facts from which he could have inferred that the appellant was armed and dangerous.
Even assuming, arguendo, that there were adequate grounds to search the appellant for weapons, the nature and scope of the search conducted by Mulhall were so clearly unrelated to that justification as to render the cocaine inadmissible. When Mulhall thrust his hand into the appellant's pocket and took the package, he was looking for narcotics, and not weapons. Thus, the search was not reasonably limited in scope to the accomplishment of the goal which might conceivably have been justified in its inception, to wit, the protection of the officer by disarming a potentially dangerous individual (see, Sibron v. New York, 392 U.S. 40, 65). The search and seizure therefore violated the guarantee of the Fourth Amendment, which does not permit, without independent justification, evidentiary searches of persons who happen to be present on the premises subject to a search warrant (see, Ybarra v. Illinois, supra, at 93-94).
In light of our determination, we need not reach the other issues raised by the appellant. Mollen, P.J., Mangano, Brown and Lawrence, JJ., concur.