Opinion
October 3, 1991
Appeal from the Supreme Court, New York County, Bernard Fried, J.
We conclude that the motion to suppress should have been granted. Only one witness, Police Officer Michael Quinn, testified at the hearing on the motion. The following facts are based on his testimony. On March 24, 1989, around 8:35 P.M., Officer Quinn was in uniform on foot patrol on 42nd Street in Manhattan between 7th and 8th Avenues. As he passed a store, the police officer observed the defendant inside examining gun holsters. He called for backup assistance. Two other officers arrived before defendant left the store. Defendant did not purchase a holster and left the store after several minutes. Officer Quinn noticed a bulge in the upper right breast pocket of defendant's overcoat. The bulge "was not characteristic of a billfold alone," did not make only a "flat impression" but "protruded outward." As he left, Officer Quinn asked the defendant "to turn around and place his hands on the wall." Defendant protested that he had done nothing wrong, said he had identification and reached into the pocket with the bulge. Defendant was again ordered to turn around and face the wall. "He insisted in [sic] going into that pocket. He was physically placed against the wall and Officer Neville reached into the pocket in question and removed a .38 caliber revolver." Subsequently, defendant was searched. A billfold with twenty credit cards in defendant's name was removed from the same pocket where the gun was found.
We find that the action of the police in placing the defendant against a wall and searching him without any inquiry and without even a frisk violated his right to be free from an illegal search and seizure under the Fourth and Fourteenth Amendments to the Constitution of the United States and under article I, § 12 of the New York State Constitution. Even assuming that the police had sufficient reason to approach and question the defendant, their actions exceeded the bounds of proper police conduct. (People v. Sanchez, 38 N.Y.2d 72; People v. Green, 35 N.Y.2d 193; People v. Johnson, 54 N.Y.2d 958; People v Samuels, 50 N.Y.2d 1035, cert denied 449 U.S. 984.)
Concur — Carro, J.P., Wallach, Kupferman and Smith, JJ.