        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

532
KA 12-00819
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYNELL L. TISDALE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, SULLIVAN & CROMWELL
LLP, NEW YORK CITY (CHRISTOPHER G. HORNIG OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered March 15, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the third degree, criminal possession of
a controlled substance in the fourth degree, unlawful possession of
marihuana and consumption or possession of alcoholic beverages in
certain motor vehicles.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of the
motion seeking to suppress physical evidence relating to the first and
second counts of the indictment is granted, the first and second
counts of the indictment are dismissed and the matter is remitted to
Supreme Court, Monroe County, for further proceedings in accordance
with the following memorandum: Defendant appeals from a judgment of
Supreme Court (Winslow, J.) convicting him, upon his plea of guilty,
of criminal possession of a controlled substance in the third degree
(Penal Law § 220.16 [1]), criminal possession of a controlled
substance in the fourth degree (§ 220.09 [1]), unlawful possession of
marihuana (§ 221.05), and consumption or possession of alcoholic
beverages in certain motor vehicles (Vehicle and Traffic Law § 1227
[1]). We agree with defendant that County Court (Geraci, J.) erred in
refusing to suppress the cocaine recovered during an unlawful search
of his person by the police.

     According to the evidence presented at the suppression hearing,
the police approached a vehicle parked more than 12 inches from the
curb on a city street, which constitutes a traffic infraction. Upon
observing two open bottles of beer in the center console, an officer
directed defendant, who was in the front passenger seat, to exit the
vehicle. Defendant complied, identifying himself and providing the
officer with his name, address, and social security number. Noting
                                 -2-                           532
                                                         KA 12-00819

that defendant’s left hand was clenched, the officer asked defendant
to open that hand and, when defendant did so, the officer observed a
dollar bill containing marihuana residue. The officer handcuffed
defendant and asked him if there was anything on his person that could
harm the officer. Defendant responded in the negative. When asked if
he had any illicit substances on him, defendant directed the officer
to the front pocket of his sweatpants, from which the officer pulled a
small bag of marihuana. Defendant denied having any other contraband.

     Without conducting any further pat down of defendant or gathering
any other information, the officer untied the string holding up
defendant’s sweatpants, pulled the front of the sweatpants and
defendant’s underwear away from defendant’s body, and looked down the
front of defendant’s body, past his genitals to his thighs. Observing
no contraband, the officer directed defendant to lean over the rear of
the vehicle, whereupon he pulled back defendant’s sweatpants and
underwear at the rear of defendant’s body and observed a bag in the
area “underneath” his buttocks. The officer retrieved the bag, which
was later determined to contain crack cocaine. Another small bag
containing crack cocaine was found by the officer in the same general
area.

     As the People correctly concede, the search performed by the
officer constituted a strip search (see People v Smith, 134 AD3d 1453,
1454), which must be justified by “a reasonable suspicion that the
arrestee is concealing evidence underneath clothing” (People v Hall,
10 NY3d 303, 310-311, cert denied 555 US 938). We conclude that the
officer did not have the requisite reasonable suspicion. Defendant
was fully cooperative with the officer, admitting his possession of
marihuana and denying possession of any other contraband. There was
no indication that defendant might be concealing any contraband under
his clothing, and the mere fact that he possessed marihuana does not
justify a strip search. Although the People assert that the search
was justified because defendant appeared to be nervous about being
searched, the record reflects that defendant became nervous only after
the officer began to perform the strip search (cf. People v Walker, 27
AD3d 899, 900-901, lv denied 7 NY3d 764). We therefore reverse the
judgment, vacate the plea, grant that part of defendant’s motion
seeking to suppress the cocaine, dismiss the first and second counts
of the indictment, and remit the matter to Supreme Court for further
proceedings on the remaining counts.


                                                Frances E. Cafarell




Entered:   June 17, 2016
                                                Clerk of the Court
