Opinion
January 31, 1992
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Doerr, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law, motion granted, and indictment dismissed. Memorandum: Defendant was the rear seat passenger in a vehicle stopped by City of Buffalo police officers, allegedly for failing to signal a left turn. An officer approached the driver and asked him to exit the vehicle. As the driver complied, the officer detected the odor of alcohol. He frisked the driver as a prelude to requiring him to perform certain field sobriety tests, and felt a hard object in the driver's pocket. He seized the object, which turned out to be a package containing a small amount of cocaine and a quantity of money.
The driver was arrested and defendant and another rear seat passenger were told to exit the vehicle and stand behind it with their hands on the car and their legs spread. An officer then asked defendant to empty his pockets. Defendant removed a handgun from his left pocket, which he dropped on the ground and kicked under the car. Defendant took an envelope, which contained cocaine, from his right pocket and placed it on the car. Defendant was arrested and charged with possession of a weapon and possession of a controlled substance.
Defendant's motion to suppress the gun and the drugs should have been granted. Even assuming that the police properly ordered the driver and passengers out of the vehicle incident to this stop for a Vehicle and Traffic Law violation (see, People v Robinson, 74 N.Y.2d 773, cert denied 493 U.S. 966), the law enforcement officers failed to provide a justification for the frisk of defendant (see, People v. Griepsma, 132 A.D.2d 927, 929). The officers did not observe defendant engage in criminal behavior, nor did they observe any unexplained bulges in defendant's clothing (cf., People v. Robinson, 125 A.D.2d 259, 261, appeal dismissed 69 N.Y.2d 1014), or notice any weapons in plain view in the vehicle (cf., People v. Ragland, 156 A.D.2d 953). Defendant did not act in a furtive manner (cf., People v Benjamin, 51 N.Y.2d 267), and the officers did not have any information that defendant might be armed (cf., People v Larkins, 116 A.D.2d 194, lv denied 67 N.Y.2d 1054). Moreover, none of the officers indicated that he thought that defendant might be armed and a threat to his safety.
Assuming, arguendo, that the officers were entitled to conduct a protective frisk, they were not entitled to require defendant to empty his pockets. A protective frisk is an intrusion tailored to discover the presence of concealed weapons, usually consisting of a pat-down of a person's outer clothing (see, People v Robinson, 125 A.D.2d, supra, at 261). A protective frisk "should not be extended beyond its purpose of securing the safety of the officer and preventing an escape" (People v. Marsh, 20 N.Y.2d 98, 101; see also, People v. Torres, 74 N.Y.2d 224, 226). Here, even if we conclude that the officers were entitled to frisk defendant to ensure themselves that he was not carrying a weapon, they were not entitled to discover everything that he was carrying on his person. We further conclude that defendant did not consent to empty his pockets (cf., People v. Gonzalez, 39 N.Y.2d 122, 128), nor did he abandon the gun (see, People v. Santiago, 136 A.D.2d 942, 943). In light of our conclusion, it is unnecessary to reach defendant's remaining argument.