Opinion
Argued June 6, 1983
Decided July 7, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CLIFFORD A. SCOTT, J., LUIS M. NECO, J.
Allen A. Hans for appellant.
Robert M. Morgenthau, District Attorney ( Curtis Edward Hall, Robert M. Pitler and David H. Steiner of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The search of defendant's shoulder bag, two feet away from him at the time of his arrest for a crime involving a gun, was valid for the reasons stated in the opinion of Justice ASCH at the Appellate Division (see, also, People v Smith, 59 N.Y.2d 454). The questions asked of the defendant at the time of his arrest, although prior to the requisite warnings, were nevertheless permissible as they were asked to clarify a volatile situation rather than to elicit evidence of a crime (see People v Huffman, 41 N.Y.2d 29; cf. People v Quarles, 58 N.Y.2d 664, cert granted sub nom. New York v Quarles, ___ U.S. ___, 103 S Ct 2118). Retrial of the defendant did not violate the double jeopardy clause when the court declared a mistrial of the first trial on the basis of the jury's deadlock after two days of deliberation (see Arizona v Washington, 434 U.S. 497, 509-510; People v Michael, 48 N.Y.2d 1, 9). The defendant's failure to request a charge pursuant to Allen v United States ( 164 U.S. 492) puts the court's failure to give such a charge beyond our review.
I agree that the order of the Appellate Division should be affirmed. I reach that conclusion, however, because I believe that a search of items within the defendant's immediate control prior to the arrest is justified by the probable cause that existed to make the arrest permissible. (See People v Smith, 59 N.Y.2d 454 [JASEN, J., concurring].) Such an approach has not only been sanctioned by the Supreme Court, but alleviates the necessity of the courts second-guessing the exact events which occurred and the order that they occurred in at the time of the arrest. A more certain standard, as the Supreme Court has recognized, will protect society's interest in assuring that the defendant's rights are protected while also assuring society's obvious interests in protecting its law enforcement officers and in expeditiously handling this critical aspect of police work.
Additionally, I believe the questions asked were proper even though Miranda warnings had not yet been given, not because they were to "clarify a volatile situation", but because they were asked to ascertain the nature of the situation. Reasonable inquiry when conducting the initial phases of an investigation is clearly permissible. ( Miranda v Arizona, 384 U.S. 436, 481; cf. People v Quarles, 58 N.Y.2d 664, cert granted sub nom. New York v Quarles, ___ U.S. ___, 103 S Ct 2118.)
Chief Judge COOKE and Judges JONES, WACHTLER and MEYER concur; Judge JASEN concurs in result in a concurring opinion in which Judge SIMONS concurs.
Order affirmed in a memorandum.