People v Luna

[*1] People v Luna 2012 NY Slip Op 50554(U) Decided on March 29, 2012 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2012
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Antonio Luna, Defendant.



5113/08



Special Narcotics Prosecutor for the City of New York Bridget Brennan (Steven Miller, of counsel) for the People

Robert Levy for the Defendant.

Daniel Conviser, J.

The Defendant is charged with one count of Criminal Sale of a Controlled Substance in the Third Degree, one count of Criminal Possession of a Controlled Substance in the Fourth Degree and one count of Criminal Possession of a Controlled Substance in the Third Degree. A hearing was held before this Court to determine whether probable cause existed to arrest the Defendant and whether cocaine alleged to have been recovered from his person is admissible at trial. The People called two witnesses: Lieutenant Luis Pineiro and Detective George Macias. The Court finds the testimony of both witnesses to be credible. The Defendant did not call any witnesses. For the reasons stated infra, the Defendant's motion is denied.

STATEMENT OF FACTS

Lieutenant Luis Pineiro of the NYPD testified that during the summer of 2008 he was employed as a sergeant and supervised a narcotics investigation of cocaine-dealing in the vicinity of 159th Street and St. Nicolas Ave. in New York County. As part of the investigation two undercover (U.C.) police officers, U.C. 12157 and U.C. 5986, were used to make purchases of cocaine.

The primary target of the investigation was an individual known to the police as Kelly. Prior to the date of the Defendant's arrest on October 22, 2008 approximately five purchases of cocaine had been made by the undercover officers as part of the investigation. The first purchase of cocaine was made by U.C. 12157 directly from Kelly. The balance of the purchases thereafter were made by U.C. 5986 and involved other individuals assisting Kelly. These other individuals acted in various capacities such as lookouts, deliverers of the drugs and handlers of currency. Lt. Pineiro said that Kelly was either present or aware based on phone communications of each of the narcotics transactions. [*2]

Lt. Pineiro stated that a decision was made to "take down" the operation on October 16, 2008. In connection with the take down, U.C. 5986 arranged to purchase 70 grams of cocaine from Kelly. On October 16, 2008 U.C. 5986 spoke with Kelly on the phone regarding the drug transaction and then met with a second person regarding the sale. Several individuals were arrested in connection with the operation. Kelly, however, escaped apprehension.

Although the Defendant was not known at the time of the take down to be involved with the drug operation, Lt. Pineiro said that prior to U.C. 12157's initial purchase of cocaine the Defendant was with Kelly when they were stopped on the street by the police in a ruse which was intended to obtain the identity of Kelly and the person he was with at the time, who turned out to be the Defendant. During this encounter, when each was asked for his name, Kelly identified himself as Kelly Gomez and the Defendant identified himself as Antonio Luna.

On October 21, 2008 Kelly was contacted by U.C. 5986 and an agreement was made to purchase 100 grams of cocaine the following day. The transaction was to take place at 155th Street and Riverside Drive. On October 22, 2008 Kelly contacted U.C. 5986 and informed him that the location where the transaction was to have occurred was "hot" in that there were police present and that the transaction would therefore take place at 160th Street and Riverside Drive at 6:00 P.M.

Lt. Pineiro was informed of the change and accordingly arranged for a ghosting police officer, Detective Macias, to remain in a nearby building close to U.C. 5986 at the newly arranged sale location. Lt. Pineiro stated that he was approximately five car lengths away from the vehicle in which U.C. 5986 was parked and that he was able to maintain a constant view of the vehicle. The vehicle in which U.C. 5986 was awaiting the transaction was parked at the intersection of 160th Street and Riverside Drive. Communication between U.C. 5986 and the other members of the field team occurred by use of a KEL transmitter and cell phone. Lt. Pineiro communicated with Detective Macias via point-to-point radio. They maintained constant contact to verify that Detective Macias could see the vehicle in which U.C. 5986 was seated.

Lt. Pineiro testified that a white taxi cab drove past the vehicle in which U.C. 5986 was parked and then returned to the vicinity. Lt. Pineiro then received a communication from U.C. 5986 who said "He's in the area." Shortly thereafter the vehicle in which U.C 5986 was parked was approached by the Defendant. As the Defendant approached the vehicle U.C. 5986 informed the others that he did not know who the Defendant was. Lt. Pineiro, too, did not at that time recognize the Defendant. The Defendant knocked on the window of U.C. 5986's vehicle. U.C. 5986 rolled down his window and asked the Defendant "Where's Kelly?" The Defendant pointed in the direction where the white cab that had previously driven past U.C. 5986's vehicle was double parked. The field team was notified by U.C. 5986 that Kelly was in the white taxi cab and told to "move in", meaning apprehend the Defendant. The white taxi cab then took off but was blocked by police vehicles. Lt. Pineiro then saw Detective Macias stop the Defendant. Lt. Pineiro then proceeded to the white taxi cab in which Kelly was seated.

When asked why the witness had directed Detective Macias to stop the Defendant, Mr. Luna, Lt. Pineiro replied: Well, the undercover had arranged to buy a hundred grams of cocaine, and this guy came over to the undercover vehicle trying to get into the vehicle, and I am [*3]thinking he's part of the deal. He pointed towards Kelly. He was with Kelly.[FN1]

Detective George Macias, a narcotics investigator employed by the NYPD testified that he was on duty on October 22, 2008 as part of the above-referenced investigation. His main function as the ghosting police officer was to watch U.C. 5986. Detective Macias stated that from the vestibule of 884 Riverside Ave. he observed the Defendant approach the vehicle in which U.C. 5986 was seated.

Detective Macias testified that he observed the Defendant approach the vehicle in which U.C. 5986 was seated and then knock on the window to engage U.C. 5986 in conversation. Detective Macias saw "hand gestures" being made between the Defendant and U.C. 5986. Detective Macias was instructed to move in to apprehend the Defendant by Lt. Piniero. He pulled out his shield, clipped it to his jacket and identified himself as a police officer to the Defendant while approaching the vehicle. The Defendant was initially a "little resistant" and "tensed up" when Detective Macias identified himself as a police officer. Detective Macias grabbed the Defendant's hands and the Defendant was at this point "still tense". The Detective told the Defendant to turn around and Mr. Luna at first failed to comply. At this point, Detective Macias said, he had to be a "little stern" with Mr. Luna and raised his voice. He was then able to handcuff the Defendant.[FN2]

Upon facing the Defendant and first seeing his hands, Detective Macias saw that Mr. Luna had a cigarette box in his hands. After he rear-cuffed Mr. Luna, Detective Macias took the cigarette box from Mr. Luna's hands. He then "secured" Mr. Luna, did a quick pat down of his waistband area and looked in the cigarette box. When Mr. Luna was initially handcuffed, he was on the street side of the undercover police vehicle. Detective Macias then walked the Defendant to the sidewalk and looked in the cigarette box. At the time he looked into the cigarette box, Detective Macias had his arm through the handcuffed arms of Mr. Luna to prevent him from fleeing. At this point, Detective Macias and Mr. Luna were alone on the sidewalk.

Detective Macias said he looked in the cigarette box to see if there were narcotics inside. He was initially concerned that the Defendant might be armed but was not concerned that there might be a weapon in the cigarette box. He also did not believe that the planned sale of 100 grams of cocaine would fit inside the cigarette box. Cocaine in a clear plastic bag was recovered from inside the cigarette box. Detective Macias agreed, on cross-examination, that after he had handcuffed the Defendant, patted him down and had possession of the cigarette box, "[a]t that point you [Detective Macias] had possession of the cigarette box so whatever was in it he didn't have any access to or couldn't destroy or anything"[FN3]

CONCLUSIONS OF LAW

Probable Cause to Arrest

Probable cause is defined as the body of information available to the police which would lead a similar person with the same expertise as the officer to conclude, based on a totality of the [*4]circumstances, that a crime is being or has been committed by a defendant. People v. Graham, 211 AD2d 55 (1st Dept 1995), app denied, 86 NY2d 795. The analysis of whether such probable cause exists must consider the "realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents". Id., 211 AD2d at 58-59 (quotation omitted).

The Court finds that the arrest of the Defendant was supported by probable cause to believe he was a participant in the arranged sale of narcotics between Kelly and U.C. 5986. UC 5986 had gone to the precise location where he met the Defendant at a precisely arranged time for one purpose: to purchase 100 grams of cocaine. The Defendant approached UC 5986's car. The police did not in any way approach or begin any kind of interaction with the Defendant. The Defendant tapped on the undercover officer's window. Most significantly, when asked by UC 5986 "Where's Kelly?", the man UC 5986 had gone to that location to meet, Mr. Luna did not express any confusion or uncertainty about what the officer was asking him. To the contrary, he replied by pointing to the white car which had just arrived at the scene, as scheduled. Kelly, the drug dealer, was then found in that car.

Approximately four of the five previous narcotics sales which the police had arranged with Kelly had involved transactions with accomplices who assisted Kelly rather than direct interactions with Kelly himself. Under all of these circumstances the trained and experienced narcotics officers who effectuated the Defendant's arrest were justified in deducing that Mr. Luna was an accomplice of Kelly. They were justified in assuming that Mr. Luna was precisely what he appeared to be: a person who had arrived at the scene with Kelly to assist Kelly in facilitating the cocaine sale both Kelly and UC 5986 had arrived at the location to consummate.[FN4]

Governing Law Concerning Search of Cigarette Box

A defendant's person and his immediate possessions may be searched incident to his lawful arrest without a warrant under certain circumstances. The Court of Appeals articulated the core rationale for this exception to the warrant requirement in People v. DeSantis, 46 NY2d 82 (1978), cert denied, De Santis v. New York, 443 US 912 (1979). There the Court noted that such searches had been justified to protect officer safety, prevent defendant flight or prevent the destruction of evidence but that in practical terms, the rationale for such searches was more basic. Warrantless searches incident to a lawful arrest were justified by the fact that "the arrest itself constitutes such a major intrusion into the privacy of the individual that the encroachment caused by a contemporaneous search of the arrestee and his possessions at hand is in reality de minimus". 46 NY2d at 87 (citations omitted).

New York case law has also held, however, that despite this core rationale, a warrantless search incident to a lawful arrest must be justified under our State Constitution by a "reasonable belief" that one of two exigent circumstances exist: the safety of an arresting officer or the public, or the protection of evidence from destruction or concealment. People v. Gokey, 60 NY2d 309 (1983). In this respect, the Gokey decision diverged from federal constitutional law, which at the time allowed the warrantless search of a closed contained within a defendant's "grabbable [*5]area" as justified incident to his lawful arrest even in the absence of exigent circumstances. People v. Smith, 59 NY2d 454, 458, citing New York v. Belton, 453 US 454 (1981); United States v. Robinson, 414 US 218 (1973).

The First Department has construed the Gokey requirement strictly in several cases. For example, in People v. Rosado, 214 AD2d 375 (1st Dept 1995), app denied, 86 NY2d 740, the Defendant was lawfully arrested in a narcotics sale case and a small change pouch was discovered in his pants pocket. The pouch was opened and 26 glassine envelopes of heroin were found. The Court suppressed the evidence, holding that the police should have obtained a warrant to open the "little change pouch" they found in the Defendant's pocket. The Court pointed out that the Gokey exigency requirement applied to any "closed containers" within the Defendant's possession and control. It would have apparently been permissible for the police to frisk the Defendant and seize glassines of heroin from inside his pockets if those objects had not been enclosed in a little change pouch. Once the heroin was not only in the Defendant's pocket but within a small pouch, however, a warrant was required.

Similarly, in People v. Hendricks, 43 AD3d 361 (1st Dept 2007) the Defendant was properly placed under arrest for trespassing in a public housing building and his pants pockets were searched incident to his lawful arrest. The police recovered a box cutter and a large sum of currency from his right pants pocket. No motion to suppress that evidence was apparently made. From his left pants pocket, however, the police recovered a "rolled or folded up paper bag". 43 AD3d at 363. Upon opening that bag, 32 small baggies of crack cocaine were found. The Court ruled that this crack had to be suppressed since neither of the two Gokey rationales existed. In this case, again, the requirement for a warrant was triggered by the fact that the baggies of cocaine in the Defendant's pocket were inside a paper bag, rather than merely inside the Defendant's pocket. Had the cocaine baggies simply been in the Defendant's pocket, no warrant would apparently have been necessary. See also People v. Evans, 84 AD3d 573 (1st Dept 2011) (gun and other contraband found in search of Defendant's backpack effectuated within two to three feet of handcuffed Defendant immediately after his lawful arrest for smoking marijuana suppressed since there were no exigent circumstances justifying the warrantless search.)

The Gokey rules focus on a real concern: the idea that an arrestee might be able to obtain a weapon or destroy or conceal evidence. But in Smith, supra, a case decided a few months before Gokey, the Court of Appeals also held that these exigencies need not actually exist at the moment a search is conducted. The Court held that the test under New York law for whether exigent circumstances exist at the time of a search is whether such circumstances existed at the time of an arrest and whether the arrest and search were close in space and time.

In Smith, Defendant was arrested for subway fare beating and wearing a bullet proof vest, was arrested and taken to a room with two police officers. While the Defendant was handcuffed and searched by one officer, a second officer took his briefcase, opened it and found a gun, handcuffs and a handcuff key. The Court found this conduct acceptable since an exigency had existed at the moment the Defendant had been arrested: Whether the circumstances are such as to justify a warrantless search incident to arrest is to be determined . . . . at the time of the arrest, but the justification does not necessarily dissipate with the making of the arrest. For compelling reasons, such as the safety of the officers or the public or to protect the person arrested [*6]from embarrassment, a search "not significantly divorced in time or place from the arrest" may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police. 59 NY2d at 458 (citations and quotation omitted).[FN5]

The Court held that whether the Defendant could have accessed the briefcase at the time it was being searched was "irrelevant" in the analysis. The Defendant could have accessed the briefcase at the time he was arrested and "neither the distance from nor the time elapsed since the arrest was sufficient to dissipate the reasonableness" of the police conduct. 59 NY2d at 459.

In People v. Wylie, 244 AD2d 247 (1st Dept 1997), app denied, 91 NY2d 946 (1998) the First Department applied the Smith rule in another case where the Defendant apparently had little chance to actually destroy evidence or injure the police at the moment he was searched. The Defendant in Wylie was arrested for a robbery and after he was handcuffed by two officers, a plastic bag was taken out of his pocket, a paper bag inside the plastic bag was opened and $3000 of bundled currency was recovered. Since the search took place "immediately after" and a "short distance" from where the Defendant was arrested, suppression was denied. The Court also, however, grounded its holding on the argument that even at the moment he was actually searched, the Defendant in Wylie might have been able to obtain a weapon or destroy evidence. The Court explained that: [A] determined arrestee may use means other than his hands — such as kicking or shoving the arresting officer — to disrupt the arrest process in order to gain a weapon or destroy evidence. Such actions are a realistic possibility when the search occurs within close proximity to the arrest, as was the case here. 244 AD2d at 251.

Post-Wylie decisions in the First Department have come to similar conclusions. Some cases have relied upon the rationale that a bag had not been reduced to the exclusive control of the police, even though a Defendant had already been handcuffed. Other decisions have apparently relied on the rationale that so long as a search occurs shortly after an arrest, the existence of an actual exigency at the time of a search is irrelevant. See People v. Watkins, 256 AD2d 159 (1st Dept 1998), lv denied, 93 NY2d 859 (1999) (search of bag simultaneous to arrest proper since bag had not yet been reduced to the exclusive control of the police); People v. Baker, 254 AD2d 4 (1st Dept 1998), lv denied, 92 NY2d 1047 (1999) (search of bag proper because it occurred "immediately after" the Defendant was arrested and handcuffed); People v. Estrella, 288 AD2d 133 (1st Dept 2001) (search of duffle bag at handcuffed defendant's feet proper since the bag was not in exclusive police possession).

The Court is aware of three cases in which the legality of the search of a cigarette box or case incident to a lawful arrest, under circumstances analogous to those here, were considered. [*7]People v. Thompson, 269 AD2d 317 (1st Dept 2000), lv denied, 95 NY2d 805, upheld the search of a cigarette box incident to arrest citing both the fact that the box had not been in the exclusive possession of the police at the time of the search and that the search had occurred immediately after arrest. The Court also held (without further explanation) that the police had a reasonable fear for their safety with respect to the cigarette box. In People v. Schobert, 93 AD2d 949 (3d Dept 1983), the Defendant was arrested for unlawful possession of marijuana and a gold cigarette case was removed from his jacket. Later, at the police station, the cigarette case was opened and LSD was recovered. The Court held that the search was valid as incident to a lawful arrest and that "exigent circumstances" justified the arrest and the search. (The Court did not explain why this exigency allowed the search of the cigarette case at the police station.)

However, in People v. Allen, 176 Misc 2d 858 (New York County 1998) the Court found the warrantless search of a cigarette box after the defendant's arrest to be impermissible. There, the defendant had been initially arrested for possession of a crack pipe. Immediately after his arrest the police recovered a cigarette box which the defendant was attempting to conceal in the side of one of his legs. The police then found a quantity of heroin inside the cigarette box. In granting suppression, the Allen Court announced a rationale not contained in controlling appellate authority. According to the Allen Court, once a Defendant was arrested and a closed container was seized, a warrant would be required, "absent a reasonable belief that the delay necessary to obtain a warrant" would pose a danger that evidence would be destroyed or concealed or that the public or police might be endangered. 176 Misc 2d at 862.

Court's Conclusion Regarding Search of Cigarette Box

The Court finds that the police were entitled to search the cigarette box in this case. It is clear that at the time the Defendant was arrested, the police had a reasonable belief that the cigarette box he held in his hand might contain narcotics. The Defendant had arrived at the scene where he was arrested apparently as an accomplice to a planned narcotics transaction and was holding the cigarette box in his hands.

It is also clear that at the time of his arrest, the Defendant could easily have taken steps to destroy or conceal the contents of the cigarette box. Several facts, in addition those which provided probable cause for the Defendant's arrest, supported that inference. The Defendant initially demonstrated resistence to being arrested. See People v. Doe, 273 AD2d 145 (1st Dept 2000), lv denied, 96 NY2d 799 (2001) (fact that Defendant was subdued by police after a struggle supported warrantless search of Defendant's pack incident to arrest). He continued to hold the cigarette box in his hand, even as he was being handcuffed. At the moment of his arrest, Detective Macias and the Defendant were alone on a public street (although, perhaps unbeknownst to the Defendant, UC 5986 was in his undercover vehicle very close by). Detective Macias testified that immediately after rear handcuffing Mr. Luna, Detective Macias placed his arm through Mr. Luna's handcuffed arms to prevent him from escaping. Detective Macias was thus in a position where he could easily have been physically assaulted by the Defendant before, during and immediately after Mr. Luna's arrest.

Detective Macias also looked into the cigarette box in close spatial and temporal proximity to Mr. Luna's arrest. Detective Macias testified that he took what was apparently only a few steps with the Defendant before looking into the cigarette box, the distance from the street next to the undercover vehicle to the sidewalk. The record also makes clear that only a matter of [*8]moments passed between Mr. Luna's arrest and the search of the cigarette box. The search was "not significantly divorced in time or place from the arrest". Smith, supra. For all of these reasons, in the Court's view, the search of the Defendant's cigarette box and the recovery of the narcotics from that box were lawful.

Court's Conclusions Regarding the Law Applicable to the Search

In concluding, the Court would offer the following observations about the current state of New York law governing searches of a person incident to a lawful arrest with the hope that such thoughts might make some contribution to the development of the law in this important area. As discussed infra, under our federal constitution, the police may search a defendant incident to his lawful arrest without justifying that search with a particular exigency. In the Court's view, that should also be the rule under our State Constitution. The fact that New York law does not provide that authority, in the Court's view, has created a number of significant anomalies in our search and seizure jurisprudence and practical problems in applying the law.

The first anomaly is the notion that a person's reasonable expectation of privacy for items inside his clothing varies depending on whether an item is or is not surrounded by another enclosure. People obviously have a reasonable expectation of privacy with respect to the items in their pockets. Those reasonable expectations do not vary, however, based upon whether an item is or is not wrapped in a piece of paper.

People don't carry small objects in their pockets in pouches or wrapped in paper to provide an additional layer of privacy for such items while they are inside clothing. People naturally assume that items in their pockets are private. They enclose such items for a variety of other reasons. A person might wrap small objects in paper to shield them from view when they are removed from a pocket, for example. A pouch might be used to keep items, like coins, together to make them easier to access. Cigarettes are normally kept in a cigarette box because that is how they are sold and because keeping them in a box protects them and makes them easy to use. Case law instructs that the opening of a paper bag or a small pouch in an arrestee's pocket requires exigent circumstances. The seizure of a wallet and its contents, however, apparently does not. See People v. Jones, 135 AD2d 1036, 1037 (3d Dept 1987). Yet a wallet, of course, is where most people keep their most private information. The Court of Appeals has repeatedly held that our search and seizure rules protect the reasonable privacy expectations of people, not particular places or objects. People v. Scott, 79 NY2d 474, 488 (1992). Current law assigns distinctions of constitutional significance in this regard to facts which have little relevance to the reasonable expectations of privacy which people rely upon in their daily lives.

The core justification for allowing a warrantless search incident to a lawful arrest was articulated by the Court of Appeals 34 years ago in DeSantis. An arrest is such a massive invasion of a person's privacy that the search of an arrestee's possessions incident to an arrest is a de minimus intrusion. The Court of Appeals reiterated that basic point in 2008 in crafting the current rules governing body cavity searches in People v. Hall, 10 NY3d 303, 319 (2008). There, the Court noted that the existing "constitutional rationale" for allowing a search incident to arrest were the exigencies of officer safety and evidence destruction. But the underlying reason for the rule, the Court reiterated, was not the presence of such exigencies: We have explained that such searches [those incident to a lawful arrest] are permitted because they represent de minimus intrusions when compared with the [*9]loss of liberty occasioned by the arrest that preceded them. (10 NY3d at 319 (citations omitted). Exigencies threatening officer safety or the imminent destruction of evidence are valid justifications for dispensing with the warrant requirement. But once an arrest has occurred, these important factors lose much of their force. (10 NY3d at 320 (citations omitted).

See also, People v. Perel, 34 NY2d 462, 467 (1974) (cited in Hall, supra, 10 NY3d At 319) (inventory searches are reasonable because "given the nature of the gross intrusion by detention of the person it is reasonable to conduct a less intrusive search of his person and the possessions he carried with him".) As the Second Department noted in ruling that the search of a bag located within ten feet of a Defendant when he was arrested was appropriate, "the seizure of the defendant's property . . . did not invade his expectation of privacy any more than the arrest itself." People v. Thomas, 291 AD2d 462, 464 (2d Dept 2002).

To deal with the obviously inappropriate results which would follow from a rule requiring a warrant to search any enclosed item on an arrestee's person, our Courts have also fashioned an exception to that requirement which, in the Court's view, has departed from its underlying rationale in two respects. The first has arisen from rulings which stretch Gokey's "reasonable belief" standard regarding whether exigent circumstances exist to the breaking point. Our law, for example, now presumes that it is reasonable to believe that a handcuffed arrestee who is in the custody of two police officers on a public street can nevertheless open a closed container he does not have physical possession of and thereby obtain a weapon or destroy evidence.

The second is the notion that a search of a closed container found on an arrestee need not be justified based on any exigency existing at the time of a search. It need only have existed before the search took place, when the Defendant was arrested, at a moment which may have no relationship with the need to conduct a search without obtaining a warrant later. The test, in such circumstances, is whether a sufficiently small amount of space and time has elapsed between conduct which would have been reasonable had it occurred and a police action which did in fact occur later without any justification. Smith, supra. Why such continuity should dispense with the requirement for a warrant or what relationship such spatial or temporal parameters might have to the needs of the police or the reasonable privacy expectations of arrestees has never, in the Court's view, been adequately explained.

These rules are necessary, the Court submits, because the underlying premise that possessions on the person of an arrestee can otherwise not be searched without a warrant is wrong. Our courts implicitly recognize that. Indeed, in Hall, our Court of Appeals recognized that explicitly. In the instant matter, for example, without the exigency rules this Court applied, the police would have been required to seek a warrant to flip open the top portion of the cardboard cigarette box they obtained from the hands of a Defendant arrested as an accomplice in a planned sale of 100 grams of cocaine. The police could have kept the cigarette box and opened it later as part of an inventory search without a warrant. They were allowed to place the Defendant under arrest and lock him in a prison cell on their own without any initial review. The police were entitled to remove Mr. Luna from the streets, prevent him from working, seeing his loved ones and sleeping in his own bed on their own. But, absent a warrant or exigent circumstances, they were not permitted to flip open the top of his Marlboro package. If they had, [*10]this Court would have then been effectively required to dismiss all the current charges which are pending against him.

There are certainly valid policy arguments to be made for why some offenses should not be subject to custodial arrest and all of the privacy intrusions that entails. In Evans, supra, for example, one fact the Court cited as justifying suppression was that the Defendant was "arrested simply for smoking marijuana in public". 84 AD3d 573. If such arrests are inappropriate, however, the solution is for arrest policies or the Penal Law applicable to such offenses to be changed. The issue discussed herein also obviously does not concern the ongoing controversy over the NYPD's "stop and frisk" policies or the standards governing those intrusions. A search incident to arrest is only permitted where a person is actually arrested and the police have probable cause to effect that arrest.

The exigency rules which have been fashioned to allow the police to search defendants incident to their lawful arrest, in the Court's view, have had significant negative consequences. First, as the competing authorities cited herein make plain, the rules are difficult in practice to apply, particularly for the police. "Fourth Amendment doctrine . . . is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable . . . A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be "literally impossible of application by the officer in the field." New York v. Belton, 453 US 454, 458 (1981) (quotation omitted).Legal rules which are divorced from their underlying rationales also promote disrespect for the law. They invite arbitrary rulings, since the policy reason underlying a doctrine cannot be relied upon by the police or the courts in reaching a decision on a close question.

The current rules also create counterproductive incentives. Consider what the police must do when arresting a suspect and obtaining a closed container from his person. On the one hand, the safest course in many cases may be to first secure a suspect and only after that is completely accomplished, investigate a closed container to see what might be there. If that is done, however, the police may need to obtain a warrant to look into it. On the other hand, if the police arrest a suspect and in the fast moving and potentially dangerous process of securing him, look into a paper bag or cigarette box he is carrying, no warrant will be necessary.

The intrusion into a Defendant's privacy in both scenarios is identical. The fist scenario is calculated to maximize safety. The second may put the police and the public at risk. Yet the police under current law have every incentive to avoid the first scenario. The law points them in the direction of the more dangerous and unpredictable course of action. See, Arizona v. Gant, 556 US 332, 362 (2009) (Alito, J., dissenting) (discussing the identical problem inherent in the majority's rule that a vehicle search incident to a lawful arrest can only be undertaken [with one general exception] where an exigency exists at the time of an arrest, rather than the time of a search: "the rule would create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer'") (quotation omitted).

Surveying hundreds of years of English and American law on the subject, the United States Supreme Court held in 1973 in Robinson, supra, that the police are entitled to search the [*11]person of an arrestee without justifying each search with a particular exigency. Robinson, as here, concerned the search of an arrestee's cigarette package, in which narcotics were found: The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. Robinson, supra, 414 US at 237.

Gant, supra, decided in 2009,held that a search of the interior of an automobile incident to a lawful arrest must be justified by an exigency which exists at the instant of a search (rather than the moment of an arrest) unless it is reasonable to believe that evidence relevant to the crime of arrest might be found in a vehicle. Gant thus announced a rule which is more restrictive on police conduct than the requirements previously imposed by our State Constitution in one important respect (the time at which an exigency must be measured) and less restrictive with respect to searches where it is reasonable to believe evidence of a crime of arrest might be found. See People v. Darrell, 26 Misc 3d 697 (New York County, 2009) (decision of this court) (analyzing the interplay of the new rules announced in Gant and the requirements of our State Constitution).

Gant thus dramatically changed the legal rules applicable to vehicle searches incident to lawful arrests. The federal courts have continued to apply the traditional Robinson rule, however, to the search of persons who are arrested. See e.g., U.S. v. Maddox, 614 F3d 1046 (9th Cir 2010); U.S. v. Brewer, 624 F3d 900 (8th Cir 2010) (contrasting the applicability of the rules in Robinson and Gant); U.S. v. Moore, 390 FedAppx 503 (6th Cir 2010); U.S. v. Sanchez-Manzanarez, 2012 WL 315870 (SDNY, Patterson, J.).

New York departed from the Robinson rule decades ago, of course. Today, however, the reasoning which powered that departure has resulted in a confusing landscape of decisional law which is difficult to apply, divorced from its underlying reasoning and inconsistent with the reasonable privacy expectations which people in our society have. In the view of this Court, we should chart a more coherent path forward. For the reasons discussed in the portion of the instant decision which preceded this Court's discussion of the policy issues relevant to the search incident to arrest doctrine, the Defendant's suppression motion is denied.

March 29, 2012_________________________

Daniel Conviser, A.J.S.C.

Footnotes

Footnote 1: Transcript of January 27, 2012 Hearing (hereinafter "Tr."), p. 31, ll. 15-20

Footnote 2: Tr., p. 41, l. 21 - p. 42, l. 8

Footnote 3: Tr. P. 47, ll. 3-5

Footnote 4: Although, as noted supra, the police saw Kelly with the Defendant on one occasion prior to the Defendant's arrest, the police did not realize that before they arrested Mr. Luna. For that reason, the Court did not consider Mr. Luna's prior association with Kelly to be relevant in the probable cause analysis.

Footnote 5: The Court also noted that the following circumstances existing at the time of arrest would prevent a search of a closed container incident to arrest: the fact that the container was "so securely fastened that the person arrested cannot quickly reach its contents", the fact that the arrestee makes it "unmistakably clear" that he would not seek to gain access to the container or the fact that the container was so small that it could not contain evidence of a crime.