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

1373
KA 12-01600
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK A. SMITH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, ORRICK, HERRINGTON &
SUTCLIFFE LLP, WASHINGTON, DC (JEREMY R. PETERMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered May 30, 2012. The judgment convicted
defendant, upon a plea of guilty, of criminal possession of a
controlled substance in the third degree and criminal possession of a
controlled substance in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of the
omnibus motion seeking to suppress physical evidence is granted, the
indictment is dismissed and the matter is remitted to Monroe County
Court for proceedings pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
possession of a controlled substance in the fourth degree (§ 220.09
[1]). We agree with defendant that County Court erred in denying that
part of his omnibus motion to suppress evidence that a police officer
retrieved from his underwear during a traffic stop. The officer
testified at the suppression hearing that he responded to a 911 call
reporting that a man was selling drugs at a certain address. The
officer observed an occupied vehicle in the driveway of the residence
and, when he saw the vehicle drive away, he followed it and observed
dark tinted windows. The officer stopped the vehicle based upon that
apparent traffic infraction and, because defendant advised him that he
did not have a driver’s license, the officer was justified in asking
defendant to exit the vehicle (see People v Mundo, 99 NY2d 55, 58;
People v Everett, 82 AD3d 1666, 1666). The officer testified that he
began a pat search at defendant’s waist area and, when he moved his
hands toward defendant’s back in that area, defendant leaned forward.
The officer told defendant to stand straight and placed him in
                                 -2-                          1373
                                                         KA 12-01600

handcuffs for the officer’s safety before continuing the pat search in
the back area of defendant’s waist. When defendant leaned forward a
second time, the officer asked defendant if there was something in his
pants that the officer “needed to know about.” Defendant did not
respond, and the officer pulled open the front of defendant’s
underwear, looked at his genital area and saw a plastic bag in the
bottom of defendant’s underwear, which he retrieved. The court
determined that the search of that area constituted a visual cavity
inspection, which was supported by “a reasonable suspicion to believe
that defendant had secreted a weapon or contraband in the area that
the officer was attempting to search.” That was error.

     We note that the record does not support a conclusion that the
pat search was justified based on a “reasonable suspicion that
defendant committed or was about to commit a crime at the time of the
[pat search]” (People v Burnett, 126 AD3d 1491, 1493), nor did the
officer otherwise have a reasonable basis for fearing for his safety,
to justify the pat search (cf. People v Sims, 106 AD3d 1473, 1474,
appeal dismissed 22 NY3d 992). Nevertheless, because the officer
intended to transport defendant to the police station to charge him
with the traffic infractions, he was justified in conducting a pat
search for weapons before placing defendant in the patrol vehicle (see
People v Taylor, 57 AD3d 1504, 1504-1505, lv denied 12 NY3d 788). We
note that a person’s underwear, “unlike a waistband or even a jacket
pocket, is not ‘a common sanctuary for weapons’ ” (Burnett, 126 AD3d
at 1494) and, in any event, the officer did not pat the outside of
defendant’s clothing to determine whether defendant had secreted a
weapon in his underwear after defendant leaned forward. Instead, he
conducted a strip search by engaging in a visual inspection of the
private area of defendant’s body (see Matter of Demitrus B., 89 AD3d
1421, 1422; see generally People v Hall, 10 NY3d 303, 306, cert denied
555 US 938). The officer did not, however, engage in a visual cavity
inspection, as determined by the hearing court (see Hall, 10 NY3d at
306). We conclude that a visual inspection of the private area of
defendant’s body on a city street was not based upon reasonable
suspicion that defendant was concealing a weapon or evidence
underneath his clothing (cf. Demitrus B., 89 AD3d at 1422; People v
Harry, 63 AD3d 604, 604-605, lv denied 13 NY3d 860), and thus it was
“patently unreasonable” (Hall, 10 NY3d at 311 n 8). Because the
officer’s actions violated defendant’s Fourth Amendment right against
unreasonable search and seizure (see generally id. at 310-311), we
reverse the judgment, vacate the plea, grant that part of the omnibus
motion seeking to suppress physical evidence, dismiss the indictment
and remit the matter to County Court for proceedings pursuant to CPL
470.45.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
