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SEARCH OF JACKET POCKET NOT PRECEDED BY PAT DOWN SEARCH; SEIZURE OF WEAPON FROM JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE.

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence taken during a search of his jacket should have been granted. The searching officer had the right to pat the defendant down for weapons but did not do so. The search of the pockets, which turned up a weapon, was not, therefore, supported by probable cause:

The search of the defendant’s right jacket pocket, from which the police recovered a gun, cannot be upheld as justifiably premised on probable cause, since the defendant had not been placed under arrest prior to the search … . “[A]n officer who reasonably suspects that a detainee is armed may conduct a frisk or take other protective measures even in the absence of probable cause to arrest” … . However, “[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry” … . “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances” … .

Here, the police officer searched the defendant’s jacket pocket without any prior visual observations of a weapon and without first conducting a pat down of the outside of the pocket. Thus, even assuming that the officer acted on reasonable suspicion that criminal activity was afoot and an articulable basis to fear for his safety, he failed to confine the scope of his search to an intrusion reasonably necessary to protect himself from harm. Accordingly, the weapon recovered as a result of the unlawful search should have been suppressed. In addition, the drugs and other items thereafter recovered must also be suppressed as fruits of the initial, unlawful search … . People v Graham, 2015 NY Slip Op 09442, 2nd Dept 12-23-15

CRIMINAL LAW (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/EVIDENCE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SUPPRESSION (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SEARCH AND SEIZURE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)

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