The People, Respondent,v.Graham Reid, Appellant.BriefN.Y.November 18, 2014 APL-2013-00155 To be argued by RICHARD NAHAS (20 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - GRAHAM REID, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov VINCENT RIVELLESE RICHARD NAHAS ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 31, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 QUESTION PRESENTED ................................................................................................ 4 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 5 The People’s Case ....................................................................................................... 5 The Court’s Decision.................................................................................................. 8 POINT ................................................................................................................................... 10 THE SEARCH INCIDENT TO ARREST WAS PROPER BECAUSE IT WAS CONDUCTED AFTER THE POLICE DEVELOPED PROBABLE CAUSE TO ARREST DEFENDANT AND IT WAS NEARLY CONTEMPORANEOUS WITH HIS ARREST. ................................... 10 CONCLUSION ................................................................................................................... 42 -ii- TABLE OF AUTHORITIES FEDERAL CASES Ackerson v. City of White Plains, 702 F.3d 15 (2d Cir. 2012) ........................................ 26 Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967) .................................................... 40 Brown v. Illinois, 422 U.S. 590 (1975) ......................................................................... 25, 40 Chimel v. California, 395 U.S. 752 (1969) ................................................................... 14, 16 Devenpeck v. Alford, 543 U.S. 146 (2004) ....................................................................... 26 Holt v. Simpson, 340 F.2d 853 (7th Cir. 1965) ................................................................. 19 Horton v. California, 496 U.S. 128 (1990)......................................................................... 23 Knowles v. Iowa, 525 U.S. 113 (1998) .......................................................................... 40-41 Pennsylvania v. Mimms, 434 U.S. 106 (1977) ............................................................. 14, 23 Rawlings v. Kentucky, 448 U.S. 98 (1980) ............................................................ 33, 39-40 Sibron v. New York, 392 U.S. 40 (1968) ..................................................................... 33, 35 Stoner v. California, 376 U.S. 483 (1964) .......................................................................... 15 Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................. 14, 23 United States v. Brown, 463 F.2d 949 (D.C. Cir. 1972) .................................................. 40 United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) ....................................................... 19 United States v. Riggs, 474 F.2d 699 (2d Cir. 1973) ....................................... 16-19, 35, 40 United States v. Robinson, 414 U.S. 218 (1973) ............................................................... 14 United States v. Skinner, 412 F.2d 98 (8th Cir. 1969) ........................ 16-19, 31-32, 35, 40 Whren v. United States, 517 U.S. 806 (1996) ............................................................... 22-25 -iii- STATE CASES People v. Batista, 88 N.Y.2d 650 (1996) ...................................................................... 14, 23 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ................................................................... 21 People v. Copeland, 39 N.Y.2d 986 (1976) ....................................................................... 38 People v. Cruz, 43 N.Y.2d 786 (1977) .......................................................................... 19-21 People v. De Bour, 40 N.Y.2d 210 (1976) ........................................................................ 14 People v. De Santis, 46 N.Y.2d 82 (1978) ......................................................................... 18 People v. Diaz, 81 N.Y.2d 106 (1993) ......................................................................... 36, 38 People v. Driscoll, 101 A.D.3d 1466 (3d Dept. 2012) ..................................................... 38 People v. Erwin, 42 N.Y.2d 1064 (1977) .......................................................... 25-26, 37-38 People v. Evans, 43 N.Y.2d 160 (1977) ....................... 14-16, 19-22, 26-30, 32, 34-35, 38 People v. Gomez, 13 N.Y.3d 6 (2009) ............................................................................... 14 People v. Hall, 10 N.Y.3d 303 (2008) ................................................................................ 18 People v. Hampton, 44 A.D.3d 1071 (2d Dept. 2007) .................................................... 26 People v. Hoffman, 135 A.D.2d 299 (3d Dept. 1988) ..................................................... 38 People v. Julien, 100 A.D.3d 925 (2d Dept. 2012) ........................................................... 39 People v. Kalikow, 90 A.D.3d 1558 (4th Dept. 2011) ..................................................... 38 People v. Landy, 59 N.Y.2d 369 (1983) ........................................................................ 20-21 People v. Marsh, 20 N.Y.2d 98 (1967) ......................................................................... 38, 41 People v. Martin, 50 N.Y.2d 1029 (1980) .......................................................................... 13 People v. McCorkle, 111 A.D.3d 557 (1st Dept. 2013) ................................................... 26 People v. McLeod, 161 A.D.2d 671 (2d Dept. 1990) ...................................................... 39 People v. Reid, 104 A.D.3d 58 (1st Dept. 2013) ......................................... 3, 7, 22, 30, 33 -iv- People v. Robinson, 97 N.Y.2d at 348........................................................ 22-23, 25-26, 34 People v. Savona, 112 A.D.2d 328 (2d Dept. 1985) ........................................................ 39 People v. Simon, 45 Cal. 2d 645, 290 P.2d 531 (1955) .............................................. 17, 32 People v. Sims, 289 A.D.2d 597 (2d Dept. 2001) ............................................................. 39 People v. Troiano, 35 N.Y.2d 479 (1974).......................................................................... 38 People v. Weintraub, 35 N.Y.2d 351 (1974) ............................................................... 14, 18 Wallace v. City of Albany, 283 A.D.2d 872 (3d Dept. 2001) .......................................... 26 FEDERAL CONSTITUTIONAL PROVISIONS U.S. Const., Amendment IV ....................................................................... 14, 17, 22-23, 31 STATE STATUTES Criminal Procedue Law § 470.05 ........................................................................................ 13 Penal Law § 265.02 ................................................................................................................. 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- GRAHAM REID, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Jonathan Lippman, defendant Graham Reid appeals from an order of the Appellate Division, First Department, dated January 3, 2013, which affirmed a judgment of the Supreme Court, New York County (Arlene Goldberg, J.), rendered March 4, 2010. By that Supreme Court judgment defendant was convicted, upon his plea of guilty, of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]). He was sentenced to an indeterminate prison term of from two to four years, which was to run consecutively to an undischarged term of imprisonment for a prior murder conviction. Defendant has been conditionally released to parole. At about 5:30 a.m. on February 15, 2009, Police Officer Jacob Merino spotted defendant driving erratically on West 125th Street in Manhattan, swerving in and out -2- of his lane and crossing the yellow dividing line. After a few minutes, Officer Merino pulled him over. As he approached the driver’s side of defendant’s car, Merino noticed two plastic cups in the center console. Defendant’s eyes were watery, his clothing was disheveled, and the odor of alcohol emanated from the car. Merino asked defendant if he had been drinking, to which defendant responded that he had had one beer after work at 4:00 p.m. the previous day. Merino ordered defendant out of the car and patted him down to check for weapons. Merino felt a hard object in defendant’s jacket and removed a switchblade knife. Merino then handcuffed defendant, just as his partner discovered an open container of liquor in the car. At the stationhouse, the police also recovered two bags of heroin that were hidden in defendant’s sleeve, but a breath test indicated zero alcohol in defendant’s blood. By New York County Indictment Number 717/09, filed on February 27, 2009, a grand jury charged defendant with one count each of Criminal Possession of a Weapon in the Third Degree (possession of a switchblade with a prior conviction) and Criminal Possession of a Controlled Substance in the Seventh Degree (possession of heroin). Before trial, defendant moved to suppress, inter alia, the switchblade. A suppression hearing was held on January 29, 2010 before the Honorable Arlene Goldberg. On February 3, 2010, Justice Goldberg declined to suppress the knife, finding that the search of defendant’s jacket was a proper search incident to arrest. That same day, defendant pleaded guilty to third-degree criminal possession of a -3- weapon, in full satisfaction of the indictment. On March 4, 2010, the court sentenced him as noted above. Defendant appealed, arguing that the suppression court erred in ruling that the search was justifiable as a search incident to arrest for four reasons: 1) the fruits of the search incident to arrest improperly served as justification for the arrest; 2) the court erroneously found the search permissible based on the existence of probable cause to arrest even absent an actual arrest; 3) the search was improper because the arresting officer had no intention of arresting him when he conducted the search; 4) the search was improper because the police lacked probable cause to arrest defendant for drunk driving. The Appellate Division, First Department, unanimously affirmed. It concluded that because there was probable cause to arrest defendant at the time of the search and the search was contemporaneous with the formal arrest, the search was a proper search incident to arrest. The officer’s state of mind, it held, was irrelevant to determining whether there was probable cause to arrest defendant. People v. Reid, 104 A.D.3d 58 (1st Dept. 2013). Judge Lippman granted defendant’s application for leave to appeal. 21 N.Y.3d 1008. On appeal to this Court, defendant again argues that the suppression court misconstrued the law to allow a search incident to arrest solely because there was probable cause to arrest. In addition, he argues that applying the law correctly yields the conclusion that the search was improper because the officer failed to place defendant in custody before formally arresting him. -4- QUESTION PRESENTED May the police conduct a search incident to arrest of a suspect before formally arresting him if they have probable cause to arrest before the search and the formal arrest follows almost contemporaneously? The courts below answered in the affirmative. -5- THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case On February 14 2009, Police Officer JACOB MERINO and his partner Louis Pichardo were assigned to an unmarked patrol car in the Central Harlem area of Manhattan (A19-21).1 As members of the Anticrime Unit, they were tasked with targeting robberies, burglaries and other major crimes (A19; A27; A29). While on patrol, the officers also encountered Vehicle and Traffic Law violations, such as drunk driving and traffic infractions; Officer Merino, accordingly, was familiar with the signs of intoxication and had participated in the arrests of about ten drunk drivers (A19-20, A27). Around 5:30 a.m., as Officer Merino drove west on West 125th Street, he and Pichardo spotted a black Cadillac traveling in the same direction (A21; A27; A29). The car kept “crossing the double solid yellow lines onto the oncoming traffic lane and swerving in and out from the lane without using a signal light” (A21; A28). Merino did not immediately stop the Cadillac for the lane violation lest it was an inadvertent mistake, opting instead to watch the Cadillac for a few minutes (A30). The Cadillac continued to drive erratically for about ten minutes, eventually turning left onto 12th Avenue without signaling (A22; A28). At that point, Merino “suspected 1 Parenthetical page references preceded by “A” are to defendant’s Appendix. -6- alcohol might have been a factor” in the erratic driving, activated his police lights, and pulled over the Cadillac (A22; A30-31). As Merino walked from the police car to the driver’s side of the Cadillac, he noticed two plastic cups in the center console, although he could not see their contents (A22; A31; A69-70; A73). Defendant sat in the driver’s seat, another man occupied the front passenger seat, and a third sat in the back (A32; A34). Defendant’s eyes were watery, his clothing was “disheveled,” and Merino could smell the odor of alcohol emanating from the car (A22, A39, A74). Merino asked defendant where he was coming from and where he was going (A22; A33; A38). Defendant responded that he had just met the two passengers that were inside the car with him, and that he was “giving them a lift” (A22; A76). Merino asked defendant whether he had been drinking, and defendant replied that he had “just got off from work” and had drunk “one beer” (A22-23; A38-39; A73-75). When Merino thereafter inquired what time defendant had left work, defendant answered, “4:00 p.m.” – about 13 hours earlier (A23; A39). Merino asked defendant to step out of the car (A23; A39-40; A75). Merino was not “going to arrest” defendant at that very moment, opting instead “to continue speaking to him” (A75). As defendant got out of the car, Merino inquired whether he had “any weapons on him” (A23; A42; A75). Defendant answered, “No” (A23; A42; A75). Merino nonetheless gave defendant a “quick pat-down” and felt a “hard object” in defendant’s jacket pocket (A23; A42-43). Merino asked defendant what it -7- was, but defendant did not respond (A23). Merino removed the object and recognized it to be a switchblade knife (id.). Merino then decided to arrest defendant, and he placed defendant in handcuffs (id.).2 “As the defendant was handcuffed” (A69), Officer Pichardo called out to Merino and showed Merino an open bottle of “Hennessy” – a type of liquor – that he had removed from defendant’s car (A23-24; A46; A68). Pichardo brought the bottle and the two plastic cups from the center console over to Merino (A24; A46). The cups contained liquid giving off the same alcoholic smell as the contents of the bottle (A24; A46). Merino called for another patrol car to take defendant back to the precinct station house (A24; A40).3 At the station house, Officer Pichardo searched defendant and recovered two bags of heroin, which were hidden inside his shirt sleeve (A23-24; A62-63; A72). At approximately 7:00 a.m., an hour and a half after the initial stop, a highway patrol officer gave defendant a breathalyzer test that indicated that defendant had a zero blood-alcohol content (A24-25; A62-63; A65; A71-72). Defendant was not tested for drugs (A68; A72-73). 2 In Merino’s mind, it was “only because [he] ultimately found the switchblade” that he arrested defendant when he did (A75). 3 Defendant’s passengers, who had slurred speech and watery eyes, also appeared to be intoxicated (A33-35; A46: A68). -8- The Court’s Decision At his suppression hearing, defendant argued that the police search was improper because Officer Merino “lacked probable cause to search and seize” defendant (A114), the officer’s testimony was “incredible” (A114), his stop of defendant’s car was pretextual (A116), he lacked any basis to ask defendant to step out of his car (A119-21), and the frisk was illegal because Merino was not in fear for his safety (A123-26). The People opposed the motion (A132-52), noting as pertinent here that Officer Merino had probable cause to arrest defendant for drunk driving even before he searched defendant (A146). On February 3, 2010, in an oral ruling (A154-163), the hearing court denied defendant’s motion to suppress the physical evidence recovered from him. The court found Officer Merino “completely credible” and made factual findings consistent with his testimony (A154-59). The court rejected defendant’s contention that the stop of defendant’s car was pretextual (A159). The court also concluded that Merino’s observations of defendant’s driving gave him the right to stop the car, make his inquiries and ask defendant to step out of the car (A160). However, the court found, Merino’s observations did not authorize a frisk because he had no reason to believe that defendant had a weapon or to fear for his safety (A160). The court noted that Merino’s comment that “he did not at the time intend to arrest” defendant when he asked him to step out of his car was “not dispositive” regarding any probable cause analysis (A157). -9- Having rejected the argument that Merino could frisk defendant because he feared for his safety, the court continued In my view the question as well as the frisk and ultimate search can only be justified if the officer had probable cause to arrest the defendant at that time. I find that the totality of the circumstances, the observations he made of defendant, the manner that the defendant was driving, the alcohol emanating from the car, the cups right in the middle of the console, the defendant’s answers about – admission that he was drinking, and the time sequence of that all combine to provide probable cause to the officer. That he could have arrested the defendant, making his actions lawful. So I find that the recovery – [h]is arrest, the recovery of the knife was pursuant to a valid arrest. It could be justified as a search incident to arrest and that the subsequent search that occurred in the precinct was also a valid search. (A161-62). Without articulating any objection to the court’s reliance on the search incident to arrest theory for denying suppression of the knife, defendant then pleaded guilty (A163). -10- POINT THE SEARCH INCIDENT TO ARREST WAS PROPER BECAUSE IT WAS CONDUCTED AFTER THE POLICE DEVELOPED PROBABLE CAUSE TO ARREST DEFENDANT AND IT WAS NEARLY CONTEMPORANEOUS WITH HIS ARREST. A cautious, restrained police officer watched defendant drive out of his lane across a double yellow line, but he declined to stop defendant’s car immediately. Instead, the officer gave defendant the benefit of the doubt and pulled him over only after he watched defendant commit additional infractions. Upon stopping the car, the officer smelled alcohol, saw cups and observed defendant to be in an apparently intoxicated condition. As defendant concedes (Def.’s Br. at 8-9), based on these circumstances the officer could have arrested him at that very moment, and could also have searched him incident to that arrest without raising any constitutional concerns. But this cautious, restrained police officer – who everyone agrees had sufficient objective basis to arrest defendant and search him – subjectively held off on deciding subjectively whether he would arrest defendant, instead opting for the moment to subject defendant to the lesser intrusion of patting him down and continuing questioning. At that point the officer felt a knife, seized it and handcuffed defendant – in the officer’s mind thereby effecting the arrest which, as noted, was plainly authorized even before the officer found the knife. Now, defendant pieces together a hyper-technical argument to suppress based essentially on the notion that the officer who arrested him – even though he had -11- sufficient predicate to arrest and search defendant before he did either – violated defendant’s rights by doing the search before undertaking to arrest him. Defendant’s arguments are unpreserved, because he never advanced any position before the suppression court about the law of search incident to arrest, much less his particular current claims as to how the timing of the arrest and search and the intent of the officers should affect the validity of the search. Defendant’s arguments are also unpersuasive. Defendant does not dispute that the police properly stopped his car for erratic driving, that their post-stop observations immediately gave them probable cause to arrest defendant for driving drunk, or that they arrested him. The only bone of contention is defendant’s complaint that while the search took place after the police obtained probable cause to arrest defendant, it occurred a few seconds before they actually decided to arrest him. On defendant’s view, a search simply cannot be deemed incident to an arrest that temporally follows it. But as will be discussed more thoroughly below, the key principle governing police intrusion on a suspect’s liberty is reasonableness, and what the police did here was eminently reasonable. Indeed, defendant’s contrary position – that the search should be invalidated because the police did not physically or formally arrest him sooner – would encourage the police to act as aggressively as possible by arresting anyone and everyone immediately upon realizing that they are authorized to do so, on pain of losing evidence as a consequence of their exercise of restraint. There is no reason to strain to reinterpret this Court’s precedents in such a way as to -12- invalidate this search, and thereby to discourage the police from carefully and deliberately investigating before taking action as the officer judiciously did here. A. Defendant’s Claims Are Entirely Unpreserved. In his brief, defendant argues that the suppression court and the Appellate Division improperly construed the search as incident to his arrest based solely on the existence of probable cause to arrest, without requiring that there be an accompanying arrest. On defendant’s view, a search incident to arrest requires that the police at least place the suspect in “custodial” arrest before they actually perform a search, and that the police harbor the intent of effecting a “formal” arrest thereafter. But defendant did not preserve any argument that the suppression court applied the incorrect legal standard in upholding the police search here as a search incident to arrest, because he said nothing at all about that standard. He therefore also failed to preserve his specific argument that, under the law permitting searches incident to arrest, the search was illegal because it preceded the formal arrest or because the police had not yet decided to make an arrest. To begin, during the suppression hearing, defendant never argued that the search of his jacket was not a proper search incident to his arrest. He limited his argument to an assertion that a protective frisk was unwarranted. Defendant registered no position as to whether or how to consider whether the seizure of the knife was the product of a search incident to arrest. Moreover, when the suppression court held that the search “could be justified as a search incident to arrest” (A162), -13- defendant raised no objection to the court’s conclusion, to the factual basis for the conclusion, or to the legal analysis used to reach it. Accordingly, the prosecutor, who had argued that probable cause to arrest existed before the search, had no occasion to address the court’s holding either. Thus, because defendant did not alert the suppression court to any purported deficiency in its holding at a time when it could have been answered by the People or remedied by the court, he failed to preserve his current challenges to the court’s denial of his suppression motion. See CPL 470.05(2); People v. Martin, 50 N.Y.2d 1029, 1031 (1980). It logically follows that, since defendant failed to address the question of search incident to arrest in any fashion either by argument in support of suppression or by objection to the suppression ruling, his current, detailed arguments on the topic must be unpreserved. After all, his newfound arguments are crafted entirely in furtherance of a standard he never even asked the court to apply. Having prevailed on his argument that a protective frisk was improper, and having failed even to allege that a search incident to arrest was not authorized, he certainly did not give the trial court a chance to consider his current contentions about how the chronology of the arrest and search and the degree of physical custody should affect the application of the search incident to arrest rubric. Such weighty changes to the law governing suppression hearings throughout the state should not be decided here without litigation of the question first in the courts below. -14- B. Under New York Law, A Search Incident To Arrest May Occur Before the Formal Arrest When the Police Have Probable Cause To Arrest Before They Begin The Search and the Search Is Nearly Contemporaneous With the Formal Arrest. In any event, the search was proper. As a general matter, the touchstone of any analysis of police conduct under the Fourth Amendment is reasonableness. See Pennsylvania v. Mimms, 434 U.S. 106, 107 (1977); Terry v. Ohio, 392 U.S. 1, 19 (1968); People v. Gomez, 13 N.Y.3d 6, 10 (2009) People v. Batista, 88 N.Y.2d 650, 653 (1996); People v. De Bour, 40 N.Y.2d 210, 217 (1976). As pertinent here, a police officer is permitted to search a suspect for weapons or evidence incident to an authorized arrest. See United States v. Robinson, 414 U.S. 218, 235 (1973); People v. Weintraub, 35 N.Y.2d 351, 353-54 (1974); see also Chimel v. California, 395 U.S. 752 (1969). The authority to conduct such an arrest and search vests when the officer has probable cause to arrest, and the search is authorized regardless of whether the officer actually has a reason to fear that the suspect is armed or whether evidence is expected to be found on the suspect’s person. People v. Weintraub, 35 N.Y.2d at 354. “The lawful custodial arrest being a constitutionally reasonable intrusion upon the defendant’s privacy, the search incident requires no additional justification.” Id.; Chimel v. California, 395 U.S. at 763. A search incident to an arrest may precede the arrest under certain conditions. This Court set forth the law governing such pre-arrest searches in People v. Evans, 43 N.Y.2d 160 (1977). In Evans, an undercover police officer paid Evans $30 in -15- exchange for heroin and signaled his team that he had bought drugs. Another member of the team stopped Evans, searched him and seized the $30, but did not then arrest him. One month later, the police arrested Evans. Evans was charged with sale and possession of heroin based on his drug sale to the undercover officer a month earlier, and the People sought to introduce the $30 on the theory that it had been seized incident to the arrest that took place a month later. Evans argued that the recovery of the $30 a month before his arrest was the product of an unconstitutional search. 43 N.Y.2d at 162-63. This Court agreed with Evans and suppressed the $30, but in doing so, the Court noted that “[t]he fact that the search precede[d] the formal arrest is irrelevant.” Id. at 166. The Court focused instead on the one-month delay between the search and the arrest. Such delays, it reasoned, would expose suspects to “any intrusions the police deem appropriate for however long they allow him to remain at large.” Id. at 165. To avoid that possibility, Evans adopted the rule that for a pre-arrest search to be lawful there must be a legal basis for an arrest at the time of the search and the search must be relatively contemporaneous with the formal arrest. Id. at 162. See Kamins, New York Search & Seizure § 4.03[5] at 4-148 (2008 Ed.) (“as long as there is probable cause for the arrest, it is not fatal if the search occurs immediately before, rather than with the formal arrest”); see also Stoner v. California, 376 U.S. 483, 486 (1964) (a search “can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the -16- arrest”). The Court noted, in dictum, that “[i]t may be said that the search and arrest must constitute a single res gestae,” or “one event.” Evans, at 166. Although this Court did not explain in Evans precisely why reversing the normal order of arrest and search presented no constitutional problem, the reasoning in Evans is instructive. Evans noted that its holding found support in two federal Court of Appeals cases, United States v. Riggs, 474 F.2d 699 (2d Cir.), cert. den., 414 U.S. 820 (1973) and United States v. Skinner, 412 F.2d 98 (8th Cir.), cert. den., 396 U.S. 967 (1969). In Riggs, the police observed a large plastic envelope containing white powder in the purse of a woman they had probable cause to believe was involved in drug trafficking. They then flipped open the top of her camera case and found two more plastic bags with powder, as well as cash. After a field test determined the drugs were heroin, they arrested her. In upholding the search, the Second Circuit noted that the government had not argued that Riggs was “arrested de facto prior to the search” Riggs, 474 F.2d at 704, and that the court would not rely on that reasoning. Instead, it found that the pre-arrest search was legal as a search incident to arrest because the justification for such an intrusion [i.e., a search incident to arrest conducted in the normal sequence] is the probable cause to believe that the individual has committed a crime and the need for immediate action to prevent the use of weapons against the arresting officer or destruction of evidence of the crime, see Chimel v. California, supra, 395 U.S. at 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685; postponement of the further intrusion of arrest does not remove the -17- justification for the search and in no way prejudices the individual’s Fourth Amendment rights. Id. In taking that position, the Second Circuit adopted the analysis previously developed in People v. Simon, 45 Cal. 2d 645, 648, 290 P.2d 531, 533 (1955). In that California case, the court stated [I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested and the place where he is arrested, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. … [T]he important considerations are whether the officer had reasonable cause before the search to make an arrest and whether the search and any seizures incident thereto were or were not more extensive than would reasonably be justified as incident to an arrest. United States v. Skinner is also instructive. In Skinner, the police observed Skinner and another man sitting at a hotel lunch counter. The police had probable cause to believe that Skinner had committed a robbery. The officers approached Skinner and, after he presented them with identification, one of the officers patted Skinner’s front pocket and recovered a handful of bullets. When the police realized he was also carrying a gun, they arrested him. The court in Skinner declined to justify the pre-arrest search on the grounds that Skinner’s “liberty had been effectively restrained” prior to the search. Skinner, 412 F.2d at 103. Instead, upholding the search as incident to Skinner’s later arrest, the Eight Circuit adopted the same rule as Riggs: “where the government sustains its burden of proving that a police officer had -18- probable cause for arresting a suspect for a felony and where it is clear that evidence seized in a contemporaneous search of the suspect's person was in no way necessary to establish probable cause, the search is incidental to the arrest.” Skinner, 412 F.2d at 103. In other words, the court held, a “search is valid whether it took place moments before or moments after the arresting officer took the suspect into actual custody or announced his intention of so doing.” Id. In short, Skinner and Riggs both reflect that the justification for a pre-arrest incident search of a suspect rests on the same constitutional underpinnings that justify the intrusions attending the post-arrest incident search: If the intrusion caused by an arrest is properly based on probable cause, a citizen cannot complain about the lesser intrusion of a search that closely accompanies it. It is the arrest itself that constitutes the major intrusion on an individual’s privacy, and “the encroachment caused by a contemporaneous search of the arrestee and his possessions at hand is in reality de minimis.” People v. De Santis, 46 N.Y.2d 82, 87 (1978), cert. den. 443 U.S. 912 (1979); People v. Hall, 10 N.Y.3d 303, 313, cert. den. 555 U.S. 938 (2008). The search incident, therefore, “requires no additional justification.” People v. Weintraub, 35 N.Y.2d at 354. By the same token, a citizen cannot complain of a pre-arrest search conducted moments before the formal arrest. Changing the order imposes no additional interference with a suspect’s rights, and therefore it requires no additional justification. As the Seventh Circuit succinctly put it, “[t]o hold differently would be to allow a technical formality of time to control when there has been no real -19- interference with the substantive rights of a defendant.” Holt v. Simpson, 340 F.2d 853, 856 (7th Cir. 1965); see also United States v. Jenkins, 496 F.2d 57, 73 (2d Cir. 1974) (any other rule “would, without rational basis, exalt form over substance”), cert. den. 420 U.S. 925 (1975). It would also punish officers who exercise restraint in the use of force, motivating them to arrest all suspects as soon as probable cause manifests, lest their hesitation results in the loss of evidence. The Evans decision and its concern that arrests not be delayed indefinitely follows naturally from the rationale permitting contemporaneous pre-arrest searches expressed in Riggs and Skinner. Without a “unity of time” requirement, Evans, 43 N.Y. 2d at 166, a pre-arrest search would allow greater interference with a suspect’s rights than flows from a search immediately following the arrest, since the suspect could remain exposed to whatever “intrusions the police deem appropriate for however long they allow him to remain at large.” Id. at 165. Indeed, Evans’s various formulations of its rule, that the legal pre-arrest incident search could be understood as consisting of a “single res gestae,” “one event,” and a “single transaction,” all echo the idea that a pre-arrest search is acceptable because it does not involve an intrusion significantly different from that of a search immediately following an arrest. A search taking place a month after a valid arrest, in fact, would suffer the same temporal infirmity. Three weeks after the Evans decision, in People v. Cruz, 43 N.Y.2d 786 (1977), this Court again assumed without comment that when the police have developed -20- probable cause they may conduct the search incident to arrest before making the arrest. In that case, the police approached Cruz’s car on suspicion of drug activity. When Cruz obeyed a police request that he discard a bottle he was holding, thereby revealing a glassine envelope in the palm of his hand, an officer patted one of Cruz’s pockets and recovered a bag containing heroin. The police then arrested Cruz. The Court again focused on the delay between the search and subsequent arrest. Citing Evans, the Court found that the seizure of Cruz’s bag was legal, explaining that “[r]emoval of the bag of heroin from the defendant’s pocket was reasonably contemporaneous with his arrest for possession of the heroin previously found in his hand.” Thus, the pre-arrest search in Cruz met all the requirements set forth in Evans: the police had probable cause before they searched Cruz and they formally arrested him moments after the search. Six years later, the Court again endorsed pre-arrest incident searches, in People v. Landy, 59 N.Y.2d 369 (1983). In that case, the police asked Landy, who closely matched the description of a person sought in a number of burglaries, to exit a car which had been seen near the crime locations. As he exited, the police spotted a switchblade in the vehicle. An officer then seized an object from Landy’s back pocket which he could not identify, and which upon examination turned out to be a wallet containing credit cards in someone else’s name. The police arrested Landy, who was convicted of possession of the switchblade, stolen credit cards, and burglary. Again citing Evans, this Court held that the warrantless pre-arrest search of Landy’s pocket -21- was proper, noting that “[t]he fact that the body search which produced the wallet occurred before rather than after the arrest is immaterial as long as the search was founded upon probable cause.” Landy, 59 N.Y.2d at 377. Thus, Evans, Cruz, and Landy all applied the same rule authorizing pre-arrest searches: the police may legally conduct a search incident to an arrest of a suspect before they arrest him if they had probable cause to arrest the suspect when they searched him, and they arrested him nearly simultaneously with the search. C. The Police Search In This Case Met the Standard For a Search Incident To Arrest Conducted Before the Formal Arrest. The police search of defendant in this case satisfied the requirements set forth in the Evans line of cases. First, as the suppression court correctly found, and as defendant himself concedes (Def.’s Br. at 6), Officer Merino had probable cause to arrest him when he searched defendant. The totality of the circumstances – the manner in which defendant was driving, his watery eyes, the smell of alcohol emanating from the car, the drinking cups seen in the middle of the console near the driver, and defendant’s odd responses to the police questions about whether he had been drinking – all made it “more probable than not,” People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981), that defendant was driving while intoxicated. There likewise is no dispute that the police developed this probable cause before they searched defendant. It was at this point that the police were entitled to arrest and search defendant, and this is not even in dispute. -22- Armed with sufficient basis to arrest defendant as soon as he got out of the car, Officer Merino did not, as the police did in Evans, allow defendant to go about his business for another month while the police sat on an expectation that they could arrest him at any time they chose. Instead, the search that Merino conducted was reasonably contemporaneous with defendant’s formal arrest that took place just seconds later, and defendant understandably does not argue otherwise (Def.’s Br. at 12). Indeed, defendant was placed in handcuffs immediately after Merino found the knife (A23-24; A158). What really irks defendant is that Merino candidly admitted that he had not yet decided to arrest defendant at the time he conducted this search. But as both the suppression court and the Appellate Division noted, it is of no consequence that when Merino asked defendant to step out of the car, “he did not at that time intend to arrest him,” and that Merino decided to arrest defendant “because [he] ultimately found the switchblade” (A75; A157). Reid, 104 A.D.3d 161. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” People v. Robinson, 97 N.Y.2d at 348, quoting Whren v. United States, 517 U.S. 806, 813 (1996). Search and seizure jurisprudence looks instead to whether “objective circumstances” show that an officer’s conduct was legal. Id. at 369. Here, the circumstances provided more than ample probable cause to believe that defendant was driving while under the influence. Thus, the arrest was authorized, and the search that took place literally seconds before it was also authorized as a search incident to -23- that arrest. Officer Merino’s subjective view of what he was doing and what he intended to do did not invalidate that lawful conduct. Whren v. United States, 517 U.S. at 811. And of course this objective rule makes intuitive sense, because the impact of Merino’s search and arrest upon defendant’s liberty would not depend on Merino’s subjective evaluation of the significance of his conduct. Accordingly, this Court was exactly right when it explained that “basing the constitutional validity of searches or seizures on judicial determinations of the subjective motivation of police officers” would be “difficult[ ], if not futil[e].” Robinson, 97 N.Y.2d at 350. Both state and federal constitutional provisions fix reasonableness as the prerequisite for searches and seizures, thus mandating the formulation of objective rules to provide, when possible, “bright line” guidance to law enforcement personnel, and to promote predictability and precision in judicial review of search and seizure cases. See Pennsylvania v. Mimms, 434 U.S. at 107; Terry v. Ohio, 392 U.S. at 19; People v. Batista, 88 N.Y.2d at 653. Subjective tests frustrate these goals because they would require courts to assess a host of ill-defined variables with unpredictable and arbitrary results. “[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, 496 U.S. 128, 138, (1990); Whren, 517 U.S. at 813. The difficulties in relying on an officer’s state of mind in the Fourth Amendment context are readily apparent. The intentions or motivations of an officer conducting an arrest or a search might be half- -24- formed, or inchoate; he might even have several intentions, the relative pertinence of which may not be clear. If several officers participate in an arrest, the individual police officers might harbor different intentions, giving rise to petty squabbling about which officer’s intentions should control the legality of the stop. Defendant tries to sidestep these concerns by arguing that Merino’s statement that he had no intention of arresting defendant was not a “subjective assessment of his authority to act,” but instead a “factual” “description of what he was doing at the time.” See Def.’s Br. 36-37 at fn. 7. But that simply begs the question: Merino’s own assessment of what he intended to do would reflect Merino’s subjective view, and it would have nothing to do with the degree of intrusion his conduct imposed on defendant’s liberty. See Whren, 517 U.S. at 814 (rejecting a standard “framed in empirical terms” but “plainly and indisputably driven by subjective considerations”). Nor should courts be beholden to a police officer’s assessment of whether his conduct, or his intended conduct, would satisfy the legal definition of a formal arrest (or of whatever particular lesser degree of physical restraint that defendant suggests should be required). Indeed, if courts were so constrained, identical police conduct could lead to suppression in one case and denial of suppression in another simply because one officer thought he had effected an arrest and the other did not. Equally meritless is defendant’s suggestion that Merino’s state of mind should be relevant because “[m]any areas of search and seizure law permit inquiry into the purpose of an officer’s actions in the course of assessing the reasonableness of a -25- search: prime examples include the attenuation doctrine, inventory searches, and administrative searches” (Def.’s Br. at 37-38). Whren considered and dismissed this objection, since “only an undiscerning reader would regard [inventory and administrative] cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” 517 U.S. at 811. Defendant’s comparison to the consideration of the subjective motives of the police in attenuation analysis is similarly inapt, because attenuation analysis presupposes a lack of probable cause to arrest in the first place, and governs the inquiry into whether the police thereafter “exploit[ed]” that initial illegality. See Brown v. Illinois, 422 U.S. 590, 604 (1975) (“the purpose and flagrancy of the official misconduct” is relevant “in determining whether the confession is obtained by exploitation of an illegal arrest”). Defendant’s reliance on People v. Erwin, 42 N.Y.2d 1064, 1065 (1977) as authority for folding Merino’s intentions into the reasonableness inquiry (Def.’s Br. at 38, fn.8) is misplaced. Defendant is right that Erwin referred in passing to an officer’s testimony that he did not intend to issue a summons to Erwin during the car stop that led to a drug seizure, but Erwin predated both Whren and People v. Robinson, and thus the reference is not remarkable. Certainly this Court’s marshaling of some facts in Erwin cannot suffice to create a subjective rule that later cases from this Court and the United States Supreme Court have expressly eschewed. In any event, the Court had already noted in Erwin that there was no arrest associated with the search, and -26- that the officer’s testimony was not even “worthy of belief.” Erwin, 42 N.Y.2d at 1065. In a similar vein, defendant’s argument places undue significance on Officer Merino’s declaration that his discovery of the knife provided the impetus for arresting defendant. An officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Because the probable cause standard is objective, an arrest is valid so long as the police have probable cause to believe that the suspect committed any criminal offense, regardless of their subjective intent or stated reason for the arrest. Any other rule “makes the lawfulness of an arrest turn upon the motivation of the arresting officer – eliminating, as validating probable cause, facts that played no part in the officer’s expressed subjective reason for making the arrest.” Id.; see also Robinson, 97 N.Y.2d at 349; accord People v. McCorkle, 111 A.D.3d 557, 558 (1st Dept. 2013); People v. Hampton, 44 A.D.3d 1071 (2d Dept. 2007); see also Ackerson v. City of White Plains, 702 F.3d 15, 20 (2d Cir. 2012) (probable cause “does not require an awareness of a particular crime, but only that some crime may have been committed”); Wallace v. City of Albany, 283 A.D.2d 872, 873 (3d Dept. 2001). In sum, the search that Officer Merino conducted of defendant’s pocket was a legal search incident to arrest, even though it occurred seconds before his formal arrest. It was legal in that it met the Evans requirements: there was probable cause to -27- arrest defendant before the search, and the search and arrest were nearly contemporaneous. Changing the usual order of the search and the arrest by doing the search first, where the police were already authorized to do both, caused no interference with defendant’s rights beyond those that would have resulted from a search immediately following an arrest. D. In Light of the Eminent Reasonableness of Officer Merino’s Conduct As Discussed Above, Defendant’s Arguments for Suppression Must Be Rejected. Defendant argues that both the suppression court and the Appellate Division upheld his pre-arrest search on the basis that no more was needed to justify the search incident to arrest in this case than pre-existing probable cause to arrest – the rationale which this Court in Evans specifically rejected. He also argues that the search failed to satisfy what he views as the correct standard: that before any search occurs the police must place a suspect under physical restraint or custody with the intent of effecting the formal arrest they actually perform. Neither claim survives scrutiny. Defendant has completely misconstrued the lower courts’ decisions, and the search incident to arrest standard he advocates has no basis in the law. 1. Neither the trial court nor the Appellate Division applied the wrong standard when they upheld defendant’s pre-arrest search. As defendant correctly points out, in Evans this Court expressly rejected the notion that the police may justify a search incident to a suspect’s arrest solely on the grounds that they have probable cause to arrest him, without regard to whether or when they actually arrest him. “Unless and until a person is arrested, a full body -28- search without a warrant or exceptional circumstances is constitutionally unreasonable.” Evans, 43 N.Y.2d at 165. Thus, in addition to having probable cause, the Court emphasized, a search incident to arrest requires also that “the arrest and search occur contemporaneously.” Id. at 166. According to defendant, the suppression court adopted and applied the very standard that Evans rejected, namely, that a pre-arrest search could be justified simply as “incident to probable cause” (Def.’s Br. at 18, fn. 2; 42). This is evident, he claims, from the court’s statement that defendant “could have been arrested, making the his actions lawful. So I find that the recovery – His arrest, the recovery of the knife was pursuant to a valid arrest” (A162). Defendant’s understanding of the court’s ruling is wrong. As the parties’ arguments after the suppression hearing make clear, probable cause was in dispute, but the contemporaneity of the search and arrest were not at issue. Thus, by holding that probable cause was a necessary condition for upholding the search said nothing about whether probable cause alone would have been sufficient. Specifically, defendant had moved to suppress partly on the ground that the police lacked probable cause to arrest him. The People noted that probable cause manifested before the search, but argued that the search was merely a protective frisk that needed to be justified by reasonable suspicion and a fear for his safety (A132, A145). Defendant argued that a frisk was not justified because Merino did not reasonably fear he was in danger (A118). Neither defendant’s attorney nor the -29- prosecutor addressed the question whether the knife was the fruit of a search incident to a lawful arrest. The suppression court rejected the People’s argument that the search could be justified on the basis of Merino’s concern for his safety (A161). It therefore concluded that the search “can only be justified if the officer had probable cause to arrest the defendant at that time,” thereby rendering the seizure of the knife permissible “pursuant to a valid arrest” (A161-62). It is not surprising that the court did not articulate the additional Evans requirement that the arrest must take place contemporaneously with the search. After all, there was never any dispute below, nor is there any dispute on appeal, that a formal arrest took place and that it was relatively contemporaneous with the search. Since those facts were never in controversy, there was no reason for the court to discuss them in its analysis. The mere fact that the court did not expressly address an issue – which no one raised and which could not reasonably have been disputed – does not mean that the court based its decision on a misunderstanding of the law. To reach its conclusion, the court simply resolved the disputed question of probable cause. Finding that the existence of probable cause was necessary to uphold the search cannot, on this record, be construed as a finding that the mere existence of probable cause alone was sufficient. Defendant offers a similarly strained interpretation of the Appellate Division’s holding that Merino’s “search of defendant was permissible because at the time of the search probable cause existed to arrest defendant for driving while intoxicated” -30- (Def.’s Br. at 18, quoting Reid, 104 A.D.3d at 63). On defendant’s view, this holding indicates that the Appellate Division adopted the “search incident to probable cause” standard rejected in Evans. The Appellate Division did no such thing. As the Appellate Division noted in its decision, defendant had argued that the officer “lacked the requisite predicate” for his conduct because “he had not intended to arrest [defendant] before discovering the knife” 104 A.D.3d at 59. In other words, defendant had asked the court to find that because Officer Merino personally did not expect to make the arrest until after he discovered the fruits of the search, he was not authorized to make the arrest. The court’s holding that the search was permissible “because at the time of the search probable cause existed to arrest defendant for driving while intoxicated” resolved the issue presented. Just like the trial court, the Appellate Division addressed only the probable cause component of the search incident to arrest because the existence and timing of the subsequent arrest were not at issue. Indeed, defendant’s suggestion that the Appellate Division purported to approve the search as incident to probable cause as opposed to an arrest is impossible to square with the fact that the court not only cited Evans, but discussed and distinguished it. See Reid, 104 A.D.3d at 62. 2. The validity of a pre-arrest search incident to arrest does not turn on the particular degree of physical restraint in effect at the time of the search or the intent of the officer to make an arrest. Defendant concedes that a valid search incident to arrest may occur before a suspect’s formal arrest (Def.’s Br. at 28). However, defendant contends that such pre- -31- arrest searches “for purposes of constitutional justification” require some other sort of arrest before the search. According to defendant, it is “an “indispensable component” that the preceding arrest be a “custodial arrest,” one where “the suspect ha[s] been physically restrained and in that manner had his freedom of movement restrained” (Def.’s Br. at 29). As an additional final condition, defendant argues that the restraint must be undertaken “with the intent and in the process of effecting a formal arrest” (Def.’s Br. at 30). Defendant’s elaborate scheme for evaluating pre- arrest searches is plainly tailored to invalidate his own search, and it is completely misguided. To begin, there is no valid reason under Fourth Amendment jurisprudence to require the police to place an individual under any particular degree of restraint before they can perform a search incident to an arrest that they are already authorized to make. As already discussed, a search incident to arrest is proper because the intrusion upon a suspect’s liberty imposed by a search is less than the intrusion of the valid arrest itself, and there is no dispute that probable cause for that arrest existed before the search took place. A suspect who may properly be arrested and searched is in no worse position, and his constitutional rights no less respected, where the police carry out the search without having yet subjected him to sufficient physical restraint to assure him that he has already been arrested as well. There are also practical considerations militating against defendant’s rule. In United States v. Skinner, supra, the Eighth Circuit expressly declined to ground the -32- legality of a pre-arrest search on whether a defendant’s “liberty had been effectively restrained at an earlier time.” Skinner, 412 F.2d at 103. The federal court went on to explain why the bright-line rule it adopted – a pre-arrest incident search is legal if there is pre-existing probable cause to arrest and the search is contemporaneous with the arrest – is the better approach. This rule “provides a non-technical standard for police to follow” and it permits courts to determine whether a search is incident to a valid arrest “by objective standards.” Such a rule also “relieves the courts in the proper case of the difficult task of determining the moment at which an arrest takes place, and the even more difficult task of determining the moment at which a police officer intended to make an arrest.” Id. at 103-04. All of this reasoning confirms the wisdom of Evans that a search incident to arrest is permissible so long as an arrest was authorized and the search and the arrest are contemporaneous. Finally, defendant’s rule could cut against a suspect’s interests. While a legal pre-arrest search does not place a suspect in an objectively worse position than he would be in had the police taken the trouble to arrest him sooner, it might actually put him in a better position. In People v. Simon, 45 Cal. 2d at 648, the Supreme Court of California observed that “if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested.” Mandating that the police must step up their restraint on a suspect’s liberty to the earliest authorized moment or else risk invalidating an otherwise valid search would eliminate that potential benefit. Not -33- surprisingly, defendant does not suggest any benefits that the pre-arrest rule he is promoting would have secured him, or how the search improperly prejudiced him. In advocating for his rule, in fact, defendant offers no constitutional arguments in favor of a pre-arrest custodial component. Instead, he marshals two arguments against a rule without it. Neither argument is convincing. Defendant first contends that “the constitutionality of [non-custodial pre-arrest searches] would be indeterminate at the time of the search and would rest on later events – running afoul of the well-established rule that the constitutionality of a search must be assessed ‘at its inception’” (Def.’s Br. 27). Allowing such a pre-arrest search, he claims, would allow an illegal search to be “cleansed by a subsequent arrest.” Id. Defendant’s argument is without substance. The constitutionality of a pre-arrest incident search derives from the existence of probable cause to arrest, and such probable cause must exist not only before the arrest, but also before the search. Thus, the constitutionality of the search is not “indeterminate” at the time of the search and neither does it “rest on later events.” To the extent that defendant is suggesting that the fruits of the search could improperly provide the probable cause for the subsequent arrest it is incident to, he is also mistaken. “It is axiomatic” that the fruits of the search preceding the arrest cannot supply the predicate “necessary to support probable cause to arrest.” Rawlings v. Kentucky, 448 U.S. 98, 111, fn.6 (1980); Sibron v. New York, 392 U.S. 40, 42 (1968); see also Reid, 104 A.D.2d at 61- 62. -34- Defendant’s second constitutional argument for the inadequacy of a simple contemporaneous pre-arrest rule is that it permits “unconstitutional exploratory searches” or “fishing expeditions” (Def.’s Br. at 39). However, he limits that danger to searches improperly conducted pursuant to a “search incident to probable cause” rationale, where the probable cause for a “minor offense has arisen” and the arresting officer “does not even intend to arrest the suspect.” Id. This argument also need not detain the Court. As already demonstrated, the lower courts in this case never adopted the invalid “search incident to probable cause” rule that defendant has extracted from their respective holdings, and it is not in dispute that in his case the search followed probable cause for drunk driving, and not a “minor offense.” And since defendant’s objection to “exploratory searches” and “fishing expeditions” relies on considerations of what motivates the police, it presents no constitutional concerns: as noted, ulterior motives do not invalidate police conduct that is objectively justifiable on the basis of probable cause. Robinson, 97 N.Y.2d at 355. Although he lacks any constitutional or practical basis for requiring that all pre- arrest searches must occur after the police have placed a suspect under custodial arrest, defendant maintains that state and federal case law imposes just such a requirement. A review of those cases yields no positive results for him either. For example, defendant argues that Evans itself imposed a “custodial restraint” requirement. But it is plain that defendant has misread Evans. As noted, Evans explained in dictum that “[i]t may be said that the search and arrest must constitute a -35- single res gestae.” 43 N.Y.2d at 166. In the course of developing this view, Evans continued The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event. As Justice Warren noted in Peters v. New York, decided with Sibron v. New York (392 U.S. 40, 67 [1968]) although the formal arrest followed the search, “for purposes of constitutional justification”, the arrest was effected when the policeman took the burglar, Peters, into custody on the stairwell (emphasis added). At that point, the necessity of protecting the safety of the officer and preventing potential escape or destruction of evidence became a constitutionally cognizable concern, thereby legitimatizing the search. [citation omitted]. Id. Defendant concludes from this passage that all pre-arrest searches must follow some minimum degree of physical restraint. In fact, Evans was citing Peters as nothing more than an example of a search and arrest that involved a “single res gestae,” or “one event.” After all, in the very next paragraph of the court’s decision, Evans cited with approval United States v. Riggs and United States v. Skinner as also demonstrating the requisite contemporaneousness. In Skinner, defendant was patted down as he sat at a lunch counter in a hotel. In Riggs, the defendant had her bag searched as she was questioned as part of a “security check” on a walkway to the plane she was about to board. In neither of those cases was the suspect subjected to a “custodial arrest” even close to the physical restraint presumably exercised in Peters, or beyond the restraint imposed on defendant when he was frisked. Thus, the fact -36- that under the unique circumstances of Peters there was physical restraint cannot be read as requiring physical restraint in every case. In advocating his “custodial arrest” template, defendant also heavily relies on People v. Diaz, 81 N.Y.2d 106 (1993) (Def.’s Br. at 5, 6, 20-22, 25, 26, 28, 30). In Diaz, an officer properly patted down Diaz’s pocket because he reasonably feared it contained a weapon. He felt no weapon, but instead what “appeared to be a bunch of vials.” Based on his suspicion that he had felt contraband, the officer put Diaz in a headlock, pulled him through the patrol car door, held him down, searched his pocket, and seized what turned out to be cocaine vials. Diaz was then arrested for possession of the drugs seized pursuant to that search. This Court reversed, reasoning that the police encounter should have stopped as soon as the officer knew that Diaz had no weapon in his pocket. The warrantless search based on the officer’s belief that he had felt drugs in Diaz’s pocket was unjustified because there is no “plain touch” exception to the warrant requirement. Diaz thus has no relevance here at all. Defendant nonetheless takes Diaz to support his position that a search incident to arrest requires a preceding custodial arrest based on two remarks the Court made in dicta, purportedly in response to the dissent’s view that the search was permissible as incident to the arrest: “It is clear that the search did not come within the exception to the warrant requirement for searches incident to an arrest; defendant was arrested after the search,” Diaz, 81 N.Y.2d at 110, and, in the attached footnote, “the hearing court made no finding that defendant was restrained prior to or contemporaneous -37- with the search of his pocket.” Id. at fn.1 (see Def.’s Br. at 20-21, 30). But defendant quotes the footnote incompletely, omitting the first sentence: “There is no finding either at the hearing court or at the Appellate Division that this was a search incident to arrest.” 81 N.Y.2d at 110. Thus, this Court was merely pointing out that the parties and the lower courts had not interpreted the issue as being one of search incident to arrest. And of course, there was far more relevance to the timing of the arrest in Diaz than here, because the basis for Diaz’s arrest was his possession of the very contraband that was seized from him during the search claimed to be incident to the arrest. Naturally, an arrest cannot be justified by the fruits of the search incident to itself. None of the other state or federal decisions which defendant also cites imposed his “custodial restraint” requirement on searches incident to arrest that precede the formal arrest. Indeed, many do not even concern pre-arrest searches. Defendant repeatedly invokes Erwin, 42 N.Y.2d 1064, as supporting his pre- arrest rule (Def.’s Br. at 5, 6, 18-19, 22, 25, 26, 28, 32, 38). But Erwin is not a pre- arrest case at all. In that case, the police officer testified that he had stopped Erwin’s car for passing a red light and was in the process of letting him go with just a warning. However, according to the officer, Erwin suddenly “pulled out several packets of drugs and hurled them into the air” when asked to show his registration during the car-stop, thereby necessitating the arrest. The suppression court found this scenario “really incredible” and the officer “not worthy of belief,” but it nonetheless denied -38- suppression on the ground that the police were entitled to arrest and search Erwin incident to arrest. This Court found the search improper as a classic search incident to arrest because, whether or not “there might have been cause to effectuate an arrest for a traffic infraction, no such arrest was made.” 42 N.Y.2d at 1065. There is no indication in the Erwin decision that any party or the courts recognized a distinction between a pre-arrest and a post-arrest search incident to arrest. That is not surprising, because without some indication of danger – at least under the law at that time – the police could not legally search Erwin at any time incident to his arrest for a minor traffic infraction. See People v. Marsh, 20 N.Y.2d 98, 100-101(1967) (the police are not authorized to conduct a search incident to an arrest for a minor traffic infraction unless the officer has reason to fear an assault or has probable cause for believing that the driver committed a crime); see People v. Copeland, 39 N.Y.2d 986 (1976); People v. Troiano, 35 N.Y.2d 479 (1974). Erwin’s failure to place any significance on the order of the search and arrest also explains why Evans, which confronted that question just five weeks after Erwin, did not even cite it.4 4 Defendant claims that “numerous Appellate Division decisions have followed Erwin, Evans and Diaz in holding that an arrest must precede a search incident,” see Def.’s Br. at 28, fn.1. But four of defendant’s cases plainly did not turn on the distinction between pre-arrest and post-arrest searches. Instead, each struck down a search for some other reason, such as the lack of probable cause to arrest for a sufficiently serious crime to support a search incident, or a search more extensive than a search incident. See People v. Kalikow, 90 A.D.3d 1558 (4th Dept. 2011) (Kalikow was issued a desk appearance ticket for an open container violation, but was searched and then arrested for possession of the fruits of that search); People v. Driscoll, 101 A.D.3d 1466 (3d Dept. 2012) (Driscoll was stopped for (Continued…) -39- Defendant gets no mileage from Rawlings v. Kentucky, 448 U.S. 98 (1980), from which he also tries to squeeze a custodial arrest requirement (Def.’s Br. at 29). In Rawlings, Rawlings and other visitors were illegally “detained” at a house while the police waited for a warrant to search the house for drugs. Rawlings, 448 U.S. at 107. When the police executed the warrant, however, Rawlings claimed ownership of drugs recovered from another visitor’s purse. The police then searched Rawlings and recovered a knife and $4,500 in cash. At that point, the police arrested him. In declining to suppress the money and the knife, the Supreme Court stated that “[w]here the formal arrest followed quickly on the heels of the challenged search of ______________________ (…Continued) playing music too loud, but was searched and then arrested for possession of fruits of that search); People v. Hoffman, 135 A.D.2d 299 (3d Dept. 1988) (suppressing because probable cause was lacking, and noting in dictum that “a search must follow the arrest, or at least be relatively contemporaneous therewith”); People v. Savona, 112 A.D.2d 328 (2d Dept. 1985) (Savona was stopped for driving too long in the passing lane; police saw a .32 caliber cartridge in the car and properly searched the interior of the car and all passengers to no avail for a gun, but police overstepped by then searching the trunk and arresting Savona for the fruits of that search). The fifth case that defendant catalogues is People v. Julien, 100 A.D.3d 925, 927 (2d Dept. 2012), in which the Second Department held that a “pre-arrest search” of the defendant’s back pocket “cannot be upheld as justifiably premised on probable cause, since the defendant had not been placed under arrest prior to the search.” Since Julien appears to be grounded in the mistaken view that a finding of probable cause requires a pre-existing arrest, it is clearly mistaken and should not be followed. Suffice it to say that in other cases, the Second Department has upheld pre-arrest searches without imposing defendant’s custodial arrest requirement. See People v. Sims, 289 A.D.2d 597 (2d Dept. 2001); People v. McLeod, 161 A.D.2d 671 (2d Dept. 1990). -40- petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.” Rawlings, 448 U.S. at 111. Rawlings’ detention at the scene of the execution of the warrant does not support defendant’s idea that pre-existing physical custody or restraint is “an indispensable component” of a pre-arrest search (Def.’s Br. at 29), for the simple reason that the Supreme Court acknowledged that Rawlings’ “detention” was illegal. Rawlings, 448 U.S. at 106 (“We can assume … that the police violated the Fourth and Fourteenth Amendments by detaining petitioner and his companions in the house while they obtained a search warrant for the premises”). Thus, unless the Supreme Court was upholding the search on the grounds that an illegal restraint can justify an ensuing search, the court must have based its comment on different grounds. Those grounds are not difficult to divine, since Rawlings cited two cases directly supporting its position, Bailey v. United States, 389 F.2d 305, 308 (D.C. Cir. 1967) and United States v. Brown, 463 F.2d 949, 950 (D.C. Cir. 1972). In both of those cases, the expressed basis for upholding the pre-arrest search was that at the time of the search, there was probable cause to arrest. Brown noted approvingly that the defendant’s arrest occurred immediately after the search. And since the defendant was arrested on a sidewalk by a single police officer who did not display any force, Brown joins Riggs and Skinner as yet another example of a legal pre-arrest search taking place without any preceding custodial restraint. -41- Defendant is also wrong that Knowles v. Iowa, 525 U.S. 113 (1998) requires that an arrest must take place prior to a search incident to it (Def.’s Br. at 26-27). In Knowles, an officer stopped the defendant for speeding. While Iowa law permitted an arrest for a traffic infraction, the officer opted instead to issue a citation and did so. Nonetheless, after issuing the citation, the officer searched the defendant’s car. The officer found drugs in the car and then arrested the defendant for possession of those drugs. The Supreme Court reasoned that this was not an appropriate search incident to arrest. However, the Court did not hold that the timing of the arrest was a fatal flaw. Instead, the Court noted that the overarching concerns of officer safety and preservation of evidence that justified searches incident to arrests were lessened in the situation of searches incident to mere citations. Cf. Marsh, 20 N.Y.2d at 100-101. Thus, where the officer had already given the citation and there was no conceivable way to obtain any more evidence of the speeding that had been the basis of the citation, a subsequent search of the car could not be performed “incident to arrest.” 525 U.S. at 116-118.. See 3 Wayne R. LaFave, Search and Seizure § 5.2(h), at 134 (4th ed. 2004) (“the ‘problem’ in [Knowles] may be perceived to be the fact that the officer tipped his hand on the citation versus arrest question before the search”). * * * In sum, it is well settled that when the police arrest a suspect, they may conduct a warrantless search of his person. As this Court has explained, the intrusion on a suspect caused by such a search is less than the intrusion of the arrest itself. Allowing -42- the police to conduct the search before the arrest imposes no greater intrusion than conducting it after the arrest, subject to two conditions: that the police have probable cause before the search, and that the search is relatively contemporaneous with the arrest. The incident search in this case comported with these principles. Acting with caution and restraint, the police officer waited until he had developed probable cause to stop defendant, searched him and then immediately placed him under arrest. The police officer’s conduct in this case was eminently reasonable, the search was authorized as incident to defendant’s arrest, and the fruit of that search should not be suppressed. CONCLUSION The judgment from which defendant appeals should be affirmed. Respectfully submitted, CYRUS R. VANCE District Attorney New York County By: VINCENT RIVELLESE RICHARD NAHAS Assistant District Attorneys Of Counsel ___________________________ Vincent Rivellese January 31, 2014