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THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the motion to suppress evidence seized from a vehicle was properly denied. After observing what appeared to be a drug transaction the defective called for assistance. As one of the deputies approached defendant’s vehicle, defendant got out and walked toward the deputy. The deputy frisked the defendant, found nothing and told defendant to wait behind his vehicle. The deputy then walked to defendant’s vehicle where he saw a rolled up dollar bill and white powder on the driver’s seat. The dissent argued the deputy did not have reasonable suspicion of a crime when defendant was frisked and his observation of the drugs in the car was a product of the illegal detention of defendant:

The court properly determined that, based on the totality of the observations by the detective, which he communicated with the deputy … , the deputy had a reasonable suspicion that defendant was involved in a drug transaction … . In any event, “the seizure of [the items inside the vehicle] was not the result of the allegedly illegal detention of defendant, who was outside the parked vehicle when the police officer approached and detained him” … . Even if the deputy had not detained defendant, he could have simply walked up to the vehicle, looked in the window, and observed the drugs in plain view on the driver’s seat. Contrary to defendant’s further contention, the deputy’s observations of the rolled-up dollar bill and white powdery substance provided probable cause to arrest defendant for possession of drugs … . People v Messano, 2023 NY Slip Op 00769, Fourth Dept 2-10-23

Practice Point: Here the defendant was frisked and detained as he walked toward the deputy from his car. The deputy then looked inside defendant’s car a saw drugs. The majority held that even if defendant was illegally detained outside the car, the deputy’s observation of the drugs justified the search. The two-justice dissent argued the observation of the drugs was the product of the illegal detention.

 

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