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PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the street patdown search of defendant was not justified and the cocaine found in the search should have been suppressed. Defendant was a passenger in a car which was legally stopped by the police. Defendant was asked to step out of the car, which was deemed a proper request. Defendant initially refused to get out of the car and demanded an explanation for the request. At that point defendant was seized, pulled from the car, placed face down, hand-cuffed and the patdown search was conducted:

Based upon the evidence at the suppression hearing, we conclude that “the officers did not have any knowledge of some fact or circumstance that support[ed] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety’ ” … . Defendant’s evident nervousness as the officers approached the vehicle was not an indication of criminality or a threat to officer safety … . Nor was the patdown justified by the fact that the vehicle was in a high crime area … , particularly when the stop occurred on a busy street during rush hour … . Moreover, “there was no suggestion that a weapon was present or that violence was imminent” … . Finally, neither defendant’s initial refusal to exit the vehicle nor his demand for an explanation why he was being asked to exit the vehicle gave rise to a reasonable suspicion that he posed a threat to the officers’ safety … . People v Ford, 2016 NY Slip Op 08631, 4th Dept 12-23-16

CRIMINAL LAW (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SEARCH AND SEIZURE (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SUFPRESSION (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/PATDOWN SEARCH (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)

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PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT... DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY...