The People, Respondent,v.Graham Reid, Appellant.BriefN.Y.November 18, 2014New York County Indictment No. 717/2009 APL-2013-00155 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, —against— GRAHAM REID, Defendant-Appellant. BRIEF OF DEFENDANT-APPELLANT STEVEN BANKS THE LEGAL AID SOCIETY CRIMINAL APPEALS BUREAU 199 Water Street New York, New York 10038 Telephone: (212) 577-3300 Facsimile: (212) 509-8761 ANTONIO J. PEREZ-MARQUES MARC J. TOBAK GABRIEL JAIME DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4000 Facsimile: (212) 701-5800 Attorneys for Defendant-Appellant October 10, 2013 TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 2 JURISDICTION AND REVIEWABILITY .............................................................. 3 INTRODUCTION ..................................................................................................... 3 SUMMARY OF ARGUMENT ................................................................................. 5 STATEMENT OF FACTS ........................................................................................ 9 ARGUMENT ........................................................................................................... 16 POINT I. PROBABLE CAUSE TO ARREST DOES NOT SUFFICE TO JUSTIFY A WARRANTLESS SEARCH ........................................................... 16 POINT II. THE APPELLATE DIVISION’S RULE INVITES UNCONSTITUTIONAL EXPLORATORY SEARCHES. ................................. 39 POINT III. THE COURTS BELOW CONCLUSIVELY DETERMINED THAT MR. REID WAS NOT IN CUSTODY OR UNDER ARREST AT THE TIME OF THE WARRANTLESS SEARCH. ............................................ 43 CONCLUSION ........................................................................................................ 46 TABLE OF CASES AND AUTHORITIES PAGE CASES Arizona v. Gant, 556 U.S. 332 (2009) ............................................................................. 7, 16 Brown v. Illinois, 422 U.S. 590 (1975) ........................................................................... 37, 38 Chimel v. California, 395 U.S. 752 (1969) ................................................................................. 17 Cupp v. Murphy, 412 U.S. 291 (1973) .................................................................. 7, 16, 24, 41 Devenpeck v. Alford, 543 U.S. 146 (2004) ........................................................................... 34, 35 Ferguson v. City of Charleston, 532 U.S. 67 (2001) ................................................................................... 38 Katz v. United States, 389 U.S. 347 (1967) .............................................................................. 7, 16 Knowles v. Iowa, 525 U.S. 113 (1998) ........................................................................... passim New York v. Belton, 453 U.S. 454 (1981) .................................................................................. 22 People v. Allen, 73 N.Y.2d 378 (1989) ................................................................................ 30 People v. Belton, 55 N.Y.2d 49 (1982) .................................................................................. 17 ii People v. Blasich, 73 N.Y.2d 673 (1989) ................................................................................ 17 People v. Burr, 70 N.Y.2d 354 (1987) ........................................................................... 44-45 People v. Campbell, 87 N.Y.2d 855 (1995) ................................................................................ 45 People v. Chestnut, 51 N.Y.2d 14 (1980) .................................................................................. 31 People v. De Bour, 40 N.Y.2d 210 (1976) ................................................................................ 40 People v. Diaz, 81 N.Y.2d 106 (1993) ......................................................................... passim People v. Driscoll, 101 A.D.3d 1466 (3d Dep’t 2012) ............................................................ 28 People v. Edwards, 95 N.Y.2d 486 (2000) .................................................................................. 3 People v. Erwin, 42 N.Y.2d 1064 (1977) ....................................................................... passim People v. Evans, 43 N.Y.2d 160 (1977) ......................................................................... passim People v. Harris, 72 N.Y.2d 614 (1988) ........................................................................... 37-38 People v. Harrison, 57 N.Y.2d 470 (1982) ............................................................................... 45 People v. Hoffman, 135 A.D.2d 299 (3d Dep’t 1988) ............................................................. 29 iii People v. Jennings, 69 N.Y.2d 103 (1986) ................................................................................. 3 People v. Julien, 100 A.D.3d 925 (2d Dep’t 2012) ............................................................. 28 People v. Kalikow, 90 A.D.3d 1558 (4th Dep’t 2011) ............................................................. 29 People v. Knapp, 52 N.Y.2d 689 (1981) ................................................................................ 41 People v. Landy, 59 N.Y.2d 369 (1983) .......................................................................... 31, 32 People v. McRay, 51 N.Y.2d 594 (1980) ................................................................................ 44 People v. Martinez, 37 N.Y.2d 662 (1975) ................................................................................ 37 People v. Maldonado, 86 N.Y.2d 631, 635 (1995)........................................................................ 19 People v. Reid, 104 A.D.3d 58 (1st Dep’t 2013) ......................................................... passim People v. Robinson, 97 N.Y.2d 341 (2001) .......................................................... 8, 34, 35, 36, 38 People v. Rodriguez, 84 A.D.3d 500 (1st Dep’t 2011) ..................................................... 8, 34, 35 People v. Savona, 112 A.D.2d 328 (2d Dep’t 1985) .............................................................. 29 People v. St. Clair, 54 N.Y.2d 900 (1981) ................................................................................ 21 iv People v. William II, 98 N.Y.2d 93 (2002) .................................................................................. 27 Rawlings v. Kentucky, 448 U.S. 98 (1980) .................................................................................... 29 Sibron v. New York, 392 U.S. 40 (1968) .............................................................................. 28, 30 State v. Doran, 563 N.W.2d 620 (Iowa 1997) .............................................................. 23, 33 State v. Knowles, 569 N.W.2d 601 (Iowa 1997) .............................................................. 23, 33 Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................... 7, 16, 27, 40 United States v. Robinson, 414 U.S. 218 (1973) ........................................................................... 17, 24 United States v. Williams, 170 F. App’x 399 (6th Cir. 2006) .............................................................. 39 N.Y. Crim. Proc. Law § 470.05(2) ................................................................. 3 N.Y. State Const. Art. 1 § 12 ........................................................................ 16 PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted June 13, 2013, appeal is taken from an order of the Appellate Division, First Department, entered on January 3, 2013, affirming a judgment of the Supreme Court, New York County (Arlene D. Goldberg, J.), rendered March 4, 2010, as amended March 18, 2010, convicting Appellant Graham Reid of criminal possession of a weapon in the third degree and sentencing Mr. Reid to two to four years in prison. Timely application for leave to appeal was filed. On August 22, 2013, Steven Banks, Esq. of The Legal Aid Society was appointed as counsel to Appellant. 2 QUESTION PRESENTED 1. Absent an arrest, does the existence of probable cause to arrest suffice to justify a warrantless search? 3 JURISDICTION AND REVIEWABILITY This case presents questions of law, as it involves matters of rights protected by the Constitution of the State of New York and the United States Constitution, which were fully litigated below and are amenable to this Court’s review. The issues were fully preserved because the trial court “expressly decided the question raised on appeal” in denying Reid’s motion to suppress. N.Y. Crim. Proc. Law § 470.05(2); see also People v. Edwards, 95 N.Y.2d 486, 491 n.2 (2000); People v. Jennings, 69 N.Y.2d 103, 124 n.9 (1986). Appellant Reid timely appealed. INTRODUCTION Appellant, Graham Reid, was pulled over for traffic infractions. After an initial conversation with Appellant, the investigating officer asked Appellant to step out of the car for the purpose of continuing the investigation. The officer admitted that, at that time, he was not arresting Appellant, and had no fear for his safety. The officer nonetheless frisked Appellant and, upon feeling a “hard object” in Appellant’s jacket pocket, reached into Appellant’s pocket and pulled out the object. Recognizing the object as a switchblade knife, he arrested Appellant for possession of a weapon. A subsequent search incident to arrest at the police precinct uncovered packets of heroin, after which the Appellant made statements to the police. 4 At a combined Mapp/Huntley/Dunaway hearing on Appellant’s motion to suppress, the Supreme Court, New York County found that the officer’s search of Appellant was not a valid protective frisk because the officer had no reason to believe Appellant was armed or posed a threat to the officer’s safety. The Supreme Court further determined that Appellant was not in custody or under arrest at the time of the search, and credited the officer’s testimony that he had no intention of effecting an arrest at that time. Yet, the hearing court denied Appellant’s motion to suppress the knife, the evidence uncovered in the later search incident, and Appellant’s statements, on the ground that, at the time of the search, the arresting officer had probable cause to arrest Appellant for driving while intoxicated. The hearing court reasoned that because the arresting officer “could have” arrested Appellant, the initial roadside patdown and search were lawful as incident to that hypothetical arrest. Appellant entered a plea of guilty following denial of his motion to suppress, and timely appealed. The Appellate Division, First Department affirmed. The Appellate Division agreed with the Supreme Court’s findings that Appellant was not under arrest at the time of the search, but held that the search was lawful because at the time of the search the arresting officer had probable cause to arrest Mr. Reid for driving while intoxicated. 5 Mr. Reid applied for leave to appeal to this Court, which Chief Judge Lippman granted. SUMMARY OF ARGUMENT This case presents squarely the question of whether the existence of probable cause to arrest suffices to justify a warrantless search of a citizen who has not been arrested. Both courts below answered this question in the affirmative. The Appellate Division explained: “Because, like the hearing court, we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the resulting full search were admissible.” This ruling was in error and must be reversed. For more than thirty years, this Court has consistently held that the ability to effect a lawful arrest (i.e., probable cause) does not suffice to justify a warrantless search, and has consistently limited application of the search-incident-to-arrest doctrine to the context of actual arrests. People v. Diaz, 81 N.Y.2d 106 (1993); People v. Evans, 43 N.Y.2d 160 (1977); People v. Erwin, 42 N.Y.2d 1064 (1977). As this Court explained in Evans, “[t]o adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident . . . .” 43 N.Y.2d at 165. This Court again reaffirmed that principle in Diaz, rejecting the view of two dissenting judges who, like the Appellate Division here, reasoned that “if the police had 6 probable cause to arrest defendant before the search inside his pocket, the incident- to-arrest exception applies and the search is valid.” 81 N.Y.2d at 114 (Simons and Bellacosa, J.J., dissenting) (emphasis removed). This Court disagreed, explaining instead that “[i]t 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.” Id. at 109 (majority opinion). The United States Supreme Court has likewise considered and unanimously rejected the reasoning adopted by the Appellate Division below. Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the Iowa Supreme Court, like the Appellate Division here, had reasoned that, even where a subject had not been arrested, the existence of grounds for a lawful arrest justified a warrantless search. Id. at 115-16. The Supreme Court unanimously reversed, reaffirming that the justifications for searches incident to arrest arise from “the fact of the arrest,” not the “grounds for arrest,” and that, absent an actual arrest, the search-incident-to- arrest doctrine does not apply. Id. at 117-19. Moreover, the Appellate Division erred in reasoning that the subsequent arrest sufficed to bring a warrantless search within the search-incident-to-arrest doctrine, as long as probable cause arose prior to the search and the subsequent arrest promptly followed the search. In each of Erwin, Diaz, and Knowles, probable cause to arrest existed before the search and the subject was arrested 7 promptly following the search. Yet, in each case, the search was held unreasonable. Were the Appellate Division correct in its reasoning, each of those binding precedents would have had to be decided the other way. In this respect too, the rule applied by the Appellate Division is irreconcilable with the prior decisions of this Court and the United States Supreme Court. Without the benefit of the search incident to arrest exception, it is well- established that a warrantless search requires independent justification. Arizona v. Gant, 556 U.S. 332, 338 (2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967)); Diaz, 81 N.Y.2d at 109 (citing Katz, 389 U.S. at 357). To be sure, if exigent circumstances exist, a warrantless search prior to arrest may be reasonable, such as in the case of highly evanescent evidence or where a search for a weapon is prompted by an articulable fear for safety. See Cupp v. Murphy, 412 U.S. 291 (1973); Terry v. Ohio, 392 U.S. 1 (1968). Here, however, it is undisputed that no such independent justification or exigency existed. The officer conceded (and the hearing court held, without challenge on appeal) that he did not fear for his safety. As the hearing court correctly held, the search of Mr. Reid could thus be justified only if the search incident to arrest exception were found to apply. Because the search incident to arrest exception does not apply absent an actual arrest, and Mr. Reid had not been arrested, the warrantless search of Mr. Reid had no 8 constitutional justification at the time it was undertaken. The evidence recovered accordingly should have been suppressed. The Appellate Division further erred in relying on cases such as People v. Rodriguez, 84 A.D.3d 500 (1st Dep’t 2011) and People v. Robinson, 97 N.Y.2d 341 (2001), which hold only that the legality of an arrest depends solely on the existence of probable cause, and is not subject to secondary considerations such as whether the primary motivation of the officer was to search for evidence of another crime. Here the existence of probable cause to arrest is not disputed, and Mr. Reid is not arguing that the officer could not have arrested him due to some forbidden ulterior motive. The officer’s testimony that he had no intention of arresting Mr. Reid at the time of the search is relevant not to override the existence of probable cause (as the Appellate Division mistakenly assessed), but to confirm the undisputed fact that there had been no arrest at the time of the search. And because both the Appellate Division and the hearing court concluded that Mr. Reid was not under arrest at the time of the warrantless search, that mixed issue of fact and law is conclusively established and not before this Court for review. The question is thus only whether, absent an arrest, probable cause suffices to permit a warrantless search. No case relied upon by the Appellate Division has held that the existence of probable cause suffices to justify a warrantless search absent an actual arrest. The decisions of this Court are uniformly to the contrary. 9 This is an important case. The rule adopted by the Appellate Division would represent a dramatic expansion of the search incident to arrest doctrine, presents a significant risk of abuse, and would infringe impermissibly on citizens’ rights to be secure in their persons and free from unreasonable searches and seizures. It would allow police officers, once probable cause to arrest has arisen, a free option to undertake purely exploratory searches even for the most minor offenses. This Court in Evans expressly rejected the notion that the existence of probable cause to arrest gives police officers any such right. Because the Appellate Division erred in ruling that probable cause to arrest suffices to justify a warrantless search, the decision below should be reversed. STATEMENT OF FACTS On February 14, 2009, Appellant Graham Reid was driving home two acquaintances. (A. 22.)1 Officer Jacob Merino, an anticrime officer patrolling in plain clothes and in an unmarked car, observed Mr. Reid’s car crossing the “double solid yellow lines” into the lanes of oncoming traffic on 125th Street in Manhattan. (A. 21.) Officer Merino then decided to stop Mr. Reid’s car when Mr. Reid turned right onto 12th Avenue without using the turn signal. (A. 21-22.) 1 References preceded by “A.” are to pages in the Appendix. 10 A. The Stop Officer Merino activated his police lights, and Mr. Reid pulled his car over and stopped on the side of 12th Avenue. (A. 22.) Officer Merino left his cruiser and approached Mr. Reid’s car from the driver’s side. (Id.) Upon reaching Mr. Reid’s car, Officer Merino began speaking with Mr. Reid through the open driver’s-side window; Mr. Reid remained seated inside. (Id.) According to his testimony, Officer Merino observed that Mr. Reid’s “eyes were kind of watery” and he smelled an “alcoholic beverage from the car itself.” (A. 22, 74.) The officer asked Mr. Reid for his license and also asked several questions, including where Mr. Reid was coming from and where he was going. (A. 22, 36.) Officer Merino testified that he found Mr. Reid’s responses suspicious and thus asked Mr. Reid to step out of his car. (A. 23.) At the suppression hearing before the Supreme Court, Officer Merino testified that at the point he asked Mr. Reid to exit his car, he planned to continue to question Mr. Reid: THE COURT: And then there came a time you asked him to come out of the car? THE WITNESS: Yes. THE COURT: After this conversation and you making these observations? THE WITNESS: Yes, ma’am. 11 THE COURT: At that point, were you going to arrest him? THE WITNESS: No. THE COURT: You weren’t? THE WITNESS: No. (A. 74-75 (emphasis added).) As requested, Mr. Reid stepped out of his car. (A. 23.) B. The Search As Mr. Reid was exiting his car, Officer Merino asked Mr. Reid “if [Mr. Reid] ha[d] any weapons on him.” (A. 23.) Officer Merino did not identify any observations that prompted this question; instead, he explained that “I usually ask this question to everybody I stop.” (Id.) Mr. Reid responded that he did not have any weapons. (Id.) Officer Merino then decided to search Mr. Reid for weapons. (Id.) He gave Mr. Reid a “quick pat-down” and felt a “hard object” in Mr. Reid’s pocket. (Id.) He asked Mr. Reid what the object was; Mr. Reid remained silent. (Id.) Then, Officer Merino reached into Mr. Reid’s jacket pocket and pulled the object out. (A. 43.) After removing the object from Mr. Reid’s pocket, Officer Merino “recognized it to be a switchblade” as “soon as [he] saw it.” (Id. 23.) As a result, he decided to arrest Mr. Reid—for possession of the knife: THE COURT: So it’s only because you ultimately found the switchblade that you arrested him. 12 THE WITNESS: Yes, ma’am. (A. 75.) C. The Arrest At this point, Officer Merino placed Mr. Reid under arrest, handcuffed Mr. Reid, and called for a police car to transport Mr. Reid to the Precinct station. (A. 24.) Officer Merino also noticed that his partner had discovered a bottle of Hennessey in the car and that the passengers in Mr. Reid’s car appeared intoxicated. (A. 24, 34.) A subsequent search incident to arrest of Mr. Reid at the Precinct station uncovered two bags of heroin; Mr. Reid also made statements to the police regarding the heroin. (A. 24, 26.) Two officers tested Mr. Reid for alcohol using an intoxilyzer test; the test returned a reading of 0.0. (A. 25-26.) D. Suppression Hearing Before the Supreme Court, New York County Mr. Reid moved to suppress the knife discovered in the warrantless search, the heroin discovered in the resulting search at the Precinct station, and the subsequent statements Mr. Reid made concerning the heroin. (A. 114.) At a suppression hearing before Justice Arlene Goldberg of the Supreme Court, New York County, Officer Merino was the sole witness. Counsel for Mr. Reid argued that Officer Merino’s search of Mr. Reid for a weapon was unlawful because Officer Merino did not fear for his safety and had no basis to believe that Mr. Reid was armed. (A. 126-27.) Counsel pointed out 13 that Officer Merino had not testified that he observed anything in Mr. Reid’s behavior or in his appearance that suggested that he was armed. (Id.) Accordingly, counsel argued that Officer Merino’s search of Mr. Reid could not be justified as a protective frisk permitted under Terry v. Ohio. (Id.) In response, the prosecution argued that suppression should be denied because Officer Merino had reasonable suspicion of criminal activity, which permitted a search of Mr. Reid for a weapon. (A. 132.) The prosecution did not dispute that Mr. Reid had not been arrested at the time of the roadside search and acknowledged that Officer Merino did not intend to arrest Mr. Reid at the time of the search. (A. 145.) The prosecution did not argue that the search could be justified as a search incident to the subsequent arrest. Justice Goldberg denied Mr. Reid’s motion to suppress. First, she found that Mr. Reid was “not in custody” at the time Officer Merino stopped the car, questioned Mr. Reid, and asked Mr. Reid to exit the car. (A. 160.) Justice Goldberg also found that the arresting officer “had no reason to believe that [Mr. Reid] had a weapon.” (A. 161.) As the court noted: “There was no bulge. He did nothing to indicate that he was armed.” (Id.) Accordingly, the court held that “the question [about whether Mr. Reid was armed] as well as the frisk and ultimate search can only be justified if the officer had probable cause to arrest [Mr. Reid] at that time.” (Id.) Justice Goldberg held that Officer Merino’s observation of Mr. 14 Reid’s driving, cups in the center console, Mr. Reid’s admission that he had been drinking, and the odor of alcohol from the car gave the officer probable cause to arrest Mr. Reid for driving while intoxicated. (A. 161-62.) Because Officer Merino had probable cause to arrest Mr. Reid for DWI, Justice Goldberg concluded that “he could have arrested the defendant, making his actions lawful. So I find that the recovery—his arrest, the recovery of the knife was pursuant to a valid arrest. It could be justified as a search incident to arrest . . . .” (A. 162 (emphasis added).) E. Appeal to the Appellate Division, First Department Mr. Reid appealed his conviction to the Appellate Division, First Department, arguing that the Supreme Court erred in denying his motion to suppress. Mr. Reid argued on appeal that the ability to effect a lawful arrest (i.e., probable cause) did not justify a warrantless search absent an arrest. On January 3, 2013, the Appellate Division affirmed Justice Goldberg’s denial of Mr. Reid’s suppression motion, concluding that the “search of defendant was permissible because at the time of the search probable cause existed to arrest defendant for driving while intoxicated.” People v. Reid, 104 A.D.3d 58, 63 (1st Dep’t 2013). In reaching this conclusion, the Appellate Division upheld Justice Goldberg’s determination that “the information possessed by Officer Merino did not supply a reasonable basis for suspecting that the driver was armed and might be dangerous,” 15 and, therefore, the frisk for a knife could not be justified as a protective frisk. Id. Furthermore, the Appellate Division agreed with Justice Goldberg that Mr. Reid had not been arrested at the time of the search, as it noted that “the arrest [of Mr. Reid following the search] was not merely a formality that they happened to leave until after the search” and distinguished the “initial search” of Mr. Reid for a weapon from the “ensuing full search incident to arrest” that occurred at the Precinct station. Id. at 62-63. Nonetheless, the Appellate Division affirmed on the view that the search of Mr. Reid was lawful because Officer Merino had probable cause to arrest Mr. Reid for driving while intoxicated. Id. at 63. F. Proceedings Before the Court of Appeals On January 23, 2013, Mr. Reid filed a timely application for leave to appeal to this Court. This Court granted leave on June 13, 2013. 16 ARGUMENT POINT I. PROBABLE CAUSE TO ARREST DOES NOT SUFFICE TO JUSTIFY A WARRANTLESS SEARCH. A. This Court and the U.S. Supreme Court Have Each Held That Probable Cause to Arrest Does Not Suffice to Justify a Warrantless Search. Under Article 1, Section 12 of the New York State Constitution and the Fourth Amendment of the United States Constitution, warrantless searches are “per se unreasonable” unless justified by a judicially recognized exception. Arizona v. Gant, 556 U.S. 332, 338 (2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967)); People v. Diaz, 81 N.Y.2d 106, 109 (1993) (citing Katz, 389 U.S. at 357). The warrantless search of Mr. Reid was unconstitutional because it falls under no such recognized exception. On the one hand, certain exceptions authorize a limited search based on the existence of specific exigent circumstances in that particular case. See, e.g., Cupp v. Murphy, 412 U.S. 291, 296 (1973) (limited search justified by the “ready destructibility” of the evidence); Terry v. Ohio, 392 U.S. 1, 27 (1968) (authorizing frisks for weapons when circumstances provide a reasonable basis to believe that the suspect is armed or dangerous). Both the hearing court and the Appellate Division held that no such exigent circumstances existed here, and so, it is established that the search of Mr. Reid cannot be justified as a frisk for weapons nor as a search for evidence that was about to be destroyed. 17 On the other hand, another exception permits searches incident to a lawful arrest. Chimel v. California, 395 U.S. 752 (1969). This exception is justified by the danger that an arrestee might access a weapon or might conceal or destroy evidence. Knowles v. Iowa, 525 U.S. 113, 116-17 (1998); People v. Blasich, 73 N.Y.2d 673, 678 (1989); People v. Belton, 55 N.Y.2d 49, 52-53 (1982). While these two dangers justify the exception, the U.S. Supreme Court has declared that such searches following an arrest are reasonable under the Fourth Amendment without requiring a specific showing that either of the potential dangers exists. Knowles v. Iowa, 525 U.S. at 118; United States v. Robinson, 414 U.S. 218, 235 (1973). Yet, while a search after an arrest is reasonable, this Court has consistently refused to extend this rule to situations where the subject of the search is not under arrest, even if probable cause exists. Diaz, 81 N.Y.2d at 109; People v. Evans, 43 N.Y.2d 160, 164-65 (1977); People v. Erwin, 42 N.Y.2d 1064, 1065-66 (1977). The U.S. Supreme Court has likewise considered and unanimously rejected the rule applied by the Appellate Division. Knowles, 525 U.S. at 117-19. Under these precedents, the warrantless search of Mr. Reid cannot be justified. The Appellate Division’s holding is directly contrary to these controlling precedents, as it clearly adopts, no fewer than three times, the very rule that this Court and the Supreme Court have rejected, that the existence of probable cause to arrest alone justifies a warrantless search: 18 • “Because . . . we find that at the time [of the search] the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible,” People v. Reid, 104 A.D.3d 58, 59 (1st Dep’t 2013); • “[W]here the facts create probable cause to arrest, a search must be permissible,” id. at 61; • “[The arresting officer’s] search of defendant was permissible because at the time of the search probable cause existed to arrest defendant for driving while intoxicated,” id. at 63.2 This ruling is error and must be reversed. Because it is undisputed that Mr. Reid was not under arrest at the time he was searched, this Court’s controlling precedents dictate that the search of Mr. Reid was unreasonable. Indeed, comparison to the facts of People v. Erwin, 42 N.Y.2d 1064—which, like those of Knowles v. Iowa, 525 U.S. 113, bear a striking similarity to the facts here—compels the conclusion that the Appellate Division erred. 2 The hearing court also founded its ruling on the existence of probable cause to arrest Mr. Reid: “[H]e 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. . . .” (A. 162.) 19 In Erwin, an officer stopped Erwin after observing Erwin’s car drive through a red light. 42 N.Y.2d at 1065. The officer then searched Erwin, discovered that Erwin was carrying drugs, and promptly arrested him. Id. at 1065-66. This Court unanimously concluded that the search of Erwin was unconstitutional even though probable cause existed to arrest Erwin for running the red light and even though an arrest promptly followed, for the simple reason that Erwin had not been arrested at the time of the search: Although there may have been reasonable cause[3] to effectuate an arrest for a traffic infraction, no such arrest was made and indeed, Officer Bennett testified that he did not even intend to issue a summons, but was merely “going to give him a warning”. There being no arrest the subsequent search of defendant’s person and his automobile can be justified only if independent reasonable cause existed. Id. at 1065 (emphasis added). Notably, the Court pointed to the fact that the officer did not intend to arrest Erwin at the time of the search as additional evidence that no arrest had occurred. Just one month later, in People v. Evans, 43 N.Y.2d 160, this Court again ruled that probable cause to arrest does not suffice to justify a warrantless search. In that case, shortly after an undercover narcotics agent purchased $30 in heroin 3 “Reasonable cause,” as used in Erwin, is equivalent to “probable cause” to arrest. E.g., People v. Maldonado, 86 N.Y.2d 631, 635 (1995) (“A police officer may arrest for an offense without a warrant if he has reasonable cause to believe that a person has committed that offense in his presence. Reasonable cause means probable cause.” (internal citations omitted)). 20 from Evans, a uniformed officer searched Evans and found $30 in cash. Id. at 162- 63. Evans was arrested a month after the heroin sale and search. Id. at 164. The trial court denied Evans’s objection to admission of the $30 as fruit of an illegal search. Id. at 163-64. The Appellate Division, Fourth Department affirmed on the ground “that the street search of the defendant was justified by the existence of probable cause to seize and search for the possession of narcotics.” Id. at 164. This Court reversed. The Evans Court expressly rejected the notion that probable cause to arrest—the fact that the officer “could have arrested the defendant”—justified a warrantless search: To adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident, otherwise once probable cause existed a potential arrestee would be fair game for any intrusions the police deem appropriate for however long they allow him to remain at large . . . . Unless and until a person is arrested, a full body search without a warrant or exceptional circumstances is constitutionally unreasonable. Id. at 165 (emphasis added). This Court yet again held that a search incident to arrest requires a prior arrest in People v. Diaz, 81 N.Y.2d 106. There, police observed Diaz in the center of groups of people “passing objects from hand to hand” on the sidewalk at 4:30 a.m. Id. at 108. After calling Diaz to their patrol car, officers noticed a bulge in Diaz’s pocket, grabbed at his pocket, and felt what “appeared to be a bunch of 21 vials” in his pocket. Id. The officer then reached into Diaz’s pocket, and, as Diaz was trying to flee, retrieved 18 vials of crack cocaine. Id. Diaz was then arrested. Id. This Court concluded that the search of Diaz was unconstitutional. The dissenting members of the Diaz Court—like the Appellate Division here—argued that the search of Diaz before he was arrested was a lawful search incident to arrest because probable cause to arrest Diaz existed at the time of the search: “[I]f the police had probable cause to arrest defendant before the search . . . the incident-to-arrest exception applies and the search is valid.” Id. at 113-14 (Simons and Bellacosa, J.J., dissenting) (emphasis removed). The Diaz majority expressly rejected this rule, concluding instead that “[i]t 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.” Id. at 109 (majority opinion). The result in People v. St. Clair, 54 N.Y.2d 900 (1981), aff’g for reasons stated at 80 A.D.2d 691 (3d Dep’t 1981), further confirms the rule of Erwin, Evans, and Diaz, and is inconsistent with the rule that the Appellate Division adopted here. In St. Clair, this Court ruled that a search for weapons was unconstitutional because of the absence of evidence that the defendant was armed or dangerous. 54 N.Y.2d at 901. Because the facts of St. Clair demonstrate that probable cause to arrest existed, if probable cause to arrest were sufficient to 22 justify a warrantless search, the St. Clair Court would have held the search reasonable. The Appellate Division’s ruling is also contrary to controlling U.S. Supreme Court precedent, which, like Erwin, Evans, and Diaz, rejects the argument that probable cause to arrest suffices to justify a warrantless search in the absence of an actual arrest. In Knowles v. Iowa, the U.S. Supreme Court reversed the Iowa Supreme Court’s ruling that probable cause to arrest justifies a warrantless search. 525 U.S. at 119. Again, the facts are highly analogous to the instant case. There, Knowles was stopped for speeding. Id. at 114. Pursuant to applicable Iowa law, the officer could have arrested Knowles or, instead, could have issued him a citation; it was unchallenged on appeal that the officer had a lawful basis to effect an arrest at the time of the challenged search. Id. at 114-15. The officer initially chose not to arrest the defendant; instead, he issued the defendant a citation. Id. at 114. During the stop, the officer undertook a warrantless search of Knowles’s vehicle, discovered a bag of marijuana and paraphernalia, and promptly arrested the defendant for the drug offense uncovered in the search.4 Id. After his conviction for possession of marijuana, the defendant appealed to the Iowa 4 At the time, Iowa followed the Supreme Court’s rule of New York v. Belton, 453 U.S. 454 (1981), that a search incident to arrest may include a search of the full passenger compartment of the vehicle. The scope of the search was not at issue in either holding. 23 Supreme Court, challenging the constitutionality of the warrantless search. Id. at 115. The Iowa Supreme Court upheld the constitutionality of the search, holding that the search could be justified as a search incident because grounds for a lawful arrest had existed at the time of the search. State v. Knowles, 569 N.W.2d 601, 602 (Iowa 1997), rev’d, 525 U.S. 113. In doing so, the Iowa Supreme Court relied largely on its prior decision in State v. Doran, wherein it had held that “the ‘search incident to an arrest’ doctrine . . . is dependent on facts that provide a legal basis for making a custodial arrest rather than the act of arrest itself.” 563 N.W.2d 620, 622 (Iowa 1997), abrogated by Knowles v. Iowa, 525 U.S. 113. Based on this premise, the Doran court reasoned that “if the officer is legally permitted and objectively authorized to make the arrest, he is, for that reason alone, also authorized to make the search.” Id. at 623. The U.S. Supreme Court unanimously reversed. Justice Rehnquist, writing for the entire Court, rejected the Iowa Supreme Court’s “reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest.”5 Knowles, 525 U.S. at 115-16. Instead, the Court held that the historical justifications for a search incident—“the need to 5 Both the Iowa Supreme Court and the U.S. Supreme Court framed the question this way despite the subsequent, nearly contemporaneous formal arrest. That subsequent arrest, prompted by the warrantless search, was disregarded for purposes of the constitutional analysis. 24 disarm the suspect in order to take him into custody” and “the need to preserve evidence for later use at trial”—were not present at all or applied with insufficient force absent a custodial arrest. Id. at 116-17 (emphasis added). As to the need to disarm the suspect, the Court emphasized that “‘[t]he danger to the police officer flows from the fact of the arrest . . . and not from the grounds for arrest.’” Id. at 117 (quoting Robinson, 414 U.S. at 234 n.5) (emphasis added). The need to preserve evidence, it found, was not implicated at all because no further evidence of the traffic offense (excessive speed) was going to be found. Id. at 118. The requirement that a search incident follow an actual arrest, the Court reiterated, is a “bright line rule,” which it refused to extend. Id. at 118-19. Twenty-five years earlier, in Cupp v. Murphy, 412 U.S. 291 (1973), the Supreme Court also held that probable cause to arrest, standing alone, does not give the police the right to conduct a full search. In Cupp, the police had probable cause to arrest the defendant for the murder of his wife, but did not make an arrest. Id. at 293-94. During voluntary questioning, the police observed the defendant appearing to rub his hands together in a manner which suggested he was trying to destroy evidence on his hands. Id. at 296. The Supreme Court permitted only a limited scraping of the defendant’s fingernails, and not a full search incident to arrest. Id. As the Court explained, the pressing need to preserve “highly evanescent evidence” created an exigent circumstance which permitted the limited 25 search. Id. However, the Court explained that a full search would have been impermissible: Where there is no formal arrest . . . a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself. Accordingly, we do not hold that a full Chimel search would have been justified in this case without a formal arrest and without a warrant. Id. (emphasis added). Taken together, Erwin, Evans, and Diaz—and the U.S. Supreme Court’s holdings in Knowles and Cupp—establish a rule whereby a full search of a defendant is reasonable only if the defendant is under custodial arrest at the time of the search. When a defendant is not under custodial arrest—even if probable cause to arrest exists—a search is impermissible unless grounded in a different exception to the warrant requirement (such as a Terry or De Bour search, see Point III, infra). Thus, the Appellate Division’s rule is contrary to years of precedent by this Court and the U.S. Supreme Court. Since the defendant was not under custodial arrest at the time of the search, the warrantless search of his person had no justification. 26 B. A Lawful Arrest Promptly Following a Search Cannot Bring a Prior Search Within the Search Incident to Arrest Exception. The Appellate Division attempted to distinguish Evans from the present case on the ground that Evans was not arrested until many days after the warrantless search, whereas here Mr. Reid was arrested soon after the search. See Reid, 104 A.D.3d at 62. However, that distinction is undermined by this Court’s holdings in Erwin and Diaz and the U.S. Supreme Court’s holding in Knowles. In each of those cases, probable cause to arrest existed before the search and an arrest promptly followed. But, in each, the search was held unlawful. In Knowles, the police did in fact arrest Knowles immediately after the search—but the U.S. Supreme Court still held the search invalid for lack of an arrest. 525 U.S. at 117. Likewise, in both Erwin and Diaz, the police arrested each of Erwin and Diaz seconds after they were searched—but this Court held that both searches were unlawful, and that the search incident to arrest doctrine did not apply, because the suspect had not been arrested at the time of the search. Diaz, 81 N.Y.2d at 109; Erwin, 42 N.Y.2d at 1065. The Appellate Division’s position that probable cause to arrest justifies a warrantless search, as long as arrest promptly follows, would render each of these cases wrongly decided. As these decisions confirm, the critical fact in Evans was not the passage of time between the search and the arrest, but the lack of any arrest—formal or otherwise—at the time of the search. 43 27 N.Y.2d at 165. Although, as explained in Section I.C, infra, a search incident may in certain circumstances precede formal arrest, an “arrest . . . for purposes of constitutional justification” prior to the search is indispensable; a subsequent arrest does not suffice. See Evans, 43 N.Y.2d at 166 (citation omitted). A rule permitting warrantless searches founded only on probable cause to arrest, as long as an arrest quickly followed the search, also fails on its own logic. The constitutionality of such a search 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.” See, e.g., Terry v. Ohio, 392 U.S. 1, 19-20 (1968) (explaining that evaluation of the constitutionality of a search is a dual inquiry of “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place”); People v. William II, 98 N.Y.2d 93, 98 (2002) (citing Terry, 392 U.S. at 20). Rather than creating an illogical rule whereby an illegal search may be cleansed by a subsequent arrest, this Court’s cases permit a search of a defendant prior to a formal arrest only if the defendant is actually and lawfully under arrest at the time of the search. 28 C. A Search Incident May Precede “Formal” Arrest Only When a Suspect Has Been Taken into Custody as the Initial Step of an Arrest. In Evans, this Court recognized that a search incident may in certain circumstances precede “formal” arrest, but limited that possibility to situations where an arrest “for purposes of constitutional justification” had occurred before the search. Evans, 43 N.Y.2d at 166 (citing Sibron v. New York, 392 U.S. 40, 67 (1968) (emphasis removed)); see Sibron, 392 U.S. at 67 (search that occurred after officer had grabbed and restrained suspect was permissible; “the arrest had, for purposes of constitutional justification, already taken place before the search commenced” (emphasis added)). To be sure, in recognizing this possibility, Evans did not abrogate in any respect the indispensability of an actual prior arrest to justify a search incident—to the contrary, this Court stated forcefully that an arrest was “an essential requisite to a search incident.” Evans merely acknowledged that, in certain circumstances, an arrest for purposes of constitutional justification may occur prior to “formal arrest.” It did not hold that a search incident may precede any arrest at all.6 6 Numerous Appellate Division decisions also have followed Erwin, Evans, and Diaz in holding that an arrest must precede a search incident. See People v. Driscoll, 101 A.D.3d 1466, 1467 (3d Dep’t 2012) (search “was not authorized as incident to a lawful arrest for a noise violation given the absence of any evidence that the officers arrested defendant prior to frisking him”); People v. Julien, 100 A.D.3d 925, 927 (2d Dep’t 2012) (search of a suspect for weapons prior to an arrest was impermissible “since the defendant had not been placed under arrest prior 29 Although Evans did not map with precision the elements of an “arrest for purposes of constitutional justification,” that decision along with subsequent decisions of this Court have identified the physical custody (or restraint) of the defendant as an indispensable component. That is, where a suspect has not been formally placed under arrest (and thereby been notified that he is being subjected to the custody of the state and no longer at liberty to leave), an arrest “for purposes of constitutional justification” requires that the suspect have been physically restrained and in that manner had his freedom of movement restricted. Accord Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (search that occurred after defendant had been detained in a house for forty-five minutes, had been read his Miranda rights, and confessed to ownership of drugs was not unconstitutional simply because “the formal arrest followed quickly on the heels of the challenged search”) (emphasis added). A custodial arrest prior to a search incident is thus indispensable, even if formal arrest has not yet occurred. to the search” and the officer lacked a reasonable basis to fear for his safety); People v. Kalikow, 90 A.D.3d 1558, 1558-59 (4th Dep’t 2011) (“If there is no arrest, however, there can be no search incident thereto. The record here supports County Court’s determination that a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but that defendant nevertheless was searched. We therefore cannot agree with the People that the search was justified as a search incident to a lawful arrest.”) (citation omitted); People v. Hoffman, 135 A.D.2d 299, 301 (3d Dep’t 1988) (“The pat-down search cannot be justified as a search incident to a lawful arrest since at that point no arrest had been made.”); People v. Savona, 112 A.D.2d 328 (2d Dep’t 1985) (despite committing traffic violations, defendants “had not been arrested until their car was searched and the guns were found”). 30 This Court applied this rule in Diaz, holding that “the search did not come within the exception to the warrant requirement for searches incident to arrest [because] defendant was arrested after the search,” and noting—in a footnote off that very sentence, in support of its ruling that no arrest had occurred—that “the hearing court made no finding that defendant was restrained prior to or contemporaneous with the search of his pocket.” Diaz, 81 N.Y.2d at 109 & n.1 (emphasis added); see also Evans, 43 N.Y.2d at 166 (“‘[F]or purposes of constitutional justification’, the arrest was effected when the policeman took the burglar, Peters, into custody on the stairwell.” (quoting Sibron, 392 U.S. at 67) (emphasis added and removed)). Custody of the defendant—“restrain[t]”—is accordingly indispensable to conclude that an arrest for purposes of constitutional justification has occurred prior to formal arrest. See Diaz, 81 N.Y.2d at 109 n.1. We submit, however, that physical restraint or custody, while necessary for an arrest, is not sufficient, and that it is additionally necessary that the custody or restraint be with the intent and in the process of effecting a formal arrest. In other circumstances (i.e., absent an intent to effect an arrest), even severe physical restraints have been held not to amount to an “arrest” and to constitute only “seizures,” justifiable by less than probable cause. See, e.g., People v. Allen, 73 N.Y.2d 378, 379 (1989) (holding that handcuffing and moving defendant from an alley to a well-lit area “did not constitute an arrest,” but rather was a protective 31 frisk for weapons); People v. Chestnut, 51 N.Y.2d 14, 18-20 (1980) (holding that a defendant ordered at gunpoint to lie face-down on the ground was not arrested because the stop was “analogous to the classic ‘stop and frisk’ procedure”). Absent formal arrest, the occurrence of an arrest for constitutional purposes therefore requires both (1) physical restraint of the suspect and (2) an intention to make a prompt formal arrest. Here, it is undisputed that no formal arrest had occurred at the time of Mr. Reid’s search. See Point III, infra. Nor had an arrest “for purposes of constitutional justifications” occurred. Indeed, both elements—custody, and an intent to effect arrest—are lacking. The hearing court and Appellate Division both determined that Mr. Reid was not in custody or “restrained” at the time of the search (Reid, 104 A.D.3d at 59; A. 160; see Point III, infra). And, as Officer Merino admitted, he was not in the process of arresting Mr. Reid at the time of the search. (A. 74-75.) This Court’s decision in People v. Landy, 59 N.Y.2d 369 (1983), which the Appellate Division did not cite and did not rely upon, does not hold to the contrary and does not permit a search incident to precede custodial arrest. In that case, police officers spotted a vehicle matching the description and license plate number of one sought in connection with “several burglaries”; noticed that the driver, Landy, matched the description of the reported burglar; noted two knives, one of 32 which was a switchblade, in plain view on the driver’s seat; searched Landy, and then formally arrested him upon discovering additional evidence of the burglaries. Id. at 373. Crucially, the officers’ observation of knives in plain view demonstrated that Landy was armed and likely to pose a threat to the officers—an independent basis to search that is absent in this case. In a single sentence, the Court rejected Landy’s challenge to the search, commenting 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.” Id. at 377 (citing Evans, 43 N.Y.2d 160). It is clear that Landy did not—in a single sentence—discard this Court’s earlier holdings in Erwin and Evans that, absent an arrest, a warrantless search cannot be justified based on the existence of probable cause. For one, Landy’s immediate citation to Evans shows that the Landy court was invoking this very rule: that a warrantless search of a defendant may precede formal arrest only where an arrest for constitutional purposes had already occurred. See Landy, 59 N.Y.2d at 377 (citing Evans, 43 N.Y.2d 160). Moreover, this Court’s subsequent opinion in Diaz reaffirmed the rule of Erwin and Evans, concluding that the search of Diaz was not a lawful search incident to arrest because “defendant was arrested after the search,” and pointing to the lack of “restrain[t] prior to or contemporaneous with” 33 the search as support for its ruling that no arrest had occurred. 81 N.Y.2d at 109 & n.1 (emphasis added). Likewise, the Supreme Court in Knowles considered and rejected the argument that, because a search incident may in certain circumstances precede formal arrest, a search incident could be justified simply by probable cause to arrest. In that case, the Iowa Supreme Court had relied on search-preceding- formal-arrest cases to conclude that the justification for a search incident arose from the grounds for arrest, not the fact of arrest, and thus that probable cause to arrest alone justified a warrantless search. State v. Knowles, 569 N.W.2d at 602 (relying on “decisions that hold that the timing of the arrest need not precede the search” to rebut the idea that “the constitutional basis for the ‘search incident to an arrest’ exception is an actual arrest”); Doran, 563 N.W.2d at 622-23. The Supreme Court unanimously rejected that reasoning. Knowles, 525 U.S. at 117-19 (emphasizing that the search incident to arrest exception is rooted in the fact of an arrest, not the grounds for the arrest). Therefore, the law of this State—and of the United States—remains that where no formal arrest has occurred, an arrest for purposes of constitutional justification prior to the search is indispensable. Such an arrest cannot exist absent (1) custody and (2) intent to arrest, both of which are absent here. 34 As the Appellate Division correctly noted, cases permitting a warrantless search prior to “formal arrest” “are of limited value as applied here” because “the arrest [of Mr. Reid] was not merely a formality that they happened to leave until after the search.” Reid, 104 A.D.3d at 62. Landy and related cases therefore offer no support for the Appellate Division’s ruling: the issue in Mr. Reid’s case is not the sequence of search and “formal arrest,” but rather the absence of any arrest at the time the search was undertaken. Because a prior arrest for purposes of constitutional justification is indispensable to a lawful search incident, and Mr. Reid had not been formally arrested or restrained at the time of his search, the search of Mr. Reid is not justifiable under the search incident doctrine. D. The Appellate Division Erroneously Focused on the Legality of an Arrest, Rather Than Whether a Lawful Arrest Occurred Prior to the Search. The Appellate Division’s extensive discussion of three cases that address the legality of a stop or arrest—People v. Robinson, 97 N.Y.2d 341 (2001), Devenpeck v. Alford, 543 U.S. 146 (2004), and People v. Rodriguez, 84 A.D.3d 500 (1st Dep’t 2011)—is misplaced for two reasons. First, none of these cases supports the Appellate Division’s holding that probable cause is sufficient to justify a warrantless search. Second, the proposition these cases do support—that the existence of probable cause is an objective determination as to which subjective motivations do not control—is not at issue in this case. 35 As an initial matter, none of Devenpeck, Robinson, and Rodriguez hold that a warrantless search based only on probable cause is reasonable. For instance, Devenpeck holds that an arrest may be justified if probable cause to arrest exists for an offense wholly distinct from the offense that the arresting officer identifies as the basis for the arrest. 543 U.S. at 153-56. People v. Rodriguez is a straightforward application of this rule and, if it has any relevance here, actually underscores that a search incident requires a prior custodial arrest. See 84 A.D.3d at 501 (holding that an arrest was lawful, and denying a motion to suppress evidence uncovered in a search incident to arrest: “Since there was a valid custodial arrest, the officer properly searched defendant incident to that arrest . . . .”). Most importantly, this Court’s decision in Robinson plainly explains that its holding extends only to analysis of the legality of a stop, and not to analysis of any searches occurring thereafter: Our holding in this case addresses only the initial police action upon which the vehicular stop was predicated. The scope, duration and intensity of the seizure, as well as any search made by the police subsequent to that stop, remain subject to the strictures of article I, § 12, and judicial review. Robinson, 97 N.Y.2d at 353 (citation omitted). Later, the Robinson court elaborated that, “In any event, we are not dealing here with search warrants or even with searches but with traffic stops based on particular violations of law established by probable cause.” Id. at 354 n.5 (emphasis added). 36 Nonetheless, the Appellate Division concluded that “[u]nder the rule stated in Rodriguez and Devenpeck . . . where the facts create probable cause to arrest, a search must be permissible.” Reid, 104 A.D.3d at 61. Neither the U.S. Supreme Court nor this Court has ever applied the rule to uphold a search as “incident to arrest” when the person searched was not under arrest at the time of the search. These cases offer no support for the Appellate Division’s holding that a warrantless search “incident to arrest” is permissible when the individual searched is not under arrest. Second, the proposition that these cases do support—that courts should not impose a secondary subjective test of motivations in assessing whether objective probable cause justifies an arrest—is not at issue in this case. See, e.g., Robinson at 97 N.Y.2d at 353, 356. It is undisputed, for purposes of this appeal, that probable cause existed to arrest Mr. Reid for driving while intoxicated, and Mr. Reid has never contended that the officer’s testimony negates the existence of probable cause. What the officers’ factual testimony confirms, rather, is simply that no arrest had occurred or was even in progress at the time of the search—a fact conclusively determined below and fatal to the Appellate Division’s holding. 7 (See Point I.C, supra and Point III, infra.) 7 In fact, the hearing court pointed out that Officer Merino’s statement was not an assessment of whether probable cause to arrest existed, but rather a description of what he was 37 Furthermore, these cases do not prohibit consideration of whether an officer’s seizure of an individual is part of an arrest—i.e., whether the officer intends to arrest the individual—when analyzing whether a search was “reasonable” under the New York and Federal Constitutions. Many 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 search: prime examples include the attenuation doctrine, inventory searches, and administrative searches. See, e.g., Brown v. Illinois, 422 U.S. 590, 604-05 (1975) (the “purpose and flagrancy” of official misconduct is “particularly” relevant in attenuation analysis; Fourth Amendment taint not attenuated where illegality had “quality of purposefulness”); People v. Martinez, 37 N.Y.2d 662, 666-67 (1975) (adopting Brown test); People v. Harris, 72 N.Y.2d 614, 622 (1988), rev’d sub nom New York v. Harris, 495 U.S. 14 (1990), order reinstated on remand by People v. Harris, 77 N.Y.2d 434 (1991) (“If doing at the time. (A. 157 (“Although [Officer Merino] did say he did not at that time intend to arrest [Mr. Reid], he did not say that he did not have probable cause to arrest him.”).) The Appellate Division was thus off the mark in disregarding Officer Merino’s testimony that he “had not intended to arrest [Mr. Reid]” at the time of the search on the basis that the Court need not defer to his “subjective assessment . . . regarding the nature and extent of his authority to act.” Reid, 104 A.D.3d at 59; (A. 4, 157.). As the hearing court correctly noted, Merino’s testimony was not a subjective assessment of his authority to act. (A. 157.) Accordingly, in creating a dichotomy between (1) “factual testimony of the arresting officer” (upon which the Court would rely) and (2) “subjective assessment . . . of his authority to act” (to which the Court would not defer), the Appellate Division erred by putting Officer Merino’s testimony in the wrong category—i.e., by treating it as a subjective assessment to be disregarded rather than as factual testimony that must be considered. Because the testimony was not a subjective assessment of authority, it should have been considered by the Appellate Division even under their dichotomy. 38 the impetus for the illegality has been a purposeful violation of the Fourth Amendment more is required to attenuate the causal chain between it and the confession . . . the police illegality [here] was knowing and intentional . . . it had a ‘quality of purposefulness’”) (quoting Brown, 422 U.S. at 605); Ferguson v. City of Charleston, 532 U.S. 67, 82-84 (2001) (explaining that whether a warrantless search is permitted under the “special needs” doctrine turns upon the “primary purpose” of the search, and holding drug testing program unconstitutional where “primary purpose” was law enforcement). The cases cited by the Appellate Division thus do not hold that subjective intent must be disregarded for all purposes of Fourth Amendment analysis.8 8 Evaluating whether an officer took a subject into custody for the purpose of an arrest is entirely consistent with the policy decisions underlying Robinson. The Robinson majority ultimately rejected the proposed rule—conditioning the legality of a stop upon the officer’s motivations or the conduct of a “reasonable officer”—because it would be too difficult to administer and because it would unduly restrict police officers from enforcing the law. See Robinson, 97 N.Y.2d at 355-56. By contrast, evaluating whether a “custodial arrest” has occurred, in part, by consideration of whether the subject was taken into custody for the purpose of an arrest will not restrict officers from making arrests supported by probable cause or hamper the administration of search-and-seizure law. Whether a seizure was part of an arrest will often be determined based on the fact that a “formal” arrest follows the seizure, and in no case requires examining whether an officer made an arrest for the “right reasons.” And examining whether a seizure is a “custodial arrest” by considering whether that seizure was for the purposes of an arrest will assist officers and courts attempting to distinguish seizures short of an arrest, which do not require probable cause and do not authorize a full search incident, from arrests, which require probable cause and justify a warrantless search in the absence of specific exigent circumstances. Indeed, in People v. Erwin, this Court noted that testimony substantially similar to that of the officer in this case further confirmed that a suspect was not under arrest at the time of a search. 42 N.Y.2d at 1065 (pointing to arresting officer’s testimony that the officer was “going to give [defendant] a warning” at time of the search as additional evidence that no arrest had occurred). 39 POINT II. THE APPELLATE DIVISION’S RULE INVITES UNCONSTITUTIONAL EXPLORATORY SEARCHES. If allowed to stand, the Appellate Division’s rule—and any rule permitting searches based solely on the existence of probable cause to arrest—would overturn decades of search incident jurisprudence, create a broad and novel exception to the warrant requirement, and expose New Yorkers to exploratory warrantless searches. The strict limitation of the bright-line search incident to arrest doctrine to actual arrests serves to ensure that this exception does not swallow the rule. Under the Appellate Division’s rule, once probable cause of a minor offense has arisen, an officer who has not arrested and does not even intend to arrest the suspect has a free option to undertake a “fishing expedition” search, and then, if evidence of a more serious crime (e.g., drugs or weapons) is uncovered, may retroactively validate the search by arresting the suspect afterward. See, e.g., United States v. Williams, 170 F. App’x 399, 404-05 (6th Cir. 2006).9 Such an unwarranted 9 The Sixth Circuit noted: “We recognize that applying the literal language of Rawlings to a routine traffic stop creates the risk of abuse by law enforcement officers. Arguably, under the literal language of Rawlings, an officer could search a suspect’s vehicle during a routine traffic stop, arrest the suspect after finding contraband, and then validate the search by testifying that he arrested the suspect for the misdemeanor traffic offense. We do not believe that to be the holding of Rawlings, nor the law of the Fourth Amendment. The reasonableness of a search depends on what the officers actually did, not what they had the authority to do. See Knowles, 525 U.S. at 114 (holding that despite an officer’s statutory authority to arrest a suspect for the commission of a traffic offense, an officer may not conduct a search incident to arrest based on that authority unless he actually conducts an arrest).” Williams, 170 F. App’x at 404-05. 40 expansion of the search incident doctrine would both unmoor the doctrine from its constitutional foundation—a custodial arrest—and effectively eliminate a safeguard against unwarranted exploratory searches. Crucially, no such expansion of the search incident exception to the warrant requirement is needed to ensure that police officers may protect themselves or preserve evidence by conducting a limited search prior to arrest when exigent circumstances—absent here—exist. Perhaps most importantly, Terry and De Bour permit an officer to search an individual whenever the circumstances provide the officer with reasonable suspicion of illegality and a reasonable basis to believe the individual is armed or poses a threat to officer safety. Terry v. Ohio, 392 U.S. 1, 27 (1968); People v. De Bour, 40 N.Y.2d 210, 223 (1976). De Bour and Terry provide officers with all the necessary authority to protect their safety in the course of investigations, prior to arrest. But neither these cases nor the search incident to arrest doctrine authorize an officer to search a defendant, who has not been arrested, for a weapon10 without reasonable basis to believe that the suspect is armed or dangerous. Officers’ ability to preserve evidence in the course of investigations is equally well-protected under existing law. If officers have probable cause to arrest a suspect and fear that the time required to obtain a warrant will result in the 10 “For his security and my security, I pat[ted Mr. Reid] down.” (A. 42.) 41 destruction of “highly evanescent” evidence, officers may conduct a limited search for such evidence without a warrant and without having first arrested the subject. Cupp, 412 U.S. at 296. Other exceptions similarly provide officers with a limited right to search upon the existence of specific exigencies. See, e.g., People v. Knapp, 52 N.Y.2d 689, 695-96 (1981) (the “exigent circumstances” doctrine “is said to exist whenever, though there is probable cause to search, urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” (internal quotation marks omitted)). In short, these well-defined exceptions allow officers to address the inherent risks of police work and to effectively investigate criminality without creating an unsupported expansion of the search incident to arrest exception. Where such exigent circumstances exist, these exigencies, and not probable cause to arrest or the search incident to arrest doctrine, will justify the search. Here, however, no such exigency or other exception existed. In fact, at the suppression hearing below, the prosecution argued that the officer’s search of Mr. Reid was justified as a Terry stop and never once raised a search incident to arrest argument with respect to the search of Mr. Reid for the knife,11 no doubt because that exception appeared patently inapplicable to the prosecution: after all, Mr. Reid 11 The government only raised the search incident argument as to a later search of Mr. Reid at the police precinct, well after his formal arrest. (A. 150.) 42 had not been arrested when he was searched. Instead, the government argued for the exception to the warrant requirement that was consistent with the nature and scope of the officer’s search. Officer Merino testified that he was searching for a weapon—and that he was not at that time arresting Mr. Reid. The hearing court correctly held that the officer “had no reason to believe that [Mr. Reid] had a weapon” and therefore, a search for weapons was not justified based on any fear for the officer’s safety. (A. 161.) Rather than conclude its holding there, the lower court opted to stretch another exception—the search incident to arrest exception— beyond its logical and constitutional parameters in order to reach this case. (Id. (“In my view . . . the frisk and ultimate search can only be justified if the officer had probable cause to arrest the defendant at that time.”).) This result was improper, illogical, and, if permitted to stand, would have unacceptable consequences to New Yorkers’ right to be free from unreasonable searches. Having found that Mr. Reid was not in custody or under arrest at the time of the search, the courts below erred in holding that the search incident to arrest exception applied based only on the existence of probable cause to arrest. 43 POINT III. THE COURTS BELOW CONCLUSIVELY DETERMINED THAT MR. REID WAS NOT IN CUSTODY OR UNDER ARREST AT THE TIME OF THE WARRANTLESS SEARCH. A. The Hearing Court and the Appellate Division Specifically Found That Mr. Reid Was Not Under Arrest or in Custody at the Time of the Search. The opinion of the Appellate Division and the hearing court leave no room to doubt that Mr. Reid was not in custody or under arrest at the time he was searched for a weapon without a warrant. As set out above, Justice Goldberg found that Mr. Reid “was not in custody at the time” of “the inquiry that took place at the roadside stop . . . .” (A. 160.) The hearing court further found that Mr. Reid was placed into handcuffs only after Officer Merino conducted his warrantless search of Mr. Reid and discovered that the “hard object” he felt during the search was a switchblade. (A. 158.) Similarly, Justice Goldberg’s reasoning that Officer Merino “could have” arrested Mr. Reid underscores that at the time of the search, although he could have arrested Mr. Reid, he had not done so. (A. 162.) The Appellate Division concurred with Justice Goldberg’s determinations and thus specifically found that “[Mr. Reid] was placed under arrest only after a knife was found in his pocket.” Reid, 104 A.D.3d at 59. Moreover, the Appellate Division foreclosed any argument that Mr. Reid was under custodial arrest or otherwise in police custody at the time of the search, distinguishing Officer 44 Merino’s traffic stop with cases in which an officer made a custodial arrest before a search and completed the formal arrest afterward: Mr. Reid’s arrest following the search “was not merely a formality that [the arresting officer] happened to leave until after the search.” Id. at 62. Finally, even though the Appellate Division concluded that the warrantless search for the knife was lawful, it carefully distinguished between the “initial search that disclosed the knife” and “the ensuing full search incident to arrest” that took place at the Precinct station, id. at 63, suggesting that the “initial search” that revealed the knife was not a “full search incident to arrest” but a cursory search that occurred before Mr. Reid was arrested (but yet somehow was constitutionally permissible). The decisions below conclusively establish that Mr. Reid was not in custody and not under arrest— whether formal or custodial—at the time of the search. B. The Finding That Mr. Reid Was Not Under Arrest at the Time of the Search Is a Mixed Question of Fact and Law Not Subject to Review by This Court. The finding below that Mr. Reid was not under arrest at the time of the search is a mixed question of fact and law amply supported by the record and thus is not subject to review in this court. It is well-established that “questions of fact or mixed questions of law and fact, generally are beyond the review powers of this [C]ourt.” People v. McRay, 51 N.Y.2d 594, 601 (1980); see also People v. Burr, 70 N.Y.2d 354, 361 (1987) (“[W]here, as here, there is support in the record for 45 such undisturbed findings [in mixed question of fact and law], they are beyond the scope of our review.” (citation omitted)).12 As noted above, the record amply supports the conclusion of the hearing court and the Appellate Division that Mr. Reid was not in custody and not under arrest at the time of the search. In fact, in opposition to Mr. Reid’s application for leave, the prosecution noted that “Merino then arrested defendant” after the search of Mr. Reid and after discovering the switchblade through that search. (Respondent’s Letter Opposing Leave to Appeal, at 1 (emphasis added).) Because it is established that Mr. Reid was not under custodial arrest at the time of the search, Officer Merino’s warrantless search of Mr. Reid cannot be justified based on the existence of probable cause to arrest or under the search- incident-to-arrest doctrine. The decision below must therefore be reversed. 12 The prosecution relied on the “mixed question” doctrine to argue that the Appellate Division’s determination that Officer Merino had probable cause to arrest Mr. Reid for driving while intoxicated. (Respondent’s Letter Opposing Leave to Appeal, at 2 (“That conclusion [that probable cause to arrest for drunk driving existed], representing a mixed question of law and fact, is beyond this Court’s further review.” (citing People v. Campbell, 87 N.Y.2d 855, 857 (1995); People v. Harrison, 57 N.Y.2d 470, 477-48 (1982))).) The determination that Mr. Reid was not in custody at the time of the search is equally not subject to review by this Court. 46 CONCLUSION For the foregoing reasons, this Court should reverse the order of the Appellate Division, suppress the evidence seized from Appellant, and dismiss the indictment. Dated: New York, New York October 10, 2013 DAVIS POLK & WARDWELL LLP By: Antonio J. Perez-Marques antonio.perez@davispolk.com Marc J. Tobak Gabriel Jaime 450 Lexington Avenue New York, New York 10017 (212) 450-4000 THE LEGAL AID SOCIETY CRIMINAL APPEALS BUREAU Steven Banks 199 Water Street New York, New York 10038 (212) 577-3300 Attorneys for Defendant-Appellant Graham Reid /s/ Antonio J. Perez-Marques