NY4: Frisk for a parking violation was unreasonable; just because def going in back of police car not good enough

Defendant was frisked without an articulable safety justification for a parking violation, and it was based on the fact the officer was putting defendant in the back of the patrol car. That’s not good enough. Also, the search of defendant’s pockets was without justification of there being any weapon there. People v. Solivan, 2017 NY Slip Op 09021, 2017 N.Y. App. Div. LEXIS 9142 (4th Dept. Dec. 22, 2017):

First, the search cannot be justified as a frisk for officer safety inasmuch as there was no evidence that, after defendant exited the vehicle, the officer “reasonably suspected that defendant was armed and posed a threat to [the officer's] safety” …. Second, even assuming, arguendo, that the officer was entitled to conduct a protective frisk, we conclude that he was not entitled to search defendant’s pockets. “A protective frisk is an intrusion tailored to discover the presence of concealed weapons, usually consisting of a pat-down of a person’s outer clothing … [It] should not be extended beyond its purpose of securing the safety of the officer and preventing an escape’” … Where, as here, there is no evidence that the officer believed that the individual’s pockets contained weapons, the search of those pockets is unlawful. …

At the suppression hearing, the officer justified his search of defendant’s person and pockets on the ground that he was going to be placing defendant in the police vehicle and he searched “everybody” and “anybody” that was going to be placed inside his vehicle. The officer’s position lacks merit. “Although a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” …. Here, as in Richards, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. The officer lacked any suspicion, let alone a reasonable one, “that a crime ha[d] been, [was] being, or [was] about to be committed” …. At most, the evidence established that the unidentified owner of the vehicle had committed a parking violation (Vehicle and Traffic Law § 306 [b]).

“There is no question … that a police officer is not authorized to conduct a search every time he [or she] stops a motorist for speeding or some other ordinary traffic infraction” … and, “without more[,] a mere custodial arrest for a traffic offense will not sustain a contemporaneous search of the person” …. If such conduct is not authorized for a traffic offense, then it cannot be authorized for the lesser offense of a parking violation.

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