The People, Respondent,v.Graham Reid, Appellant.

Brief

N.Y.November 18, 2014

To be argued by: ANTONIO J. PEREZ-MARQUES (20 Minutes Requested) New 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. REPLY 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 PETER R. MITCHELL JOHN SCHOEFFEL ANDREW C. FINE Of Counsel 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 Graham Reid March 13, 2014 i TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT .................................................................... 1 ARGUMENT .................................................................................................. 4 POINT I. BECAUSE PROBABLE CAUSE TO ARREST DOES NOT SUFFICE TO JUSTIFY A WARRANTLESS SEARCH, THE SEARCH OF APPELLANT WAS UNLAWFUL .................................... 4 POINT II. RESPONDENT’S ALTERNATIVE RULE IS CONTRARY TO CONTROLLING PRECEDENT AND DANGEROUSLY UNDERMINES CONSTITUTIONAL PROTECTIONS ........................................................................................ 6 POINT III. THE ISSUES ON APPEAL ARE PRESERVED FOR THIS COURT’S REVIEW ...................................................................... 25 CONCLUSION ............................................................................................. 28 ii TABLE OF AUTHORITIES PAGE CASES Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967)............................................................ 17, 18 Chimel v. California, 395 U.S. 752 (1969) ..................................................................... 12, 14, 16 Cupp v. Murphy, 412 U.S. 291 (1973) ..................................................................... 14, 16, 18 Elkins v. United States, 364 U.S. 206 (1960) ................................................................................. 21 Husty v. United States, 282 U.S. 694 (1931) ................................................................................. 16 Knowles v. Iowa, 525 U.S. 113 (1998) .......................................................................... passim Mapp v. Ohio, 367 U.S. 643 (1961) ................................................................................. 21 People v. Belton, 55 N.Y.2d 49 (1982) ................................................................................. 12 People v. Blasich, 73 N.Y.2d 673 (1989) ............................................................................... 12 People v. Copeland, 39 N.Y.2d 986 (1976) ................................................................................. 9 People v. Cruz, 43 N.Y.2d 786 (1977) ............................................................................... 18 iii People v. Diaz, 81 N.Y.2d 106 (1993) ........................................................................ passim People v. Edwards, 95 N.Y.2d 486 (2000) ............................................................................... 26 People v. Erwin, 42 N.Y.2d 1064 (1977) ...................................................................... passim People v. Evans, 43 N.Y.2d 160 (1997) ..................................................................... 5, 13, 14 People v. Feingold, 7 N.Y.3d 288 (2006) ................................................................................. 25 People v. Jennings, 69 N.Y.2d 103 (1986) ............................................................................... 26 People v. Jimenez, — N.Y.3d —, 2014 N.Y. Slip Op. 01262 (Feb. 25, 2014) ...................... 18 People v. Johnson, 1 N.Y.3d 252 (2003) ................................................................................. 11 People v. Landy, 59 N.Y.2d 369 (1983) ............................................................................... 18 People v. Mack, 26 N.Y.2d 311 (1970) ............................................................................... 18 People v. Marsh, 20 N.Y.2d 98 (1967) ......................................................................... 7, 9, 10 People v. Martin, 50 N.Y.2d 1029 (1980) ............................................................................. 26 People v. Prado, 4 N.Y.3d 725 (2004) ................................................................................. 26 People v. Reid, 104 A.D.3d 58 (1st Dep’t 2013) ............................................................. 1, 5 iv People v. Robinson, 97 N.Y.2d 341 (2001) ............................................................................... 11 People v. Simon, 45 Cal. 2d 645 (1955) ............................................................. 10, 11, 14, 16 People v. William II, 98 N.Y.2d 93 (2002) ................................................................................. 21 Preston v. United States, 376 U.S. 364 (1964) ................................................................................. 12 Rawlings v. Kentucky, 448 U.S. 98 (1980) ................................................................................... 17 Sibron v. New York, 392 U.S. 40 (1968) ............................................................................. 14, 15 Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................... 21, 24 United States v. Brown, 463 F.2d 949 (D.C. Cir. 1972).................................................................. 18 United States v. Di Re, 332 U.S. 581 (1948) ............................................................................ 22-23 United States v. Riggs, 474 F.2d 699 (2d Cir. 1973) ......................................................... 14, 15, 16 United States v. Robinson, 414 U.S. 218 (1973) .......................................................................... passim United States v. Robinson, 471 F.2d 1082 (D.C. Cir. 1972)............................................................ 9, 15 United States v. Skinner, 412 F.2d 98 (8th Cir. 1969) ................................................................ 14, 16 v Whren v. United States, 517 U.S. 806 (1996) ................................................................................. 11 STATUTES & RULES N.Y. Crim. Proc. Law § 470.05 ........................................................ 25, 26, 27 OTHER AUTHORITIES 28 N.Y. Jur. 2d Courts & Judges § 213 ........................................................ 11 N.Y. Crim. Proc. Law § 470.05 (McKinney), Historical and Statutory Notes ................................................................. 26 1 PRELIMINARY STATEMENT Appellant Graham Reid’s opening brief demonstrated that the warrantless search of Mr. Reid was not justifiable as a search incident to arrest—and was therefore unlawful—because Mr. Reid was undisputedly not under formal or custodial arrest at the time he was searched. Appellant further demonstrated that the Appellate Division erred in finding the search of Mr. Reid lawful on the basis that probable cause to arrest Mr. Reid existed, reasoning that “where the facts create probable cause to arrest, a search must be permissible,” People v. Reid, 104 A.D.3d 58, 61 (1st Dep’t 2013). Respondent’s brief in opposition concedes (as it must) that “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.” (Respondent’s Brief (“Resp. Br.”) at 27.) Thus, even under Respondent’s view of the law, the Appellate Division based its ruling on a reasoning that this Court has “expressly rejected.” As demonstrated in Appellant’s opening brief, the Supreme Court has rejected that reasoning too, in Knowles v. Iowa, 525 U.S. 113 (1998), a case that Respondent tellingly relegates to a single paragraph on the forty-first page of its 42-page opposition. Thus unable to defend the Appellate Division’s stated opinion, Respondent advances an alternative rule under which probable cause to arrest—though not sufficient on its own—becomes sufficient so long as the defendant is arrested 2 promptly after the search. This circular and illogical rule is at odds with the law and does not withstand scrutiny. First, Respondent’s rule is irreconcilable with the holdings of this Court in People v. Erwin, 42 N.Y.2d 1064 (1977), and People v. Diaz, 81 N.Y.2d 106 (1993), as well as that of the United States Supreme Court in Knowles. As Appellant’s opening brief explained, each evaluated a search in which probable cause to arrest existed before the search and the defendant was lawfully arrested promptly afterwards, but each ruled that the search was illegal. Plainly, preexisting probable cause and a prompt subsequent arrest are not sufficient. Second, Respondent’s rule is based on a fundamentally erroneous view of the search-incident-to-arrest exception. Under this faulty view, the authority to search arises out of probable cause (i.e., the grounds to arrest) rather than the fact of a lawful custodial arrest. That too is a contention that this Court and the Supreme Court have rejected. The out-of-state cases that form the centerpiece of Respondent’s argument predate the decisions that created the rule authorizing searches after arrest without an independent showing that exigent circumstances necessitate a warrantless search. Respondent’s reliance on cases allowing searches before formal arrest also offers no support as such cases hinge on the existence of a custodial arrest or exigent circumstances before the search—none of which existed in this case. 3 Third, Respondent’s rule is hopelessly indeterminate, as it conditions the legality of a search upon what the officer does afterwards. Respondent does not (and cannot) dispute that the constitutionality of a search must be determined, and thus must be determinable, at the time the search is undertaken. Yet under Respondent’s proposed rule, the constitutionality of a search would be unknown at the time it was undertaken: the character of the search as reasonable or as a violation of the suspect’s person would only become known and knowable based on what happened next. Respondent’s only response to this point is to assert that the constitutionality arises from the existence of probable cause—the very position that it concedes this Court has rejected. Fourth, and finally, Respondent’s rule dangerously undermines constitutional protections against warrantless searches. In practice, its rule would exempt officers from the exclusionary rule for the fruits of any exploratory search undertaken after probable cause to arrest has arisen: if evidence is found and arrest follows, the search will have become legal; if no evidence is found and no arrest follows—rendering the search illegal under Respondent’s rule—there will be no opportunity for the exclusionary rule to apply. Officers have a free option once probable cause exists: as long as they find evidence, they need not worry about exclusion. Respondent’s rule would provide as practical guidance to law enforcement a notion this Court has rejected repeatedly (that a search may be 4 undertaken whenever probable cause to arrest exists), and it would engender a tremendous number of illegal searches. In the end, it is undisputed that Mr. Reid was not in custody when he was searched, that no independent justification for the search existed, and that probable cause to arrest is not sufficient to justify a warrantless search. The Appellate Division therefore erred and its decision must be reversed. ARGUMENT POINT I. BECAUSE PROBABLE CAUSE TO ARREST DOES NOT SUFFICE TO JUSTIFY A WARRANTLESS SEARCH, THE SEARCH OF APPELLANT WAS UNLAWFUL. A. The Appellate Division Erred in Ruling that Probable Cause to Arrest Mr. Reid Justified a Warrantless Search. In its opposing brief, the prosecution rightly concedes that “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.” (Resp. Br. at 27.) Probable cause to arrest is not sufficient to justify a warrantless search, and this Court and the United States Supreme Court have time and again rejected this idea. (Appellant’s Brief (“App. Br.”) at 16-18 (citing Diaz, 81 N.Y.2d 5 at 109; People v. Evans, 43 N.Y.2d 160, 164-65 (1977); Erwin, 42 N.Y.2d at 1065- 66; Knowles, 525 U.S. at 116-17).) In light of its admission that probable cause is not sufficient to justify a warrantless search, the prosecution seems aware that it cannot argue that the plain language of the Appellate Division’s opinion was not error. Instead, the prosecution argues that the Appellate Division “addressed only the probable cause component of the search incident to arrest” (Resp. Br. at 30), and thus did not mean what it said in its categorical declaration that “where the facts create probable cause to arrest, a search must be permissible,” Reid, 104 A.D.3d at 61. In reality, the Appellate Division’s opinion makes clear that it considered probable cause to arrest to be the only condition to a search incident to arrest, and it therefore held that the “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. As this holding is undisputedly erroneous, the ruling below must be reversed. 6 POINT II. RESPONDENT’S ALTERNATIVE RULE IS CONTRARY TO CONTROLLING PRECEDENT AND DANGEROUSLY UNDERMINES CONSTITUTIONAL PROTECTIONS. Because Respondent cannot defend the Appellate Division’s ruling by its own terms, it urges an alternative rule under which it asserts that the search of Mr. Reid was constitutionally permissible. According to the District Attorney, while probable cause to arrest is not sufficient to justify a warrantless search by itself, such a search becomes constitutional if the defendant is arrested shortly after the search. (Resp. Br. at 21.) This rule is both illogically circular and contrary to controlling cases of this Court and the United States Supreme Court, and even the District Attorney seems to acknowledge that it would subject citizens to admittedly unconstitutional searches. A. Respondent’s Alternative Rule Is Contrary to Controlling Precedent. Respondent’s rule is grounded in a mistaken view of the foundation of the search incident doctrine. Accordingly, it compels results directly contrary to the ones which this Court reached in Diaz and Erwin, and which the United States Supreme Court reached in Knowles. In each of those cases, probable cause to arrest existed before the warrantless search and an arrest promptly followed the search. Were Respondent correct that probable cause to arrest can justify a warrantless search so long as an arrest follows, the searches in these cases would 7 have been upheld. However, in each, the search was held to be unlawful. See Knowles, 525 U.S. at 117; Diaz, 81 N.Y.2d at 109; Erwin, 42 N.Y.2d at 1065; see also App. Br. at 26-27. Tellingly, the prosecution relegates its discussion of Knowles—the controlling United States Supreme Court precedent—to a single paragraph on the forty-first page of its 42-page brief. (Resp. Br. at 41.) It argues that Knowles “did not hold that the timing of the arrest was a fatal flaw,” but instead contends that the Supreme Court rooted its decision in the fact that the concerns that justify searches incident to arrests “were lessened” in that situation. (Resp. Br. at 41.) The prosecution even cites to People v. Marsh, 20 N.Y.2d 98 (1967) as though Marsh could explain the Supreme Court’s decision. 1 The prosecution offers no response to the fact that the Knowles court expressly rejected the view that the “type” of arrest determines the legality of the search, explaining that “‘[t]he danger to the police officer [justifying the search] flows from the fact of the arrest . . . and not from the grounds for arrest.’” 525 U.S. at 117 (quoting United States v. Robinson, 414 U.S. 218, 234 n.5 (1973)) (emphasis added). Moreover, while Respondent 1 Respondent’s citation to Marsh as an explanation for Knowles is even more puzzling because United States v. Robinson—which Knowles relies upon—specifically holds that a police officer may conduct a search incident to arrest after having made an arrest for a traffic violation. See United States v. Robinson, 414 U.S. 218, 235-36 (1973). It is unlikely in the extreme that the United States Supreme Court was silently applying Marsh rather than its own rule in Robinson, and so based its decision on the fact that the probable cause to arrest was for a traffic violation rather than on the absence of an arrest prior to the search. 8 points to the fact that the Knowles court looked to the specific circumstances of the arrest to discern whether exigent circumstances were shown, Respondent fails to acknowledge that this very inquiry proves that the Supreme Court was not applying the “bright-line rule” of Robinson, under which a search after arrest is lawful without any showing of exigency under the particular circumstances of that case. Robinson, 414 U.S. at 235. 2 In Knowles, the police had probable cause to arrest and had the power to arrest at the time of the search, and an arrest quickly followed the search, but the officer had not made an arrest and had not intended to make an arrest at the time of the search. 525 U.S. at 114-15. The prosecution’s analysis of People v. Erwin also collapses upon closer examination. The prosecution’s main argument regarding that case is that the Court was not recognizing a distinction between “a pre-arrest and a post-arrest 2 Respondent also seems to highlight the fact that the officer in Knowles had “already” issued a citation at the time of the search, but does not explain why this would be significant. (See Resp. Br. at 41.) Under Respondent’s proposed rule, issuing a citation would only matter if issuing a citation somehow caused the officer to relinquish his power to make a subsequent arrest under the federal Constitution (even though he still had probable cause to arrest and was authorized under state law to do so). Even after issuing a citation, the officer was still in the position of having probable cause to arrest and in fact did make an arrest shortly after the search—precisely what Respondent claims are the only requirements for a valid search incident. No such rule limiting the power to arrest has ever been construed before, and the Supreme Court did not mention such a rule in Knowles. Of course, the fact that the officer had issued a citation was important in Knowles, but it was important because it provided objective evidence that the officer (a) had not subjected Knowles to any form of custodial arrest at the time of the search, and (b) did not even intend to arrest Knowles at the time of the search—both of which Respondent insists are irrelevant to the issue. 9 search incident to arrest” at all, but was in fact deciding the case under Marsh. (Resp. Br. at 38.) Apart from the reality that the opinion does recognize such a distinction, the problem with the prosecution’s use of Marsh to explain Erwin is that the Erwin court does not even mention Marsh. Instead, Erwin cites to two cases holding the opposite—specifically, People v. Copeland, 39 N.Y.2d 986 (1976), and Robinson. See Erwin, 42 N.Y.2d at 1065. In Copeland, this Court upheld a search incident to an arrest for V.T.L. 509 (a traffic infraction). 39 N.Y.2d at 987. In Robinson, the Supreme Court explicitly rejected the Marsh rule under the federal Constitution and found that the search incident exception should apply equally to all arrests, including those for traffic infractions. 414 U.S. at 234-35. Moreover, the decision by the D.C. Circuit Court of Appeals (which the Supreme Court reversed) had in fact cited to Marsh in holding that an officer may not conduct a search incident to an arrest for a traffic infraction (as did Justice Marshall in his Robinson dissent). United States v. Robinson, 471 F.2d 1082, 1104 n.39 (D.C. Cir. 1972) (citing Marsh), rev’d, United States v. Robinson, 414 U.S. 218 (1973); see also Robinson, 414 U.S. at 246 (Marshall, J., dissenting) (citing Marsh). Thus, it is virtually impossible to conclude that the Erwin court was relying on Marsh in its decision—if anything, the Court was affirmatively 10 deciding not to confront the Marsh issue and was deciding the case wholly under Robinson. 3 Stripped of the Marsh claim, Respondent’s argument cannot survive a plain reading of Erwin. The District Attorney’s contention that “Erwin is not a pre- arrest case at all” (see Resp. Br. at 37) ignores the fact that an arrest was made, albeit after the search, which is why the search could not be upheld. Erwin, 42 N.Y.2d at 1065-66. Respondent’s attempt to distinguish Diaz from the present case similarly fails. The problem for the prosecution is that the Diaz dissent articulated the very view that the prosecution advances in this case—that “if the police had probable cause to arrest defendant before the search inside his pocket, the incident-to-arrest exception applies and the search is valid”—and extensively quoted the exact language from People v. Simon, 45 Cal. 2d 645 (1955), upon which the prosecution relies in its brief. Compare Diaz, 81 N.Y.2d at 113 n.* (Simons and Bellacosa, J.J., dissenting) (quoting Simon, 45 Cal. 2d at 648 (if probable cause exists prior to a search, “there is nothing unreasonable in [an officer’s] conduct if he makes the search before instead of after the arrest”)) with Resp. Br. at 17 3 On the other hand, the District Attorney’s claim that Marsh survived Robinson has intriguing implications, as it would mean that New York never fully embraced the Robinson “bright-line rule” as a matter of state constitutional law. This, however, would point to a narrower reading of the search incident exception in New York, not the broader reading that Respondent advances. 11 (same). The Diaz majority’s statement 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” demonstrates that the Diaz majority rejected the dissent’s view—and Simon’s holding—that the order of a search and custodial arrest did not matter. See Diaz, 81 N.Y.2d at 109. Were the prosecution’s view the law, the Diaz dissent would have prevailed, and the search of Diaz would have been constitutional. 4 These controlling precedents are fatal to Respondent’s proposed rule, and demonstrate that a search that precedes a lawful arrest is not protected by the blanket rule permitting warrantless searches after a custodial arrest. When a search comes before arrest, independent justification—which is undisputedly lacking in Mr. Reid’s case—is required. (App. Br. at 16-17.) 5 4 Respondent therefore cannot sidestep Diaz by mischaracterizing it as “dicta” given that the majority’s refusal to apply the search incident exception was necessary to the outcome of the case. See 28 N.Y. Jur. 2d Courts & Judges § 213 (defining dicta as “[a]ny statement, explanation, rationale, or observation not directly related or necessary to the outcome of a particular dispute”). 5 Respondent’s extended discussion of People v. Robinson, 97 N.Y.2d 341 (2001), and Whren v. United States, 517 U.S. 806 (1996), is irrelevant for the same reasons the Appellate Division’s reliance on these decisions was in error. (App. Br. at 34-38.) These decisions stand only for the proposition that an officer’s “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” People v. Robinson, 97 N.Y.2d at 349 (internal quotation marks and citation omitted) (emphasis added). That Officer Merino had probable cause to arrest Mr. Reid is not contested on this appeal, and so the People v. Robinson rule simply has no application. See People v. Johnson, 1 N.Y.3d 252, 257 (2003) (holding that the Appellate Division improperly applied People v. Robinson, which “govern[s] pretext stops” to an inventory search). 12 B. The Cases Respondent Cites Offer No Support for a Rule Permitting Searches “Incident To” a Later Arrest. It is no surprise that the District Attorney’s rule is utterly at odds with controlling precedent, as the District Attorney is fundamentally mistaken about the constitutional basis of the search-incident-to-arrest exception to the warrant requirement. Respondent asserts that probable cause to arrest provides the constitutional justification for a search incident to arrest, on the logic that a search is a “lesser” intrusion that requires no justification because probable cause to arrest authorizes the greater intrusion of an arrest. (Resp. Br. at 18.) This is wrong. As Mr. Reid’s opening brief explains, the law of this State and of the United States is that a search incident to arrest is an exception to the warrant requirement because the fact of an arrest creates a risk to officer safety and an exigent need to protect evidence from destruction. See Knowles, 525 U.S. at 116-17; Chimel v. California, 395 U.S. 752, 764 (1969); 6 People v. Blasich, 73 N.Y.2d 673, 678 (1989); People v. Belton, 55 N.Y.2d 49, 52-53 (1982); see also App. Br. at 16-17. While under federal law a search after an arrest is reasonable without any showing 6 The District Attorney cites to Chimel for the proposition that because an arrest is a lawful intrusion upon probable cause, a search “requires no additional justification.” (Resp. Br. at 14.) In fact, Chimel holds to the contrary, and explains that a search does require additional constitutional justification, grounded in “the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.” 395 U.S. at 764 (quoting Preston v. United States, 376 U.S. 364, 367 (1964) (internal quotation marks omitted)). 13 that either of these circumstances exist in a particular case, the United States Supreme Court has made it absolutely clear that this is because these circumstances arise out of “the fact of the lawful arrest,” not the authority to arrest (i.e., probable cause). Robinson, 414 U.S. at 235; see also Knowles, 525 U.S. at 118. Taking a suspect into custody as the initial step of an arrest is the essential fact that gives rise to the rule authorizing searches incident to arrest without a need for proof of exigent circumstances, and therefore is the essential prerequisite of such a search. Only by ignoring the foundation for the search incident doctrine and eliding the distinction between a “formal” arrest and a custodial arrest (which Mr. Reid explains in his opening brief, see App. Br. at 28-34) can the prosecution argue that this Court’s holding in People v. Evans allows a search to be protected by the search incident exception when it occurs prior to custodial arrest. For one, the Evans court emphatically explained that the authority to search comes into being after a custodial arrest: “Unless and until a person is arrested, a full body search without a warrant or exceptional circumstances is constitutionally unreasonable.” 43 N.Y.2d at 165. It borders on misleading to argue that the Evans court somehow held that “reversing the normal order of arrest and search presented no constitutional problem” (Resp. Br. at 16), when the Evans court did not do so but instead plainly conditioned a search upon a custodial arrest. As Mr. Reid’s 14 opening brief explains, and as the prosecution again ignores, Evans’ discussion of Sibron v. New York demonstrates that the Evans court permits a search to precede formal arrest, but only in situations where an arrest “for purposes of constitutional justification” had occurred before the search. Evans, 43 N.Y.2d at 166 (quoting Sibron v. New York, 392 U.S. 40, 67 (1968) (internal quotation marks and emphasis omitted)); see also App. Br. at 28. What is most unusual about the prosecution’s reading of Evans is that it implies that the violation occurred not when the officers conducted the search but rather when they let Evans go. This reading, however, does not make sense. A failure to arrest has never been deemed a constitutional violation. Moreover, had the failure to arrest been the violation, the evidence recovered from the search would not have been the “fruit” of that violation. See Evans, 43 N.Y.2d at 164, 167. Thus bereft of support from Evans, Respondent principally relies on three cases, none of which is from a New York court: United States v. Riggs, 474 F.2d 699 (2d Cir. 1973); United States v. Skinner, 412 F.2d 98 (8th Cir. 1969); and People v. Simon. Notably, each of these cases was decided before Cupp v. Murphy, 412 U.S. 291 (1973), and also before Robinson. The timing is significant. On the one hand, Cupp clarified that probable cause to arrest alone cannot justify a full Chimel search. Cupp, 412 U.S. at 296. On the other hand, prior to Robinson, 15 while a search incident to a lawful arrest had long been recognized as a warrant exception, courts were laboring under the assumption that the reasonableness of such a search still had to be demonstrated on a case-by-case basis. 7 By contrast, Robinson created a pragmatic “bright-line rule” which “was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern.” Knowles, 525 U.S. at 118. Thus, none of Respondent’s pre-Robinson cases can stand for the proposition Respondent advances, which is that a search prior to custodial arrest may be cloaked in a presumption of reasonableness without a specific showing of exigent circumstances—i.e., danger to police or imminent destruction of evidence. In Riggs, for example, the Second Circuit upheld a warrantless search of the camera case of a passenger about to board an airplane on two alternate grounds: first, that the officers had probable cause to arrest the defendant for possession of drugs and that there was a “need for immediate action to prevent the use of weapons against the arresting officer[s] or destruction of evidence of the crime”; and second, that the officers had a reasonable basis to fear that the defendant was 7 The rule as understood by the D.C. Circuit Court of Appeals in Robinson was that “the validity of searches and seizures under the Fourth Amendment turns upon their reasonableness, and since a warrant will not be available to insure that arrest-based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care.” 471 F.2d at 1091; see also Sibron, 392 U.S. at 59 (“The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”). 16 armed and that the camera case contained a weapon. 474 F.2d at 704-05. The Riggs court specifically found that exigent circumstances were present in that particular case, and thus had no occasion to rule—as Respondent would have it— that preexisting probable cause justifies a warrantless search in any circumstance so long as an arrest follows. The Eighth Circuit’s opinion in Skinner is equally unpersuasive. It was decided five days before the Supreme Court’s decision in Chimel, and it betrays no knowledge of the principles that the Supreme Court was about to enunciate. Instead, Skinner relies on a 1931 opinion, Husty v. United States, 282 U.S. 694 (1931), for the proposition that a search is valid as long as the search is based upon probable cause. See Skinner, 412 F.2d at 103 (citing Husty, 282 U.S. at 700). However, this outdated rule is contrary to Chimel as well as Cupp, and Respondent admits that it is not the law. Similarly, the California Supreme Court’s 1955 opinion in Simon is rooted in the pre-Chimel view that probable cause to arrest is sufficient to justify a warrantless search. See Simon, 45 Cal. 2d at 648. Simon is not the law of the United States, and this Court already considered and rejected it in Diaz. (See Part II.A, supra.) The remaining cases the District Attorney cites as permitting searches prior to arrest either rest on an independent justification for a search or concern a case where, although not “formally” arrested, the subject was under custodial arrest. 17 Rawlings v. Kentucky, 448 U.S. 98 (1980), stands as an example of a case where “formal arrest” may be postponed until after a search is conducted, provided that the defendant is under custodial arrest. The District Attorney’s argument that Rawlings’ custodial arrest could not serve as the prerequisite for the search “for the simple reason that the Supreme Court acknowledged that Rawlings’ ‘detention’ was illegal” (Resp. Br. at 40) misreads Rawlings and ignores the facts that provided probable cause for Rawlings’ arrest as well as the sequence of events recounted in that case. The Court did assume, without deciding, that the initial detention was illegal. Rawlings, 448 U.S. at 106. However, it concluded that the legality of Rawlings’ initial detention was immaterial because Rawlings’ confession to ownership of drugs the police discovered was an act of free will not prompted by any illegality in the detention. Id. at 106, 110. Because the confession was untainted by the prior illegality, probable cause to arrest Rawlings for the drugs existed and the continued detention became legal. The continued detention of Rawlings—after having been “Mirandized” and after confessing to owning drugs—was the custodial arrest which authorized the lawful search of Rawlings incident to arrest, as the Court held that “the formal arrest followed quickly on the heels of the challenged search.” Id. at 107, 111 (emphasis added). 8 8 The Rawlings court’s citation to Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967), further underscores that a search may not precede custodial arrest. See Rawlings, 448 U.S. at 111 (citing Bailey, 389 F.2d at 308). The Bailey court carefully distinguished between the (….continued) 18 People v. Landy and People v. Cruz, on the other hand, are examples of cases where the facts gave rise to an independent justification to conduct a warrantless search. In Landy, the police identified two knives (one of 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. 59 N.Y.2d 369, 372-73 (1983). In Cruz, this Court noted that Cruz engaged in “furtive movements” prior to the search, which would authorize a protective frisk for weapons. 43 N.Y.2d 786, 787 (1977). As Appellant’s opening brief explained at length, Landy cannot be read to overturn, in a single sentence, this Court’s search incident law. 9 (App. Br. at 32-33.) Respondent’s brief fails to rebut—or even acknowledge—these independent justifications for the pre-arrest searches. (continued….) “formal” arrest made after the search and the custodial arrest “in law” that occurred before the search. See 389 F.2d at 308. The cursory treatment of the search incident exception in United States v. Brown cannot undermine the later holdings of the Supreme Court in Robinson, Cupp, and Knowles and is admittedly in error, as Respondent characterizes Brown as holding that “the expressed basis for upholding the pre-arrest search was that at the time of the search, there was probable cause to arrest,” a rule that Respondent admits is contrary to law. See United States v. Brown, 463 F.2d 949, 950 (D.C. Cir. 1972); Resp. Br. at 27, 40. 9 Further, as this Court recently noted in People v. Jimenez, in some situations the nature of the crime for which probable cause exists may itself establish exigency, rendering it “unnecessary to particularize an independent source for the belief of danger.” — N.Y.3d —, 2014 N.Y. Slip Op. 01262 (Feb. 25, 2014) (quoting People v. Mack, 26 N.Y.2d 311, 317 (1970) (internal quotation marks omitted)). Applied to Landy, the fact that the police observed that Landy’s vehicle matched the description of a vehicle sought in connection with “several burglaries,” and that Landy matched the description of the burglar could establish exigency even if the officers had not observed the two knives. See Landy, 59 N.Y.2d at 373. 19 C. Respondent’s Rule Is Constitutionally Impermissible and Practically Unworkable Because It Leaves the Legality of a Search Indeterminate at the Time a Search Is Conducted. In addition to being utterly unfounded in the constitutional basis for the search-incident-to-arrest exception and being contrary to controlling precedent, Respondent’s rule leaves officers in the field bereft of clear guidance regarding when a search of a suspect is legal, given that the legality of a pre-arrest search would turn on later events—namely, whether the officer actually arrests the suspect. The prosecution does not dispute that the New York state constitution and the United States Constitution both require that a search be justified at its inception. (Resp. Br. at 33; see also App. Br. at 27.) Because the constitutionality of a search cannot be determined at its inception under the prosecution’s proposed rule, that rule must fail. As explained in Mr. Reid’s opening brief, any rule which conditions the legality of a search on an arrest after the search is necessarily indeterminate for the simple and inescapable reason that the legality of the search turns on later events. (App. Br. at 26-27.) The prosecution’s proposed rule is that a search is permissible prior to arrest when probable cause to arrest exists before the search and the suspect is arrested shortly after the search. Because the arrest comes after the search, neither the police officer nor the citizen being searched knows at the 20 moment the officer is actually carrying out the search whether the search is constitutionally reasonable, given that the constitutional basis for the search—a lawful custodial arrest—has not yet (and may never) come into being. Under the prosecution’s proposed rule, even the most learned judge standing beside the officer at the moment the officer’s hands extend towards the citizen would be unable to advise the officer as to whether the search is permissible. The reasonableness of the search depends on whether an arrest follows the search, but that would require the judge to know the future in order to advise the officer appropriately. The District Attorney’s only response to the conundrum its rule creates is to argue that the legality of the search is not indeterminate because the constitutionality of such a search is based on probable cause—i.e., that probable cause provides the justification for the search. (Resp. Br. at 33 (claiming that “[t]he constitutionality of a pre-arrest incident search derives from the existence of probable cause to arrest”).) This, of course, is incorrect, as this Court and the United States Supreme Court have repeatedly explained that the constitutionality of a search incident to arrest flows from the fact of an arrest, not from probable cause to arrest. Respondent cannot have it both ways, admitting (as it must) that probable cause to arrest does not suffice to justify a warrantless search and in the same breath arguing that a warrantless search is constitutionally justified based on 21 the existence of probable cause. The District Attorney never resolves this inconsistency, nor would it be possible to do so. One cannot honor the bedrock principle 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); People v. William II, 98 N.Y.2d 93, 98 (2002) (citing Terry, 392 U.S. at 20)—without (as Respondent ultimately admits) reducing Respondent’s rule to the idea that probable cause to arrest is all that is needed to search. As Respondent concedes, that is not the law. D. Respondent’s Proposed Rule Undermines Constitutional Safeguards Against Warrantless Exploratory Searches. The District Attorney’s proposed rule fares even worse as a policy matter, as the District Attorney’s rule would remove any deterrent to admittedly unconstitutional searches. Indeed, the direct effect of the proposed rule will create a vast new class of concededly illegal searches that will be beyond the reach of the exclusionary rule. It has been recognized for decades that the exclusionary rule is “the only effectively available way” to compel respect for the constitutional guarantee of liberty “by removing the incentive to disregard it.” Mapp v. Ohio, 367 U.S. 643, 655 (1961) (citing Elkins v. United States, 364 U.S. 206, 217 (1960)). The prosecution’s proposed rule, on the other hand, would encourage officers to conduct illegal searches by leaving the incentive to disregard the law completely 22 intact. Under the prosecution’s proposed rule, officers will freely make searches of anyone who has (or who probably has) engaged in a minor offense. If an officer finds evidence or a weapon, he can simply make an arrest, and the search will be validated. Accordingly, the exclusionary rule will not apply. On the other hand, if the officer finds nothing and thus chooses not to arrest, the search will indeed have been an unconstitutional violation of the citizen’s rights—but there will be no evidence to exclude. Both results are unacceptable, as the practical effect of the prosecution’s rule will be to immunize police officers from the exclusionary rule. The first outcome—where the officer elects to make the arrest after the search—is constitutionally troubling, because allowing arrest to be postponed until after a search risks that an officer will engage in exploratory searches with the knowledge that the search will be held reasonable if he elects to arrest. It does not require great imagination to anticipate in which cases an officer undertaking a search as part of the arrest decision will choose to effect an arrest; plainly, it will be the cases where, as here, the officer finds contraband. In reality, then, such arrests will be cases in which a search is ruled reasonable because it yielded evidence and thus prompted an arrest. This is an impermissible result that the Supreme Court has consistently and emphatically rejected: “We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” United 23 States v. Di Re, 332 U.S. 581, 595 (1948). To authorize a search as “incident to arrest” when the arrest is in fact prompted by the fruits of the search is a dangerous fiction that the courts have consistently, and rightly, refused to entertain. Of course, the second possibility—that the officer does not elect to arrest the subject of the search after conducting the search—presents the most constitutionally troubling outcome. Even the District Attorney admits that a search supposedly “incident to arrest” is unlawful if based only on probable cause to arrest and no arrest follows. (Resp. Br. at 27.) The obvious result of such a rule is that officers may search a suspect and, after finding no additional evidence, let the suspect go. The suspect’s rights will have unquestionably been violated, but the suspect will have no practical remedy other than the costly, uncertain, and likely ineffective remedy of a civil suit for money damages. The District Attorney foresees this outcome, but only responds that its proposed rule is salutary because it allows such warrantless and illegal searches to offer extrajudicial adjudication: if the officer finds nothing, he may decide not to arrest the suspect for the crime for which probable cause to arrest existed before the search, leaving the suspect “in a better position.” (Resp. Br. at 32.) The District Attorney presumably believes this is beneficial because the suspect has been subjected to an unlawful search without arrest, rather than a lawful arrest plus a lawful search. However, this subjects citizens of New York to a false choice between an unlawful search without arrest 24 and a lawful arrest plus a lawful search, but it ignores the third possibility—i.e., no unlawful search and no arrest. Under the law, absent other exigencies or justification, the possibilities are only arrest and search incident, or no search at all. The chance that some citizens may be happy to have their constitutional rights violated by an unlawful search if they are spared an arrest justified by probable cause is a glib, “no-harm-no-foul” approach to the intrusion upon a citizen’s rights. Such an approach would run roughshod over the sanctity that the law ascribes to the rights of citizens to be secure in their persons and free from unreasonable searches: [I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. Terry, 392 U.S. at 16-17. A rule that promotes concededly illegal searches in some cases, and that condones in other cases searches based on their success, is contrary to long- established precedent and dangerously undermines the courts’ ability to protect the citizens of New York from illegal and unreasonable searches. * * * The rule of this Court and the United States Supreme Court is that a warrantless search may be justified as a search incident to arrest only if a lawful 25 custodial arrest precedes the search. Where the subject of the search is not in custody before the search, the search requires an independent justification for an exception to the warrant requirement. It is undisputed that Mr. Reid was not in custody at the time of the search, and it is likewise undisputed that no independent justification for the search—such as a threat to officer safety or a need to preserve evidence—was shown. The hearing court and the Appellate Division therefore erred, and the decisions below must be reversed. POINT III. THE ISSUES ON APPEAL ARE PRESERVED FOR THIS COURT’S REVIEW. Perhaps recognizing the weaknesses in its arguments, the prosecution begins its brief by arguing that the issue on appeal is not preserved. The prosecution is incorrect in this regard. 10 This Court has consistently interpreted New York Criminal Procedure Law § 470.05(2) to permit an appeal of an issue “expressly decided” by the lower court, even in cases where the arguments on appeal were not plainly presented or the arguments below were general in nature. See People v. Feingold, 7 N.Y.3d 288, 290 (2006) (holding that even where a defendant’s 10 It is noteworthy that this is the first time that Respondent has raised this issue. Respondent did not raise the issue before the Appellate Division, nor did it raise the issue in its prior letter to this Court opposing Mr. Reid’s application for leave to appeal. 26 argument was not “plainly present[ed]” to the trial court, the argument is preserved where the “trial judge’s decision . . . demonstrates that he specifically confronted and resolved th[e] issue”); People v. Prado, 4 N.Y.3d 725, 726 (2004) (finding that a general objection, “when coupled with the trial judge’s specific findings,” was sufficient for the question to have been “expressly decided” by the trial court and preserved for appeal); People v. Edwards, 95 N.Y.2d 486, 491 n.2 (2000); People v. Jennings, 69 N.Y.2d 103, 124 n.9 (1986). The Court does not require a subsequent “protest” to be lodged to the lower court’s decision. Further, by challenging the constitutionality of Officer Merino’s search in his omnibus motion at the hearing and by seeking to suppress the fruits of the search, Appellant has lodged a “protest” sufficient to preserve his right to appeal. The case the District Attorney cites, People v. Martin, 50 N.Y.2d 1029 (1980), is inapplicable here. In 1986, N.Y. CPL § 470.05 was amended to preserve for appeal any issues that “the court expressly decided” in response to a protest by a party. 11 That language is the basis for Mr. Reid’s appeal, as the hearing court ruled that the search of Mr. Reid was valid as a search incident to arrest in response to Mr. Reid’s suppression motion, even though the prosecution did not argue that the search-incident-to-arrest exception applied. Martin, decided in 1980, thus has 11 N.Y. CPL § 470.05 (McKinney), Historical and Statutory Notes (“Subd. 2. L. 1986, c. 798, § 1, inserted ‘, or if in response to a protest by a party, the court expressly decided the question raised on appeal.’”) 27 been superseded by the 1986 revision to N.Y. CPL § 470.05, and necessarily has no bearing on the interpretation of the language governing this appeal and mandating that Mr. Reid has a right to challenge the express basis for the hearing court’s decision. CONCLUSION For the foregoing reasons, and for the reasons set forth in Appellant's brief, 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 March 13, 2014 DAVIS POLK & WARDWELL LLP By: ~arques 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 Peter R. Mitchell John Schoeffel Andrew C. Fine Of Counsel 199 Water Street New York, New York 10038 (212) 577-3300 Attorneys for Defendant-Appellant Graham Reid 28