Summary
In Clements, the informant expressed some vague feelings of nervousness that the sellers might have become suspicious of him.
Summary of this case from People v. BradleyOpinion
Argued September 8, 1975
Decided October 28, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALEXANDER VITALE, J.
Denis Dillon, District Attorney (William C. Donnino and Jules E. Orenstein of counsel), for appellant. Alan Manning Miller for respondents.
In the circumstances disclosed in this record we hold that, incident to the arrest of defendants in their apartment, it was lawful for the police to seize the bricks of marijuana found in a closed dresser drawer as well as the marijuana and drug paraphernalia which were in plain view.
The adjective "consequential" might be more accurate in this instance. The seizure here followed the arrest which provided the predicate for the lawful entry of the police into defendants' apartment. This seizure, however, does not fall within the category of prevention of injury to the arresting officer or of immediate destruction of evidence by the person arrested, normally associated with the phrase, "search incident to a lawful arrest".
A named informer, apparently previously unknown to the police, but identified and still available, told officers with whom he was conversing that he knew where large quantities of marijuana could be purchased. When asked to do so the informer agreed to make a buy for the police. En route to the specified apartment, the informer further told the officers that bricks of marijuana were kept in the bottom drawer of a dresser in the apartment and described the precise location of that dresser.
On arriving at the apartment house, the officers searched the informer and then supplied him with a marked $5 bill. The informer proceeded to defendants' apartment, returning five to eight minutes later with three marijuana cigarettes. He told the officers that he bought only three cigarettes because the sellers began questioning him. At that he became nervous and when defendants left the room the informer left the apartment.
The police went to the apartment. When defendant Clements opened the door he was forthwith arrested and handcuffed. The arresting officers saw marijuana in a blue bowl, as the informer had told them they would, together with cigarette paper, a scale and various types of pipes, all in plain view. Defendant Metzger was located in a bathroom down the hall, arrested and handcuffed.
The officers then proceeded directly to a rear bedroom and to the dresser which had been described by the informer. On opening its bottom drawer they found 16 bricks of marijuana, again exactly as the informer had predicted, together with various bags of clear plastic containing marijuana. Examination of the top drawer of the same dresser revealed some 20 barbiturates with a few bags of marijuana and more cigarette paper. There was also a balance scale on top of the dresser.
When defendants' motions to suppress were denied, each pleaded guilty. On appeal from the judgments of conviction the Appellate Division reversed, granting the motions to suppress as to the marijuana found in the dresser drawers. On the People's appeal to our court we now reverse, concluding that the motions to suppress were properly denied in toto.
The issue before us is a relatively narrow one — was the seizure here of the marijuana in the closed drawers of the dresser illegal? We conclude that such seizure was lawful in the circumstances confronted by these arresting officers.
At the threshold we note that there was reasonable cause to sustain the warrantless arrests in the circumstances of this case (CPL 140.10). This is essentially a determination of fact, which was made in favor of the People by the suppression court and affirmed at the Appellate Division ( 44 A.D.2d 572) and is beyond our review, unless such finding was erroneous as a matter of law. (People v Alexander, 37 N.Y.2d 202, 204; cf. People v Oden, 36 N.Y.2d 382.) We find no such error of law. Surely in the circumstances described above the police officers had reasonable cause to believe that a crime had just been committed in the apartment, namely, the sale of marijuana cigarettes to the informer. (Cf. People v Montague, 19 N.Y.2d 121, 125.)
The real issue on this appeal is whether defendants' constitutional rights were infringed when, after the police had legally entered defendants' apartment and had precise and highly reliable information that there was a cache of narcotics in the bottom drawer of a dresser in the rear bedroom, they proceeded without a search warrant to seize the contraband to protect against the risk of its destruction or removal. We hold that under an exigency exception to the normal constitutional proscriptions, defendants' rights were not violated.
In so holding, we do not, as is suggested in the dissenting opinion, retreat from our holding in People v Williams ( 37 N.Y.2d 206). In that case we wrote (p 208), "The search was not conducted pursuant to a valid search warrant, or incidental to the completed arrest outside the searched premises, or with defendant's consent". More notably the search was not directed to a particular location previously described and known to conceal contraband but was rather a rummaging search for a television set.
The arresting officers had been told by the informer exactly where large quantities of marijuana were to be found. Developments prior to the seizure had fully substantiated both the credibility of the informer and the reliability of the information he supplied. (Cf. People v Montague, supra; United States v Wilcox, 357 F. Supp. 514, 518-519.) Thus there was probable cause for the search and consequent seizure (People v Slaughter, 37 N.Y.2d 596; People v Hendricks, 25 N.Y.2d 129, 133).
The conclusion that the police officers had probable cause for the search, however, does not end our inquiry. The critical issue is whether, assuming the existence of probable cause, it was lawful to conduct the search without first obtaining a warrant. Several years ago the issue was precisely framed in the United States Supreme Court:
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. * * *
"There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction". (Johnson v United States, 333 U.S. 10, 13-15 [footnotes omitted and emphasis added].)
Crucial then to the legality of the warrantless seizure here is the coexistence of two factors, each significant for itself and more significant in combination. The first is the existence of what are referred to as exigent or exceptional circumstances. (Coolidge v New Hampshire, 403 U.S. 443, 474-475.) The second is the fact that this seizure was specifically focused on a predetermined target, the predetermination of which was based on explicit information furnished by a known and still available individual whose reliability the police had currently substantiated (see People v Montague, supra). Most significant the seizure was conducted to prevent the threatened disappearance of tangible evidence.
We conclude that there is ample proof in this record to support the finding by the suppression court that there were exigent circumstances. In the first place in dealing with narcotics the officers were obviously dealing with potentially readily disposable contraband, even in the quantities ultimately discovered in this case. (Cf. United States v Davis, 461 F.2d 1026, 1032.) Secondly, on returning with only three marijuana cigarettes the informer both by his conduct and by his verbal statements to the police revealed his own anxiety and belief, following their questioning of him, that the sellers might have become suspicious of what was afoot. Indeed the informer appears to have been apprehensive for his own safety. Thirdly, but of less significance, the conduct of the officers reflected their own contemporaneous evaluation of the situation — that prompt police action was imperative. The apartment was entered without delay. Defendant Clements was arrested forthwith and promptly handcuffed. On locating defendant Metzger the officer immediately ordered him not to flush the toilet and promptly handcuffed him when he emerged. In sum the situation was sufficient to create, and evidently did create, a perceived likelihood that the marijuana of which the police had been informed might be destroyed.
As to the second factor, the informer, now confirmed as credible, had earlier located the particular dresser, had specifically identified the bottom drawer, and had described its contents. The selection of the target of the search was based on direct evidence; no resort was had to inference. Significantly, we think, in this case there was not a wide-ranging, exploratory, rummaging, or routine search of the character condemned in Chimel v California ( 395 U.S. 752).
Our case should be viewed from the perspective of the police in the circumstances with which they were confronted. Having taken defendants into custody, the officers obviously had responsibility to take some action to prevent destruction or removal of the marijuana and drug paraphernalia. They would have been derelict in the performance of their duty as enforcement officers had they done nothing. Their right, indeed their obligation, to seize the contraband in plain sight is not questioned. The issue here relates to the bricks of marijuana in the bottom drawer of the dresser in the rear bedroom. The responsibility of the police was heightened by the fact that their knowledge of the existence of the contraband was grounded on particularized information rather than reasonable inference or general expectation.
Several alternatives were open. The police could have promptly seized the "evidence", as they did. Or they could have posted a guard inside the apartment and gone immediately to obtain a search warrant. Or they could have set an outside watch until a warrant could be obtained. To have taken no action on the scene pending application for a warrant would have been unacceptable.
It is suggested that rather than proceeding immediately to take possession of the concealed contraband, the police should have maintained a surveillance of defendants' apartment for such period of time as would have been required to obtain a search warrant. The adoption of any such proposal, we suggest, as a practical matter, would necessarily have exposed these defendants to a much more objectionable intrusion than did the seizure here.
While such an alternative might be verbalized as only a "surveillance", on reflection one must be convinced that for the police merely to have manned an outside observation post would have been wholly inadequate to protect this contraband. As a practical matter the police would have had to take possession of defendants' apartment, including surely all means of ingress and egress. Any person entering or leaving the apartment would have had to have been at least stopped and probably then restrained. Control of the areas adjoining the dresser would have had to have been assured. In sum this proposal would have entailed a much greater intrusion in both space and time than that to which defendants were actually subjected.
Cf. Mr. Justice WHITE dissenting in Chimel v California (supra, p 775, n 5).
Nor, more notably, would defendants in such event have had the protection of an interposed appraisal of probable cause for the more extensive intrusion by any neutral or detached Magistrate. Time and circumstance would no more have permitted postponement of police action to allow for presentation to a Magistrate for this purpose than for issuance of a search warrant.
Confronted, as we think the officers here were, with the necessity to take some police action without delay, we cannot conclude that the action they chose to take must be struck down as unlawful. Faced with alternatives, as to none of which could there have been any preliminary independent judicial scrutiny, we cannot think that a fair or sensible balancing of the competing private and public interests demands that the greater intrusion be preferred over the lesser. (Cf. People v Kreichman, 37 N.Y.2d 693; People v Perel, 34 N.Y.2d 462, 467; United States v Evans, 481 F.2d 990.)
We hold that there was no infringement of the constitutional rights of these defendants. Other courts confronting similar factual situations have denied suppression. (E.g., United States v Pino, 431 F.2d 1043, cert den 402 U.S. 989; United States v Lozaw, 427 F.2d 911; State v Wiley, 522 S.W.2d 281 [Mo].) They have not held themselves bound by the unreasonably simplistic concept of "grabbable reach" attributed to Chimel (supra). (See People v Perel, supra, p 467.)
In Pino (supra), through a bathroom window an agent observed defendants measuring and mixing two white powders. When one defendant emerged from the apartment, he was arrested and an envelope of heroin was found on his person. Agents then entered the apartment, arrested the other defendant, proceeded to a rear bedroom, and seized therefrom the powders which had earlier been seen through the window. In upholding the search and seizure, Chief Judge LUMBARD noted (p 1045):
The statement in the dissent that the search in Pino was pre- Chimel is chronologically accurate but without significance. The court wrote (p 1044): "Although this search was conducted nearly four years ago and is not governed by the standards set forth in Chimel * * * we believe that the search would have been proper even if it had occurred today."
"Delay in searching the apartment in this case would not only have been dangerous for the officer left to guard the apartment, but also would have greatly increased the likelihood that the heroin would either be destroyed or even more likely eventually find its way on to the streets. Thus this was a situation where, in the language used by Mr. Justice Stewart in Chimel v California, * * * the inherent necessities of the situation at the time of arrest * * * required an immediate search of the entire apartment for the narcotics still there.
"* * * we think it clear that nothing in Chimel casts any doubt on the propriety of a search which is conducted under circumstances where an immediate and thorough search is imperative."
In Lozaw (supra), agents had observed a man from whom they had arranged to purchase narcotics emerge from defendants' apartment carrying a heavy suitcase. Agents immediately entered the apartment, arrested persons therein and seized narcotics found in the bathroom and living room. In concurring with the majority opinion sustaining the search and seizure, Chief Judge LUMBARD noted (pp 917, 918):
"under all the circumstances which culminated in Lozaw's arrest, it was the clear duty of the agents to make the arrest and seizure immediately, without a search warrant, and with the least possible delay.
* * *
"While it is true that the search conducted by the agents went beyond `the area from within which he might have obtained either a weapon or something that could have been used as evidence against him,' Chimel, supra, at page 768, 89 S Ct at 2043, it is also true that the search of the apartment had to be made immediately if the remaining marijuana was to be found. The agents could not know how many others were involved in the distribution of the marijuana; it could have been many more than the five men they had seen * * * Any extended delay would increase the risk of danger to the officers from others who would soon be aware of what had happened and the risk that others would find some means of making away with the marijuana."
We note that in both Pino and Lozaw the searches sustained were in scope far greater than that with which we are here confronted and were not predicated on the particularized and specifically directed information on which the police here operated.
The Supreme Court of Missouri in Wiley ( 522 S.W.2d 281, supra) recently confronted a factual circumstance almost identical to the one here under scrutiny. In Wiley an anonymous informer passed to the police a tip that in a certain apartment drugs could be found in a refrigerator and that the occupants of the apartment were preparing to dispose of such drugs. Having taken all reasonable steps to verify the information, the police proceeded to the apartment, gained entry, arrested defendants, and proceeded immediately to search the refrigerator where the drugs were found exactly as had been predicted by the informer. The court sustained the warrantless search notwithstanding its recognition that pursuant to Chimel the search went (p 290) "beyond the area of permissible search". The court held (p 291):
"We do not believe Chimel and its progeny control the situation here. The thrust of Chimel was that the arrest of a person at home could not justify a routine search. Chimel did not involve a situation where the officers, having certain information, searched a particular area for particular evidence. In Chimel, there was no indication of circumstances which indicated to the officers that removal or destruction of the evidence was imminent or threatened. Nowhere in the opinion does the Court suggest that exceptional circumstances existed by which evidence was threatened to be removed or destroyed.
"In this case there was evidence that such circumstances existed when the officers had to determine whether to proceed without warrant or wait until a warrant could be obtained. Under all the evidence we believe that the exceptional circumstances existed and therefore the search and seizure of the controlled substances was not an unreasonable one — the ultimate test under the Constitution as to whether the search and seizure was impermissible."
The difficult problem of determining when the exigency of threatened removal or destruction of contraband will justify departure from the general requirement that arrests and searches and seizures proceed only on duly issued warrants has, of course, received extensive treatment by other courts in other factual contexts. The problem has only been exacerbated by the absence of any Supreme Court elucidation of the issue. The United States Court of Appeals, Third Circuit, in directly confronting the question recently noted that the "Supreme Court has never spoken in a case such as this one where the searching officers know there is in fact a large quantity of contraband narcotics in a dwelling, and they are apprehensive that it may be removed or destroyed" (United States v Rubin, 474 F.2d 262, 268, cert den sub nom. Agran v United States, 414 U.S. 833). The Rubin court concluded that where (p 268) "Government agents * * * have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified." Recognizing that the emergency circumstances will vary from case to case, the court went on to list some of the circumstances which in the past have seemed relevant to the courts (pp 268-269): "(1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v Pino, 431 F.2d 1043, 1045 (2d Cir 1970), with Niro v United States, 388 F.2d 535 (1st Cir 1968); (2) reasonable belief that the contraband is about to be removed, United States v Davis, 461 F.2d 1026, 1029-1030 (3d Cir 1972); Hailes v United States, 267 A.2d 363 (DCCA 1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on their trail, United States v Doyle, 456 F.2d 1246 (5th Cir 1972); and (5) the ready destructibility of the contraband and the knowledge `that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,' United States v Manning, 448 F.2d 992, 998-999 (2d Cir 1971); United States v Davis, 461 F.2d at 1031-1032." We conclude that, in the totality of the circumstances presented by this case coupled with the fact the police here did not engage in a rummaging or general search but rather searched only the bedroom bureau which had been particularly described by the informer as where the contraband was located, the police here were justified in searching beyond the narrow reach defined by Chimel.
We note that Coolidge v New Hampshire ( 403 U.S. 443, supra), Vale v Louisiana ( 399 U.S. 30), United States v Jeffers ( 342 U.S. 48), and Agnello v United States ( 269 U.S. 20), cases relied on in the dissenting opinion, were all concerned with unlawful initial intrusions raising issues not here present where there can be no doubt that the entry into defendants' apartment was lawful. (See, particularly, Coolidge, supra, pp 455-456; Vale, supra, pp 33-34; Agnello, supra, pp 30-31.)
Accordingly the order of the Appellate Division should be reversed. Because the disposition there was on the law, the case must now be remitted to that court for review of the facts (CPL 470.40, subd 2, par [b]).
I dissent and would affirm the order of the Appellate Division. The dire prophecy of Mr. Justice FRANKFURTER in United States v Rabinowitz ( 339 U.S. 56, 80) has come to pass. The exceptions have finally consumed the rule. The majority holds today that the police may search an arrestee's home as long as they have a reasonable belief that evidence is present and that they refrained from a more outrageous intrusion. This holding adopts the rule of Harris v United States ( 331 U.S. 145) and United States v Rabinowitz (supra), which was expressly overruled by the Supreme Court in Chimel v California ( 395 U.S. 752) and contravenes the tightly guarded exception articulated in Chimel. Consequently, the majority opinion extends the concept of search incident to arrest far beyond the limits permissible under the Constitution. Indeed, the majority lacking conventional authority has seen fit to spawn a new rubric — search consequential to arrest. Interestingly, this radical departure from established principles (see, e.g., People v Chiagles, 237 N.Y. 193 [CARDOZO, J.], and cases cited therein) was accomplished without reference to New York authority.
Throughout the entire majority opinion a paucity of New York cases are cited. Both People v Slaughter ( 37 N.Y.2d 596) and People v Hendricks ( 25 N.Y.2d 129), are cited solely for a proposition that is not a subject of controversy in this case. Ironically both Slaughter (supra), and Hendricks (supra), involved searches pursuant to search warrants and dealt only with the sufficiency of the supportive affidavits.
Similarly, People v Montague ( 19 N.Y.2d 121), another search warrant case, and People v Kreichman ( 37 N.Y.2d 693) are inapposite because they only considered whether or not probable cause existed. The last case, People v Perel ( 34 N.Y.2d 462), as I point out in the text, directly supports my analysis that the "greater:lesser" intrusion analysis extends only to the personal effects of the arrestee.
The right of the People to be secure from unreasonable searches and seizures is enunciated by the Constitution (US Const, 4th Admt; N Y Const, art I, § 12). The Supreme Court has declared that warrantless searches are per se unreasonable (Coolidge v New Hampshire, 403 U.S. 443, 454; Chimel v California, supra). Despite this unequivocal declaration, there are certain exceptions which are recognized in deference to practical realities. These exceptions, however, are "jealously and carefully drawn" (Jones v United States, 357 U.S. 493, 499) and tightly guarded (Katz v United States, 389 U.S. 347, 357). Before proceeding to my consideration of the exception presented here, two fundamental aspects of this constitutional doctrine must be noted. First, it is conceptually untenable to justify a warrantless search or seizure in the absence of exigent circumstances (Coolidge, supra, at p 471). "Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause" (Agnello v United States, 269 U.S. 20, 33). Second, where a warrantless search or seizure has been effected and the evidence thus acquired is challenged, the burden is on the State to show the existence of an exceptional situation justifying the police action (Vale v Louisiana, 399 U.S. 30; Coolidge, supra, at pp 454-455). In the instant case the People contend the warrantless search of defendants' apartment and seizure of contraband in the bedroom was justifiable as incident to their arrest.
The People voice two propositions in support of their theory which may be synthesized as follows. First they contend that narcotics are easily disposed of and transported, therefore time was of the essence. Apparently, they would have our court fashion a rule which would dispense with the warrant requirement whenever narcotics are involved. This is a patently unacceptable approach. Next, the People assert that defendants were "apparent members of the drug culture" who lacked roots in the community, consequently police action was imperative lest the narcotics disappear. This argument is absolute speculation. Not only has there not been a finding of fact in this regard but the record is totally devoid of evidence with respect to defendants' subculture affinities or connection to the community. In the face of such specious attempts to rebut the presumptive unreasonableness of the instant search, it is hard to comprehend the majority's conclusion.
Nevertheless the court somehow finds exigency by virtue of the nature of the evidence, the informer's anxiety and the subjective, albeit groundless, conclusion by the police that action was imperative. The majority bolsters the dubious exigency by rationalizing that any alternative course of action would have been a greater intrusion of the defendants' rights.
I disagree with both aspects of the majority opinion. The search here was not justifiable as incident to arrest, nor on the grounds that police action was imperative.
A search "incident to arrest" is strictly limited to the defendants' "grab area" (Chimel, supra). The justification for this exception is predicated on the fact that an arrested person is likely to destroy any incriminating evidence or to use available means to effect an escape. To the extent that both possibilities represent stark reality, a warrantless search is permissible; where these possibilities do not exist a warrantless search is not permissible. In accordance with the practical considerations the grab area has been interpreted to mean the area within the defendant's reach at the time of arrest and any personal effects within that area. Recent Supreme Court cases comport with this interpretation. (See, e.g., Cupp v Murphy, 412 U.S. 291 [scraping of underside of defendant's fingernails when it appeared that he was attempting to destroy evidence upheld as incident to arrest]; United States v Edwards, 415 U.S. 800 [search of defendant's clothes, after incarceration, for paint chips upheld as incident to arrest]; Vale v Louisiana, supra [search of defendant's house after he was arrested outside held violative of constitutional rights]; see, also, United States v Robinson, 414 U.S. 218.) New York cases have adopted a similar interpretation of Chimel, one which is strictly limited to a search of the defendant (People v Troiano, 35 N.Y.2d 476; People v Marsh, 20 N.Y.2d 98); the premises within the arrestee's immediate control (People v Brosnan, 32 N.Y.2d 254; People v McKnight, 26 N.Y.2d 1034); or the defendant's personal effects which were within his dominion at time of arrest (People v Darden, 34 N.Y.2d 177 [attache case]; People v Weintraub, 35 N.Y.2d 351 [attache case]; People v Perel, 34 N.Y.2d 462, supra [personal notebook]).
Since Chimel, neither the Supreme Court nor our court has ever sustained a search incident to arrest which extended beyond the area within the defendant's immediate control. In such a situation it can hardly be said that the arrestee is capable of grabbing a weapon or destroying evidence. As Chief Judge BREITEL noted in Perel (supra, p 468) "[A]n arrest of a person will not justify a search of an entire home or other area in which he maintains a reasonable expectation of privacy, the arrest notwithstanding". Indeed this fundamental principle was reaffirmed by our court just last session. In People v Williams ( 37 N.Y.2d 206), we declared that the warrantless search of defendant's living room and bedroom after he had been arrested and handcuffed in the foyer was unconstitutional. (See, also, People v Velez, 43 A.D.2d 745, 746, where it was held that the police exceeded permissible limits in searching a second room of the apartment at a time when the two occupants were in one room and apparently under the control of five officers.) The mere fact that an arrest has been made may not be used as a pretext for a search beyond the grab area (see United States v Lefkowitz, 285 U.S. 452; Chimel, supra; but see Chimel, supra, at p 780 [WHITE, J., dissenting]). Had defendants been arrested outside the apartment, a search of the bedroom would clearly violate their constitutional rights (Vale v Louisiana, 399 U.S. 30, supra; People v Loria, 10 N.Y.2d 368). Surely, this constitutional protection does not rest on so fortuitous a circumstance as the defendants' location (Trupiano v United States, 334 U.S. 699, 707, 708).
In its memorandum our court noted (p 208) "Defendant was arrested and handcuffed in the hallway adjoining the door of his apartment, or immediately inside the door in the foyer."
Applying these principles to the case at bar, the arresting officers were authorized to search the area near the entrance, the area within Clements' reach, and the bathroom, Metzger's grab area. Both defendants submitted to arrest without the slightest protest (this is especially unusual as to the one defendant who was interrupted while indisposed in the bathroom). Both were immediately handcuffed and guarded in the living room by the police. By no stretch of the Chimel doctrine could the dresser in the bedroom, which was concededly unoccupied at all times, be searched as incident to arrest (see People v Williams, supra; People v Velez, supra).
Turning to the second apparent basis for the majority's holding, I find this record devoid of any indication that the contraband was in danger of being destroyed. Although experience teaches of the easy disposability of narcotics, that does not justify making the mere presence of drugs an exigency. It is difficult to conceive of narcotics which may not be readily destroyed. The appropriate solution for this problem is a no-knock search warrant (CPL 690.50), not the course suggested by the majority. Moreover, the mere hearsay statement that the informer was anxious while purchasing the drugs is susceptible of varying interpretations and without something concrete hardly indicative of impending flight or destruction of evidence by the defendants.
(But see U.S. Code, tit 21, § 879, repealed by Public Law No. 93-481.)
The decisional law on this subject accords with this view. People v Torres ( 45 A.D.2d 185) is in point. There, the police had been informed that heroin was being sold from defendant's apartment and would probably be sold out by morning. A subsequent warrantless search and seizure was declared illegal by the Appellate Division which noted the total lack of traffic in or out of the apartment and lack of indication that there was any threat that the narcotics were to be destroyed. (See, also, State v Wiley, 522 S.W.2d 281 [Mo], where the informer, whose information had been verified to a great degree, told the police that the defendants planned to depart as soon as they finished dinner; Williams v State, 331 A.2d 380 [Del], where the police knew a major narcotics purchase was being conducted in a motel and both buyers and sellers would depart after the negotiations were concluded; State v Miller, 528 P.2d 1082 [Ore], search upheld where informer, after agreeing with police to buy drugs, emerges from house for more money and a lookout within the house is watching.) Thus, in light of this record, which contains virtually nothing to support a reasonable belief that the defendants or the marijuana were likely to vanish, the instant search is unjustifiable.
Turning to the premise that the police subjectively evaluated the situation and concluded that further police action was imperative, there is nothing to support that conclusion. The police knew that no one else was in the apartment so there was no apparent danger to the drugs in the bedroom. (See, e.g., United States v Rubin, 474 F.2d 262, where suspects were inside the building in question, and the police were aware of a specific attempt by someone outside to warn them of their peril. (See, also, Ker v California, 374 U.S. 23, 42, occupant of apartment might distribute or hide drugs; Theobald v United States, 371 F.2d 769, people inside the room might destroy the evidence; Dorman v United States, 435 F.2d 385, armed fugitive believed to be inside residence; United States v Bradley, 455 F.2d 1181, suspects in the midst of a narcotics transaction; United States v Davis, 461 F.2d 1026, suspects in dwelling in the midst of cutting heroin preparatory to going out on the street with it; United States v Evans, 481 F.2d 990, specific risk that a suspect would get a warning and act to destroy evidence; State v Patterson, 192 Neb. 308, suspects inside and attempts to arrest as they left singly could alert those inside.) Vale (supra) is particularly instructive in this regard. There a search of defendant's house was declared illegal despite the fact that defendant's mother and brother were on the premises and could have conceivably destroyed or removed evidence. Nor was there anything to indicate the existence of confederates lurking about in order to spirit away the remaining drugs, or that others had been or could be informed of the arrest and act to eliminate the proof (see, e.g., Commonwealth v Forde, 329 N.E.2d 717 [Mass]). Furthermore the evidence was not of such a perishable nature as to necessitate an immediate seizure (e.g., Schmerber v California, 384 U.S. 757). Here, the police were operating on the scantiest of information, the word of a previously unknown 17-year-old informant who they casually met carrying a bucket of paint across Sears' parking lot. They did nothing to check the ownership of the apartment or ascertain the extent of the operation they were infiltrating despite the fact that it was located in a precinct 15 miles from the one to which they were assigned. It is clear therefore the conduct of the officers can hardly be characterized as reasonable and that the sole factor relied on by the officers, the informer's expression of anxiety, was insufficient to render police action imperative.
There is nothing in the record to indicate that the police knew where informer lived or whether his identity was verified. Apparently the informer lacked identification thereby making it impossible for the police to establish that he had given them his correct name. Such an informer can hardly be characterized as "available".
As if sensing the inadequacy of and lack of authority for their primary justifications, the majority supplements their reasoning by resort to the premise that once defendants were arrested, subsequent invasions of privacy are relatively minor when compared to alternative courses of action. Initially, and most significantly, I would note that this reasoning fails to recognize the "high function" played by the search warrant. It is not merely a formality to be dispensed with to accommodate the police (Agnello, 269 U.S. 20, 33, supra; United States v Jeffers, 342 U.S. 48, 51). As noted in Coolidge ( 403 U.S. 443, 470, supra,) inconvenience caused by the warrant requirement is not constitutionally cognizable. Rather the Constitution is designed to place the objective evaluation of a neutral Magistrate between the citizenry and the police so as to secure the individual against arbitrary intrusion by the State. Merely precluding the introduction of evidence seized without probable cause will not achieve that objective. (Otherwise, warrants will be necessary only when the police lack probable cause.) Thus if the constitutional guarantee is to have substance, violations must be prevented, not simply redressed (Chimel, 395 U.S. 752, 766, n 12, supra; Coolidge, supra, at pp 450-451). The right against unlawful search and seizure must be protected even though the same result might have been accomplished in a lawful manner (Silverthorne Lbr. Co. v United States, 251 U.S. 385, 392).
Accordingly, where a party's constitutional rights have been trammelled, mere speculation as to what greater intrusion he was spared will not transform an illegal search and seizure into a legal one. To do so would be the equivalent of saying that a guilty person need not be afforded a fair trial. That is abhorrent to our jurisprudence and something we have never deigned to do (People v Alicea, 37 N.Y.2d 601).
Upon close analysis it is clear that the "greater:lesser" intrusion analysis stems from those cases considering the personal effects of the arrestee and the so-called inventory search cases (see, e.g., United States v Edwards, 415 U.S. 800, supra; People v Perel, 34 N.Y.2d 462, supra; People v Weintraub, 35 N.Y.2d 351, supra; Cardwell v Lewis, 417 U.S. 583; People v Sullivan, 29 N.Y.2d 69), and only comes into play where the defendant's expectation of privacy has ceased. Here the defendants retained a reasonable expectation of privacy as to the rear bedroom, so the search of the dresser located in the bedroom was unconstitutional (People v Perel, supra).
I would also note that the cases from outside our jurisdiction, on which the majority relies heavily, are of questionable validity as applied to our State's constitutional protection and are in any event readily distinguishable. United States v Pino ( 431 F.2d 1043, cert den 402 U.S. 989), a pre- Chimel case, involved an arrest effected at 1:00 A.M. in a high-crime area where it would have been dangerous to post a guard. In addition Pino himself told the officers that the drugs were in the bedroom. Clearly the instant case where the arrest occurred in the middle of the afternoon in a garden apartment complex in residential Long Island lacks the sense of urgency present in Pino. Similarly, United States v Lozaw ( 427 F.2d 911), which was also decided before the standard articulated in Chimel was applicable, is distinguishable on its facts by virtue of the fact that there were possible confederates and a statement by one of the arrestees that the narcotics were to be moved later.
I cannot agree that surveillance or placing a guard amounts to a greater intrusion. In United States v Jeffers ( 342 U.S. 48, supra) a search similar to the one before us was held invalid where the police entered defendant's premises for the sole purpose of seizing contraband rather than merely placing a guard at the door (but cf. Cady v Dombrowsky, 413 U.S. 433 ). Nor may the majority take solace as they seem to do, in the fact that the search here was narrow in scope, i.e., limited to the dresser drawer. In the first place, these police did not limit the search to the predetermined target. In addition to searching the bottom drawer of the dresser they searched the top drawer (finding barbiturates which resulted in a separate count) and apparently looked in other areas of the apartment in a vain search for the marked $5 bill which the informer left in the apartment. Secondly, an unconstitutional search no matter how meticulously conducted is unconstitutional nonetheless. Had the police been so meticulous in the performance of their sworn duties, this case never would have arisen. Moreover, the majority erroneously extrapolates the concept of predetermined target which was articulated in a different context in People v Hansen ( 38 N.Y.2d 17). To justify the search at bar on the ground that it focused on a predetermined target would seem to resurrect the approach rejected by the United States Supreme Court in People v Sibron ( 18 N.Y.2d 603, revd 392 U.S. 40).
By spelling the demise of Chimel the majority has eliminated a sound rule which was capable of universal understanding; thereby inviting a new era of ad hoc determinations. Even more unfortunate, however, is that the home has been stripped of its once secure position and is now at the mercy of and fair game for governmental intrusion and expediency.
In view of the foregoing I would affirm the order of the Appellate Division.
Chief Judge BREITEL and Judges JASEN and GABRIELLI concur with Judge JONES; Judge WACHTLER dissents and votes to affirm in a separate opinion in which Judges FUCHSBERG and COOKE concur.
Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.