613 N.Y.S.2d 70 | N.Y. App. Div. | 1994
—Judgment unanimously reversed on the law, plea vacated, motion to suppress granted and indictment dismissed. Memorandum: Defendant contends that evidence seized after a pat-down frisk and statements made following his arrest should have been suppressed because the police lacked sufficient justification for the initial encounter with, and subsequent frisk of, defendant. The police officer had received radio dispatches throughout the day about a man fitting defendant’s description who was selling drugs at a specified location. At about 9:40 p.m., the police officer stopped his marked vehicle at the curbside adjacent to defendant, who was standing on the sidewalk talking to another individual known to the officer from a prior drug transaction. The police officer asked them why they were standing there in the cold and whether they were shopping. The officer exited his vehicle and asked defendant to remove bis hands from his pockets. Defendant, after hesitating, complied. The officer asked defendant if he was carrying a weapon, and defendant did not respond. The officer then approached defendant and frisked him.
Even assuming that the suppression court properly found that the initial encounter was an appropriate exercise of the officer’s common-law right of inquiry (see, People v Landy, 59 NY2d 369, 376), we conclude that the suppression court erred in finding that the pat-down frisk of defendant was justified. The officer had not observed defendant or the individual with
