People v. Morales

126 A.D.3d 43, 2 N.Y.S.3d 472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2015
• Status: Published

Opinions

OPINION OF THE COURT

Richter, J.

In this appeal, we are asked to determine whether the police lawfully searched defendant’s jacket, which was lying on the trunk of a police car, while defendant was sitting handcuffed in the vehicle and numerous police officers were present at the scene. We conclude that, at the time of the search, the jacket was not within defendant’s grabbable area, and there were no exigent circumstances justifying a warrantless search of the jacket incident to arrest (see People v Jimenez, 22 NY3d 717 [2014]; People v Gokey, 60 NY2d 309 [1983]). The dissent’s contention that our decision will endanger the police and public is unsupported by the record, and cannot be reconciled with controlling precedent. We recognize the difficult job that police officers face when arresting suspects, but no one was in danger here once the suspect was subdued, and the officers had other legal means available to them to secure the jacket safely. Under these circumstances, the evidence recovered from the jacket should have been suppressed.

The relevant facts at the suppression hearing established the following. On February 29, 2008, at around 9:00 p.m., Officer William Svenstrup and his partner responded to a 911 call reporting that a suspicious man was inside Frank’s Restaurant, located at 88 Second Avenue in Manhattan. The manager greeted the officers outside the restaurant and informed them that defendant, who was in the bar area of the restaurant, appeared to be trying to steal from women’s purses. The officers entered the restaurant and asked defendant to step outside with them.

As they exited the restaurant with defendant, he turned around and placed both his hands inside his jacket pockets. The officers grabbed defendant’s arms and a struggle ensued as defendant ignored the officers’ request to remove his hands from his pockets. By this time, five or six additional officers had arrived on the scene. The officers subdued defendant, and he was handcuffed and placed in the back of a police car. Defendant’s jacket, which had fallen off during the struggle, was resting on the trunk of the police car. While defendant was sitting in the car with handcuffs on, the officers searched the jacket pockets and found seven envelopes containing drugs, and a box cutter. The police subsequently returned the jacket to defendant.¹

“[A] 11 warrantless searches presumptively are unreasonable per se,” and, “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming” this presumption of unreasonableness (People v Hodge, 44 NY2d 553, 557 [1978]). As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]; see Gokey, 60 NY2d at 312 [item searched must be within the immediate control or grabbable area of the suspect]). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment {id. at 722).

Although Jimenez had not been decided at the time the motion court denied defendant’s suppression motion, the principles set forth in that case are instructive.² In Jimenez, police officers responding to a reported burglary in an apartment building encountered the defendant in the building’s lobby. After the building’s superintendent made gestures indicating to the officers that they should stop the defendant, the officers asked the defendant why she was in the building. They arrested her for trespassing after she provided contradictory answers. During the arrest, an officer removed the defendant’s purse from her shoulder. The officer perceived the purse to be heavy and opened it, revealing a gun. The Court held that the gun should have been suppressed because the People failed to establish exigent circumstances justifying a warrantless search of the purse incident to arrest. The Court noted that neither of the police officers who testified at the suppression hearing stated that he feared for his safety or for the integrity of any destructible evidence, and, while affirmative testimony is not necessary, such a belief would not have been objectively reasonable under the circumstances. Jimenez reinforces the principle that containers cannot be searched incident to arrest unless the People affirmatively demonstrate exigency.

Here, the jacket was unquestionably outside defendant’s grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle’s trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it (see People v Thompson, 118 AD3d 922, 924 [2d Dept 2014] [search of backpack not justified where the defendant was secured and the backpack was not within his immediate control]; People v Diaz, 107 AD3d 401 [1st Dept 2013] [search of backpack unlawful because the defendant was handcuffed at the time of the search and it was no longer in his control], lv dismissed 22 NY3d 996 [2013]; People v Julio, 245 AD2d 158 [1st Dept 1997] [search of bag unlawful where it was in the exclusive control of the police and the defendant was unable to reach it because he was handcuffed and surrounded by police officers], lv denied 91 NY2d 942 [1998]).³

Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled (see Gokey, 60 NY2d at 313-314). Officer Svenstrup, one of the responding officers, did not testify that the jacket was searched out of fear for the officers’ safety or for the integrity of any destructible evidence (see Jimenez, 22 NY3d at 722-723). In any event, such a conclusion would not have been objectively reasonable under the circumstances because at the time of the search, defendant could not have reached the jacket (see Arizona v Gant, 556 US at 332 [warrantless search of jacket in the defendant’s car unreasonable where the defendant, at the time of the search, was handcuffed and locked in the back of a police car]; People v Boler, 106 AD3d 1119, 1123 [3d Dept 2013] [warrantless search of the defendant’s purse on the hood of her car unreasonable where, at the time of the search, she was handcuffed in the back of a police car]).

The cases relied on by the People are distinguishable. In People v Mack (82 AD3d 663 [1st Dept 2011], lv denied 17 NY3d 798 [2011]), the search was upheld because a police officer saw the defendant pick up a gun and put it in his jacket pocket. Although there were conflicting versions of the facts in Mack, there is no indication that the defendant was handcuffed at the time of the search. In People v Capers (298 AD2d 184, 184 [1st Dept 2002], lv denied 99 NY2d 580 [2003]), the defendant “chose to wear [the jacket] to the police station.” In People v McPherson (300 AD2d 194, 194 [1st Dept 2002], lv denied 99 NY2d 630 [2003]), the jacket had “not yet been reduced to the exclusive control of the police.”

The dissent concludes that the search here was justified because the jacket may have contained a loaded gun that would endanger the police and the public. Officer Svenstrup, however, did not testify that, once defendant was subdued, he searched the jacket due to any concern that it might contain a gun or other weapon. Nor did he state that any other exigent circumstances existed. In fact, there was no testimony whatsoever as to why the search was conducted. In any event, even if there had been a legitimate concern, at some earlier time during the encounter between defendant and the police, that defendant might retrieve a weapon from the jacket, that possibility no longer existed at the time the police conducted the search.

The fact that defendant was handcuffed in the police car and multiple officers were at the scene is minimized by the dissenting Justice who would uphold the search even though defendant had been subdued and no longer had access to the jacket. This view cannot be reconciled with the Court of Appeals’ requirement that there be “ ‘a reasonable belief that the suspect may gain possession of a weapon’ ” (Jimenez, 22 NY3d at 722, quoting Gokey, 60 NY2d at 311 [emphasis added]). Taken to its logical conclusion, the dissent is arguing that an exigency that may have existed earlier in the encounter allowed the police to search the jacket, even where the jacket was in the exclusive control of the police. That view, if accepted, would run afoul of Court of Appeals jurisprudence and would eviscerate the grabbable area doctrine.

As the dissent concedes, the existence of exigent circumstances must be measured at the time the search is conducted. This point was recently underscored in People v Jenkins (24 NY3d 62 [2014]). In addressing the exigent circumstances exception to the warrant requirement, the Court in Jenkins found a search unreasonable because at the time of the search, any urgency had abated and there was no longer any danger to the public or the police (id. at 65). Likewise here, when the police searched the jacket, no danger to the police or public existed.

We fail to grasp the logic of the dissent’s position that any such danger did not disappear simply because defendant had been subdued. In fact, it did disappear — defendant was locked in the police car, and the jacket was on the trunk. Once defendant was safely separated from the jacket, the record does not show that any harm could have resulted from the possible presence of a weapon. In any event, Officer Svenstrup or any of the other half dozen police officers at the scene could have used other legal means to secure the jacket since it was in their exclusive control. Our decision does not, as the dissent charges, break any new ground, but simply adheres to well-settled principles governing the parameters of a search incident to arrest. The dissent would extend this doctrine and hold that whenever there is the possible presence of a weapon, the police can search a container to protect themselves, even if it is nowhere near the suspect’s grabbable reach. Such a conclusion finds no support in this state’s jurisprudence on searches incident to arrest.

The dissent raises a host of matters neither developed in the record below nor advanced by the People. Thus, despite the fact that this case does not involve any firearm, the dissent speculates about danger to the public arising from the possible accidental discharge of a loaded gun. In doing so, the dissent appears to be justifying the search based on the emergency doctrine, an entirely separate exception to the warrant requirement. That exception, however, was never argued by the People, either below or on appeal, and there is no record evidence supporting any of the post-arrest scenarios posited by the dissent. Nor was the emergency doctrine the basis of the motion court’s decision, which limited itself to the search incident to arrest exception to the warrant requirement.⁴ It bears emphasis that the only issue on appeal is whether the police conduct was lawful under that exception. On that point, the dissent agrees with the majority that when the police searched the jacket, it was not within defendant’s grabbable reach. That undeniable fact ends the inquiry and requires, under clear Court of Appeals precedent, the suppression of the items found in the jacket.

Accordingly, the judgment of the Supreme Court, New York County (Robert M. Stolz, J., at hearing; Bruce Allen, J., at jury trial and sentencing), rendered September 15, 2010, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 2V2 years, should be reversed, on the law and the facts, the motion to suppress granted, and the indictment dismissed.

1 . There is no record support for the prosecutor’s contention at the suppression hearing that the police gave the jacket back to defendant because it was cold outside. No testimony at the hearing established that defendant asked for his jacket to be returned. Nor was there any evidence that the officers asked defendant if he wanted the jacket back. Indeed, there was no testimony as to why, or even when, the jacket was returned to defendant. Thus, the dehors-the-record weather data gathered by the dissent from an Internet search is simply irrelevant here.

2 . Although defendant’s main brief on appeal does not rely on Jimenez, which was decided after the brief was filed, he properly supports his arguments with cases preceding Jimenez (see Gokey, 60 NY2d at 309; Arizona v Gant, 556 US 332 [2009]).

3 . The motion court’s finding that the jacket was not in the exclusive control of the police cannot be reconciled with the testimony that defendant was handcuffed in the car and numerous police officers were present.

4 . Even if the People had raised the emergency doctrine on appeal, it would be both unpreserved and beyond this Court’s power of review (see People v Concepcion, 17 NY3d 192, 194-195 [2011]; People v Gerard, 94 AD3d 592 [1st Dept 2012]).