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Drug conviction reversed on improper search

‘Pat down’ not OK without a warrant

By: Bennett Loudon//June 16, 2017

Drug conviction reversed on improper search

‘Pat down’ not OK without a warrant

By: Bennett Loudon//June 16, 2017

A state appeals court has thrown out a drug conviction because of an improper search.

Defendant Antoine Richards pleaded guilty on Sept. 8, 2015, to third-degree criminal possession of a controlled substance and was sentenced to two years in prison by Livingston County Court Judge Robert B. Wiggins.

Richards has been on parole since November.

The Appellate Division of state Supreme Court, Fourth Department, granted a defense motion to suppress evidence in the case, reversed the conviction, vacated the plea, and dismissed the indictment.

The case was sent back to Livingston County Court under CPL 470.45 and Richards is likely to be freed.

Richards was a passenger in a car stopped by a Livingston County sheriff’s deputy. The driver did not have a valid license and was arrested on a first-degree aggravated unlicensed operation of a motor vehicle charge.

The deputy ran a check on Richards and found that he also did not have a valid driver’s license and there was a warrant for his arrest from the Elmira Police Department.

Richards questioned whether the warrant was valid, but the deputy took Richards into custody on the warrant without verifying it. During a pat-down search of Richards, the deputy found cocaine.

For a passenger without a warrant, the deputy testified at a suppression hearing, he normally would let them call for a ride or give them a ride to a gas station, or to a home. But when he gives someone a ride he gives the person a pat down search.

After the court denied the defense motion to suppress the evidence, Richards pleaded guilty.

Richards was arrested by the deputy after the deputy learned about the warrant. Richards’ appellate attorney, Steven D. Sessler, argued that the search of Richards was not lawful because it was done in relation to an arrest on a warrant that was not verified.

When Wiggins denied the defense motion to suppress the evidence, he said he didn’t find “any problems with the protocol that was followed,” according to the decision released June 9.

Livingston County Assistant District Attorney Joshua J. Tonra said he argued that the deputy could not reasonably be expected to leave Richards at the scene.

The deputy “has got an unlicensed driver, so obviously he has an obligation to check the other individual to see if he can drive the vehicle. He is also unlicensed; suspended. It is a pat-down, safety pat-down,” Wiggins said, according to the decision.

“At no time did the court determine that defendant was subjected to a lawful search incident to arrest,” the Fourth Department wrote.

The Fourth Department found that Wiggins “erred in upholding the search on the ground that it was a lawful ‘safety pat-down,’” according to the decision.

“Although a police officer may reasonably pat down a person before he places him in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing him in the police car in the first place,” the appellate panel wrote.

“The procedure may properly be applied to one in lawful custody, but may not be used as justification for an impermissible search,” the Fourth Department wrote, citing People v Kinsella, a 1988 Fourth Department case.

In Richards’ case, the prosecution did not “establish the legitimacy of placing defendant in the patrol vehicle,” according to the decision.

The prosecution failed to show that there was a valid warrant in place for Richards. After Richards questioned the validity of the warrant, the deputy should have produced the valid warrant.

“Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing (Richards) in the patrol vehicle,” the Fourth Department wrote, citing People v. Jennings, a 1981 Court of Appeals case.

But the decision leaves unanswered the question of whether Richards could be charged if the drugs were found during a “safety pat down” if there was no issue of a warrant.

“That’s still left open,” Tonra said.

Sessler did not immediately return a phone call seeking comment.

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