People v. Poritz

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 9, 1971, convicting him of attempted criminal possession of a dangerous drug in the fourth degree, upon a guilty plea, and imposing sentence. The appeal has brought up for review said court’s denial, on March 31, 1971 and again on April 2, 1971, after the suppression hearing had been reopened, of defendant’s motion to suppress certain evidence. Judgment reversed, on the law and the facts, motion to suppress granted and case remanded to the trial court for proceedings not inconsistent herewith. In our opinion, the search of defendant’s suitcases prior to his arrest was unreasonable and unauthorized. The circumstances of this case gave rise neither to probable cause to arrest nor to a reasonable suspicion sufficient to justify a “frisk” of defendant (cf. Brinegar v. United States, 338 U. S. 160, 175-176; CPL 140.50; former Code Crim. Pro., .§ 180-a). In the situation presented by this ease, the detective would have been justified only in making an inquiry of defendant as to his activities (People v. Rosemond, 26 N Y 2d 101). Unsatisfactory responses and/or activity on defendant’s part might then have provided justification for further inquiry, a “frisk” of defendant’s person, or an arrest. Rabin, P. J., Hopkins, Munder, Martuseello and Latham, JJ., concur.