The People, Respondent,v.Nelson Miranda, Appellant.BriefN.Y.February 11, 2016To be argued by FRANCES A. GALLAGHER (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. NELSON MIRANDA, Defendant-Appellant. (APL-2015-00015) BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. FRANCES A. GALLAGHER Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-7992 Fax: (646) 616-4992 May 11, 2015 i TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................... 1 QUESTION PRESENTED .............................................................................. 2 STATEMENT OF FACTS .............................................................................. 2 The Suppression Motion ....................................................................... 3 The Mapp/Dunaway Hearing ................................................................ 4 Arguments of Counsel ....................................................................... 6 The Suppression Ruling .................................................................... 7 The Trial ................................................................................................ 8 The People’s Case ............................................................................. 8 The Defense Case ............................................................................ 13 Summations ..................................................................................... 14 Verdict ................................................................................................. 14 Sentencing ........................................................................................... 15 The Appellate Proceedings .................................................................. 15 ARGUMENT THE PEOPLE FAILED TO JUSTIFY THE WARRANTLESS SEARCH OF APPELLANT’S SATCHEL AS A VALID SEARCH INCIDENT TO ARREST BECAUSE NO EXIGENCY EXISTED AT THE TIME OF THE SEARCH; APPELLANT WAS HANDCUFFED AND FULLY COOPERATIVE AND THE OFFICER WAS IN POSSESSION OF THE SATCHEL. U.S. CONST., AMENDS. IV, XIV; N.Y. STATE CONST., ART. I, §12. ........................................ 16 CONCLUSION .............................................................................................. 46 ii TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Gant, 556 U.S. 332 (2009) ................................................... Passim Arkansas v. Sanders, 442 U.S. 753 (1979) .................................................... 23 California v. Acevedo, 500 U.S. 565 (1991) ................................................. 19 Chimel v. California, 395 U.S. 752 (1969) .......................................... Passim New York v. Belton, 453 U.S. 454 (1981) ............................................ Passim United States v. Chadwick,433 U.S. 1 (1977), ...................................... Passim United States v. Edwards, 415 U.S. 800 (1974) ............................................ 22 United States v. Katz, 389 U.S. 347 (1967) .................................................. 18 United States v. Robinson, 414 U.S. 218 (1973) .................................... 22, 26 STATE CASES Matter of Freddy S. 84 A.D.3d 687 (1st Dept. 2011)............................... 16, 43 People v. Belton, 50 N.Y.2d 447 (1980) ............................................... Passim People v. Belton, 55 N.Y.2d 49 (1982) ......................................................... 19 People v. Calhoun, 49 N.Y.2d 398 (1980) .................................................... 19 People v. DeSantis, 46 N.Y.2d 82 (1978) ..................................................... 40 People v. Evans, 84 A.D.3d 573 (1st Dept. 2011) ........................................ 36 People v. Febres, 118 A.D.3d 489 (1st Dept. 2014) ................................ 16, 43 People v. Gokey, 60 N.Y.2d 309 (1983) ............................................... Passim People v. Hodge, 44 N.Y.2d 553 (1978) ....................................................... 19 iii People v. Jenkins, 24 N.Y.3d 62 (2014) .................................................. 31, 34 People v. Jimenez, 22 N.Y.3d 717 (2014) ............................................. Passim People v. Johnson, 59 N.Y.2d 1014 (1983) ................................................... 31 People v. Julio, 245 A.D.2d 158 (1st Dept. 1997) ........................................ 35 People v. Miranda, 44 Misc. 3d 140A, 2014 N.Y. Slip Op 51289(U) (N.Y. Sup. Ct. App. Term 1st Dept. 2014) ........................ 1, 16, 41 People v. Morales, 126 A.D.3d 43 (1st Dept. 2015) ..................................... 35 People v. Prado, 4 N.Y.3d 725 (2004) .......................................................... 45 People v. Rosado, 214 A.D.2d 375 (1st Dept. 1995) .................................... 39 People v. Smith, 22 N.Y.3d 462 (2013) ........................................................ 45 People v. Smith, 59 N.Y.2d 454 (1983) ................................................ Passim People v. Wylie, 244 A.D. 2d 247 (1st Dept. 1997) ............................... 39-40 State v. Gant, 216 Ariz. 1 (2007) ................................................................... 24 STATUTES C.P.L. §470.05(2) ...................................................................................... 2, 45 P.L. §110.00 ................................................................................................. 1, 2 P.L. §140.35 ................................................................................................. 1, 2 P.L. §145.00(1) ............................................................................................... 2 P.L. §155.25 ................................................................................................. 1, 2 iv CONSTITUTIONAL PROVISIONS N.Y. State Const., Art. I, §12 ............................................................. 2, 18, 28 U.S. Const., Amend. IV ............................................................................. 2, 18 U.S. Const., Amend. XIV ......................................................................... 2, 18 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : NELSON MIRANDA, : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman granted on January 14, 2015, (Appendix [“A.”]A.1), appellant appeals from an order of the Appellate Term, First Department, entered August 22, 2014, People v. Miranda, 44 Misc. 3d 140 (A), 2014 NY Slip Op 51289(U) (N.Y. Sup. Ct. App. Term, 1st Dept. 2014) (A.2-A.4), which affirmed a judgment of the Criminal Court of the City of New York, New York County, convicting appellant after a non-jury trial, of six counts of attempted criminal possession of burglar’s tools (P.L. §§110.00/140.35) and three counts of attempted petit larceny (P.L. §§110.00/155.25). Appellant was sentenced to 45 days in jail and has fully served his sentence. 2 The issue raised herein presents a question of law within the meaning of C.P.L. §470.05(2). The propriety of the warrantless search of appellant’s satchel is preserved for this Court’s review by appellant’s suppression motion, which requested an order suppressing all evidence recovered from appellant on the ground that the police officer had stopped and searched appellant without a warrant or any other lawful authority and by the court’s denial of the motion, on the ground that the search of the satchel was proper as a search incident to a lawful arrest. QUESTION PRESENTED Whether the People failed to justify the warrantless search of appellant’s satchel as a valid search incident to arrest because no exigency existed at the time of the search; appellant was handcuffed and fully cooperative and the officer was in possession of the satchel. U.S. Const., Amends. IV, XIV; N.Y. State Const., Art. I, §12. STATEMENT OF FACTS Appellant was initially charged by way of a misdemeanor information with seven counts of possession of burglar’s tools (P.L. §140.35), three counts of fourth-degree criminal mischief (P.L. §145.00(1)), and three counts of attempted petit larceny (P.L. §§110/155.25). According to the complaint, a police officer had observed appellant attempting to damage several bicycle locks on October 14, 2010 in Greenwich Village, and the 3 officer later recovered various tools. The People later filed a Prosecutor’s Information, consolidating two of the burglars’ tools counts and reducing each of the burglars’ tools and mischief counts to B-misdemeanor attempts of the underlying crimes. Each of the six counts of attempted possession of burglars’ tools applied to one tool and included possession of the hacksaw, needle-nose pliers, non-needle nose pliers, a yellow handled screwdriver, a green handled screwdriver, and a pair of rubber gloves. Each of the three attempted petit larceny counts applied to one bicycle, and each mischief count applied to a bicycle lock. The Suppression Motion Counsel requested “an Order suppressing all evidence flowing from the unlawful seizure of the defendant as the evidence was obtained in violation of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the New York State Constitution.” Defense counsel argued that the evidence should be suppressed because appellant had “not engaged in any criminal conduct” and “was stopped and searched without a warrant, his consent, or any other lawful authorization” (Omnibus motion, ¶18 and 19; A.5). 4 The Mapp/Dunaway Hearing Officer Scott Ward and his companion, Officer Patrick Sweeney, were dressed in plain clothes, driving an unmarked car on October 15, 2010 at about 11 p.m. (35; A.13). They were driving around, when they saw appellant at the northeast corner of Washington and West 11th Street (36). Appellant was standing in front of a bicycle using what Ward assumed to be a tool, but which Ward could not see (36, 78; A.14, A.56). Ward left the car and entered a restaurant from where he watched appellant through the window (38; A.16). Ward watched appellant for about 10 or 15 minutes. According to Ward, appellant would pace back and forth and, then, stand in front of a bicycle locked to a fence in front of an apartment building. Appellant seemed to be utilizing some sort of tool “that was inside his sleeve which I couldn’t tell what type of tool it was at the time, holding a lock and moving his hands and arm back and forth” (36-39, 106; A.14-17, A.84). Appellant would stop what he was doing when pedestrians passed (40; A.18). Appellant spent about 10-15 minutes near this first bicycle (70; A.48). Appellant then walked east on West 11th Street for about two minutes before stopping at a second bicycle, acting as he had with the first bicycle, and spending about a minute there (64-65, 81, 82; A.42-43, A.59, A.60). 5 Appellant then left the second bicycle, walking about a block east and stopping at a third bicycle, repeating the same conduct. Ward followed appellant down the street and radioed Sweeney that he was going to stop appellant. Appellant was wearing a brown hooded coat and cap; Ward had not seen any bags on appellant. Ward approached appellant from behind, saying, “Police. Don’t move” and grabbed his arms (41, 84, 87; A.19, A.62, A.65). As Ward did that, appellant dropped something that turned out to be a hacksaw. It dropped from his hand and fell between two parked cars. As Ward ordered appellant to stop, Ward’s partner Sweeney approached them (83; A.61). After Ward had grabbed appellant from behind by his arms and the hacksaw had fallen, Ward placed appellant’s arms on the hood of a car, and, then, proceeded to handcuff him. Appellant fully cooperated. When the officers recovered the hacksaw from the ground, they saw that the hacksaw was broken and its blade was separated from its frame (43, 53; A.21, A.31). Ward then frisked appellant, and determined that he had a bag underneath his coat (42, 43, 84, 87; A.20, A.21, A.62, A.65). Ward could not ascertain the bag’s contents. Ward frisked appellant “to locate weapons, possible threats for myself and my partner” (41,42, 84-85, 88; A.19, 20, 62, 63, 66). 6 Ward testified that the officers handcuffed appellant “before [they] got the bag off of him and before they searched it” (86-87; A.64-65). The satchel was not see-through and was closed; Ward did not recall whether it was zippered, but estimated its size as 18”x3”x9” (79, 88; A.57, 66). Ward opened the satchel and removed the tools, which they later vouchered, and Ward identified them in court (43’ A.65). The tools included two flathead screwdrivers, one pair of needle nose pliers and one pair of regular pliers and a pair of rubber gloves. Ward never vouchered the bag itself as evidence (89; A.67). Later, the police officers returned to the bicycles and examined them. The lock on the first bicycle was sawed through halfway; the other two locks were only scratched (45; A.23). They left notes on the bicycles, but never heard from anyone (46; A.24). Ward had lost his memo book; he kept it at the precinct and it had disappeared (46, 52; A.24; A.30). Arguments of Counsel The prosecutor argued that the police had probable cause to arrest appellant based on the fact that he “saw burglar tools, based that he knew that the defendant was using the tools to do something to the bikes. The fact that the defendant claimed that . . . one of the bikes belonged to him that 7 would make sure for the first bike. It wouldn’t make sense for the second bike. It wouldn’t make sense for the third bike” (94; A.72). Defense counsel argued that the officers had only seen appellant’s hand moving back and forth, behavior that had many innocent interpretations and may have provided a sufficient predicate for further inquiry but not for placing him on an auto, frisking him, and handcuffing him (96-97; A.74-75). They went beyond the limits set forth in People v. DeBour, 40 N.Y.2d 210 (1976) (98; A.76). The Suppression Ruling The court found Ward to be credible and ruled that the police had probable cause to arrest appellant. The court factored the lost memobook into Ward’s credibility (104; A.82). The court characterized the search of the satchel as a “search incident to a lawful arrest” (99, 105; A.77, 83). The court found that “this search incident to a lawful arrest was conducted for any number of reasons”: it “was appropriate for the officer to make this search given the fact that the defendant, at a minimum, had secreted a very dangerous tool on his person, which he dropped at the time of his stop, but it was also quite appropriate for any number of other reasons which are abundantly clear given the types of tools that were recovered and the type of activity that the defendant was involved in and . . . the bag which 8 was seized by the police could have easily held the types of tool which would further criminal offenses in which the defendant was then involved” (105-106; A. 83-84). The Trial Before trial, the court said that it would give itself an adverse inference charge at trial as to the condition of the locks because the locks would not be produced at trial and the officers had not photographed them (42; A. 85). The People’s Case Police Officer Scott Ward testified that, on October 15, 2010, at about 11:30 p.m., Ward and his companion, Officer Patrick Sweeny were driving in an unmarked car in the West Village and noticed an individual on West 11th Street looking up and down the street, actions that they regarded as suspicious (85-87; A,86-88). Both officers were dressed in plain clothes. Lights were shining in front of the building on the northeast corner of West 11th Street where appellant was standing (88, 96; A.89,93). Ward left the patrol car and entered a restaurant so that he could watch appellant from inside, while communicating with Sweeney by radio (87-89; 108-09; A.88-90, 99-100). He saw appellant standing in front of a bicycle, holding a lock in his hand, and making a motion. Appellant would 9 stop if someone walked by (94, 96-98, 103; A.91, 93-95, 99). Appellant then walked east about 10 feet and repeated the motions near a second bicycle (99-100; A.96-97). Defendant walked about a block to West 4th and Bleecker Streets and repeated his actions on a third bicycle (100; A.97), Ward followed him and never lost sight of him (101, 109; A.98-100). Later, Ward testified that the third bicycle was about two blocks from the restaurant where Ward had first stood. Ward walked up to appellant and said, “Police, Don’t move,” grabbed him from behind by both of his arms, and placed his arms on top of a parked car. Appellant complied with all of Ward’s instructions, and a hacksaw dropped from his sleeve to the ground between two parked cars. The blade was not attached to the handle (122, 123, 128, 141, 171, 179, 195, 198-99; A.101, 102, 107, 114, 121, 122, 124, 126, 127). Ward handcuffed appellant about five seconds after grabbing him (196; A.125). Ward frisked appellant to determine whether he was carrying weapons that would be a threat and felt a bag or satchel, under his coat. Over his shoulder and inside the satchel, Ward found two screwdrivers, two pairs of pliers, and a pair of rubber gloves (123-24, 134, 171, 196; Ex. 7, tools entered into evidence over defense objection, p. 132; A.102-103, 110, 121, 125, 109). 10 Ward opined that these tools could be used for pushing in, and cutting, locks, and retrieving property, while gloves can be used for concealing fingerprints; all can also be used in building maintenance (135, 195; A.111, 124). Later, the officers returned and examined the locks. The first lock was a hard steel lock with a black rubber cover. There were cut marks like those made by saw on the first lock about half way through the bolt (139; A.112). Ward could only recall slight scratches “indicative of a saw” on the second lock (140; A.113). Ward could not recall the third lock, but recalled slight scratches (140; A.113). He did not know what the locks looked like earlier in the evening and had never compared the blade to the damage on the locks (194; A.123). He left notes on the bicycles with his name, telephone number, and precinct, but never received any messages (148; A.115). Ward had lost his memo book, but never reported that it was lost (150; A.116). Ward did not obtain footage from security cameras because he had not noticed any (158; A.117). He never went into any of the buildings to speak to anyone (158; A.117). He did not use his cellphone to take photographs of the damage to the locks (161; A.118). The accusatory instrument signed by 11 Ward did not mention damage to the locks and mentioned only one location (164, 166; A.118,120). Ward did not voucher the bag itself as arrest evidence (171; A.121). Police Officer Patrick Sweeney testified (February 16, 2011). On the night of October 15, 2010, at around 11:30 p.m., he and Officer Ward were in plain clothes and driving in an unmarked car in the West Village, and they noticed appellant standing on the street scanning the block about 20 feet away, left to right and up and down. Appellant would stop doing what he was doing when people walked by. Ward left the car and entered a restaurant in order to observe appellant, while Sweeney parked nearby. Sweeney left the car, walked back, stood between vehicles and watched appellant. The street was well lit by street lamps and building lights, and Sweeney saw appellant “huddled over a bicycle,” making a “sawing motion,” i.e., his arm bent at a 90 degree angle was moving back and forth (13-16; A.128-131). When appellant turned around, Sweeney saw that appellant was holding a hacksaw and was trying to repair it because the blade was hanging off (15; A.130). Appellant then turned back toward the lock and resumed the “back and forth” motion with his arm. Appellant turned once again, and Sweeney saw that the blade was hanging from the 12 frame. Sweeney had been observing appellant for about a minute. Appellant tried to adjust the hacksaw and walked off, traveling east (15-16; A.130-131). Appellant walked toward another bicycle that was chained and repeated his motions. The hacksaw again broke, and appellant again attempted to repair it. Appellant then resumed walking east on the north side of the street, looking around and back. Sweeney followed him, walking on the south side of the street (17; A.132). Appellant stopped at another bicycle chained to a fence and repeated the back and forth motion, holding a hacksaw (18; A.133). When pedestrians walked by, and as appellant walked from bicycle to bicycle, appellant would place the hacksaw inside his jacket (18). Sweeney and Ward were in radio contact and Sweeney told Ward about the hacksaw (44-45; A.137-138). Sweeney never saw appellant carrying anything besides the hacksaw (63; A.142). Sweeney recalled that Ward handcuffed appellant immediately upon being stopped (46; A.139). Sweeney saw the bag over appellant’s shoulder and recalled that the bag was taken off of him prior to Ward handcuffing appellant (46-47; A.139-140). Before they stopped appellant, Sweeney had never seen the satchel and had obviously never seen appellant opening the satchel or removing anything from the satchel or placing anything in the 13 satchel and had never seen him carrying any of the tools found in the satchel (63; A.142). Later, when Sweeney examined the bicycle locks, he saw that the first lock had a groove cut, not quite halfway through (32; A.135). The second and third bicycles were chained, and Sweeney noticed scratches on the chain of the second bicycle and nothing on the chain holding the third bicycle (32; A.135). Sweeney had not vouchered the locks (38; A.136). The first two bicycles were parked on West 11th Street between Washington and Greenwich; the third between West 4th and Bleecker Street, a different block about two blocks away (51, 80; A.141, 148). The three bicycles appeared to be in rideable condition, and were clean with nothing missing (24; A.134). Neither the locks nor lock photographs were introduced into evidence. The Defense Case Lisa Yi, an investigator with the Legal Aid Society, took photographs of building in the area; two of the buildings had security cameras although Yi did not know if they were working (71-76; 81-87; 88; A.143-148, 149- 155, 164). 14 Summations Defense counsel pointed to inconsistencies in the officers’ testimony and to poor investigation. Sweeney had testified to 3 bicycles in 3 blocks whereas Ward testified about 3 bicycles in one block. The first accusatory instrument mentioned one location; the second mentioned three (31; A. 159). The police had carried out no investigation, taking no photographs and failing to check for security cameras (23; A. 157). The tools from the satchel had innocent uses (29; A. 158). The prosecutor argued that the owners did not want their bicycles stolen and so placed locks on them. The prosecutor argued that not only had they proved that appellant possessed tools that are commonly used in thefts, but that he had intended to use the tools to attempt to steal the bicycles (41, 44; A.160, 161). Verdict The court acquitted appellant of three counts of attempted fourth- degree criminal mischief, but found appellant guilty of the six counts of attempted possession of burglar’s tools, and three counts of attempted petit larceny (52-53; A.162-163). 15 Sentencing The court sentenced appellant to 45 days of incarceration for the first count of attempted possession of burglar’s tools - - the hacksaw - - to run concurrently to 45-day sentences imposed on two of the three attempted petit larceny counts. The court sentenced appellant to time served on counts 2 through 6 -- the attempted possession of burglar’s tools in the satchel – as well as count 12, the last attempted petit larceny count. (Sentencing minutes, p. 8; A. 164) The Appellate Proceedings On appeal, appellant argued, inter alia, that the burglar’s tools should have been suppressed because no exigent circumstances existed that would have justified the police warrantless search of appellant’s closed satchel as a search incident to appellant’s arrest. The Appellate Term, First Department, disagreed, unanimously affirming the convictions on August 22, 2014. With respect to the suppression issue, the Appellate Term characterized appellant’s satchel as a backpack and justified its search because it was in appellant’s “grabbable area” at the time of his arrest. The court said: Defendant’s suppression motion was properly denied. The police lawfully searched defendant’s backpack as incident to what defendant concedes was a lawful arrest (see People 16 v. Smith, 59 N.Y.2d 454 (1983); Matter of Freddy S. 84 A.D.3d 687, 688 (1st Dept. 2011); cf. People v. Jimenez, 22 N.Y.3d 717 (2014); People v. Febres, 118 A.D.3d 489 (1st Dept. 2014). The arrest and search were contemporaneous, the backpack was large enough to contain a weapon and was within defendant’s grabbable area at the time of his arrest soon after police saw him discarding a hacksaw, and the surrounding circumstance supported the reasonableness of the testifying officer’s stated fear for his safety. Miranda, 140 Misc.3d 140(A) (A.2-4). ARGUMENT THE PEOPLE FAILED TO JUSTIFY THE WARRANTLESS SEARCH OF APPELLANT’S SATCHEL AS A VALID SEARCH INCIDENT TO ARREST BECAUSE NO EXIGENCY EXISTED AT THE TIME OF THE SEARCH; APPELLANT WAS HANDCUFFED AND FULLY COOPERATIVE AND THE OFFICER WAS IN POSSESSION OF THE SATCHEL. U.S. CONST., AMENDS. IV, XIV; N.Y. STATE CONST., ART. I, §12. Both the federal and state constitutions protect a person’s right to be free from unreasonable searches and seizures and also provide that warrants may be issued only upon probable cause. Warrantless searches are always presumed to be unreasonable, and the People always have the burden of overcoming this presumption of unreasonableness and demonstrating that an exception to the warrant requirement applies. One such exception to the warrant requirement is the search incident to arrest exception. A warrantless 17 search of a container carried by an arrestee can be justified only by the existence of at least one of two exigencies – that the officer needed to search for, and secure, a weapon in order to ensure the safety of the officers or public or the officers needed to search for, and secure, evidence to prevent its destruction or concealment. According to the United States Supreme Court, the warrantless search must be related to, and commensurate with, these two exigencies, and, thus, the reasonableness of the search must be evaluated at the time of the search. The Court has, therefore, concluded that if the arrestee is secured or the container to be searched is in the possession of the police at the time of the search, the arrestee cannot gain access to the items to be searched, the two exigencies cannot exist, and the search incident to arrest exception to the warrant requirement cannot apply. In this case, the People failed to justify the warrantless search of appellant’s satchel by establishing that one of the two exigencies existed at the time of the search. Two police officers followed appellant around Greenwich Village because they saw him making sawing motions near bicycle locks. After some time, the officers stopped appellant, ordering him not to move, and a broken hacksaw fell out of his sleeve onto the ground. The officers placed appellant on the hood of a car, frisked him, and handcuffed him; appellant was completely cooperative. The officers took 18 his satchel away and opened it and searched it, finding what the officers characterized as burglar’s tools. Although the officer who testified at the suppression hearing claimed that he frisked appellant because he feared for his safety and the safety of his partner, the officer never claimed that he feared for their safety at the point of the search -- after appellant had been handcuffed and the officers had possession of the satchel – the correct point at which to evaluate the existence of the exigencies. Since at the time of the search, appellant was handcuffed and the satchel was in the hands of the police, the satchel was inaccessible to appellant, and neither exigency could exist. Consequently, the search incident to arrest exception to the warrant requirement did not apply, and the evidence obtained from the satchel should have been suppressed. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I, §12. Both the Fourth Amendment to the United States Constitution and Article I, §12 of the New York State Constitution provide that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” Both also provide that “no warrants should issue, but upon probable cause.” Warrantless searches are presumptively unreasonable. People v. Jimenez, 22 N.Y.3d 717 (2014); United States v. Katz, 389 U.S. 347 (1967). 19 If the state wishes to justify a warrantless search, it has the burden of overcoming the presumption of unreasonableness by demonstrating that the search falls within one of the specifically established exceptions to the warrant requirement. Id.; People v. Hodge, 44 N.Y.2d 553, 557 (1978); People v. Calhoun, 49 N.Y.2d 398, 402 (1980); Chimel v. California, 395 U.S. 752, 762 (1969) (“the burden is on those seeking an exemption for a warrantless search to show the need for it”). One such exception is a search incident to a lawful arrest. People v. Belton, 55 N.Y.2d 49, 52 (1982); People v. Gokey, 60 N.Y.2d 309 (1983); United States v. Chadwick, 433 U.S. 1, 14 (1977), overruled in part on other grounds by California v. Acevedo, 500 U.S. 565 (1991); Chimel, 395 U.S. 752. The United States Supreme Court Analysis of The Search Incident to Arrest Exception to The Warrant Requirement The United States Supreme Court has long held that a warrantless search of a container incident to arrest can only be justified if the search is necessary to find and remove weapons that the arrestee might seek in order to resist the arrest or to find evidence that the arrestee might seek to conceal or destroy. Chimel, 395 U.S. at 762-763; Chadwick, 43 U.S. 1; Gant, 556 U.S. 332. If the arrestee cannot gain access to the area to be searched at the time of the search, then he cannot gain possession of a weapon or evidence. 20 Under these circumstances, neither of the reasons that justify a search incident to arrest can exist, and a warrantless search is unreasonable. Id. The starting point for analyzing a search incident arrest is often Chimel, which set forth the “proper extent” of a reasonable search incident to arrest. The Court considered the search of Chimel’s entire house incident to his arrest and found it to be unreasonable. The Chimel Court explained that searches incident to arrest are justified by only two exigencies, saying: [W]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might seek in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Chimel, 395 U.S. at 763 (emphasis added). According to the Court, the exigencies must truly be exigencies in order to justify a search incident to arrest; absence of a warrant is excusable only if the State can show that “the exigencies of the situation made that course imperative” Chimel, 395 U.S. at 76 (quotations and citations omitted). The Court went on to say that, “in general, the scope of a search must be strictly tied to, and justified by, the circumstances which rendered its initiation permissible” Chimel, 395 U.S. at 762-763 (internal quotation 21 marks and citations omitted). The Court then concluded that the two rationales justifying a warrantless search incident to arrest - - officer safety and preservation of evidence - - allowed a search incident to arrest of “the arrestee’s person and the area ‘within his immediate control’ - - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763. The Chimel Court concluded that the search of Chimel’s entire house had gone far beyond the area from within which he could have obtained a weapon or destroyed evidence, and held that the search beyond that area was unreasonable and was unjustifiable in the absence of a warrant. Id. at 768. In Chadwick, 433 U.S. 1, the Court considered a search of the arrestee’s personal property - - a footlocker, as incident to an arrest. The police had searched the arrestee’s footlocker at the station house more than an hour after the arrest and when the suspects were in custody. The Court reiterated that the two Chimel exigencies are the only two justifications for a search of containers incident to arrest and reiterated its belief that if the arrestee cannot access the area to be searched at the time of the search, there can be no reasonable concern that the exigencies exist, saying: [W]arrantless searches of luggage or other property seized at the time of the arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest or 22 no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer incident of the arrest. Id. at 15 (internal citations and quotation marks excluded; emphasis added). The Chadwick Court also distinguished searches of possessions from searches of the person considered in United States v. Robinson, 414 U.S. 218 (1973) and United States v. Edwards, 415 U.S. 800 (1974), saying that, unlike searches of the person, “searches of possessions within arrestee’s immediate control cannot be justified by any reduced expectation of privacy caused by the arrest.” Chadwick, 433 U.S. at 16, fn. 10.1 1 In the interim between its decisions in Chimel and Chadwick, the Court had decided United States v. Robinson, 414 U.S. 218 (1973), a case that considered a search of an arrestee’s person incident to arrest. The Court in Robinson distinguished the two categories of the search incident exception - - searches of possessions within the arrestee’s control and searches of the arrestee’s person. Id. at 224-225. The Court stated that it was considering only the search of the person category and held that search of the person incident to arrest was always justified by the two exigencies and, as such, was always reasonable. Id. at 236. Such a search also did not constitute a greater intrusion into the person’s privacy than did the arrest. Id. Robinson is not, therefore, applicable here, not only because Robinson explicitly stated that it was not considering a search of an arrestee’s possessions, but also because, as discussed above, Chadwick stated that while an arrestee may have a reduced expectation of privacy in his person as a result of his arrest, the arrestee did not have a reduced expectation of privacy in his possessions. Chadwick, 433 U.S. at 16, fn. 10. 23 Subsequent to these cases, the Supreme Court decided New York v. Belton, 453 US. 454 (1981). A single police officer had stopped a speeding car. After smelling marijuana, he ordered four occupants out of the car, placed them under arrest, but did not handcuff or restrain them; the officer then searched the passenger compartment of the car and found cocaine in a jacket in the back seat. The New York State Court of Appeals, relying on Chimel, Chadwick, and Arkansas v. Sanders, 442 U.S. 753 (1979) found the search to be unreasonable. People v. Belton, 50 N.Y.2d 447 (1980). This Court found that the “privacy interest of the arrestee in an object remains intact once he is effectively neutralized or the object is within the exclusive control of the police. At that point, any exigency which would otherwise have justified a warrantless search has been dissipated and the search is no longer incident to the arrest.” Id. at 451 (citation omitted). “The critical inquiry focuses upon the extent to which the arrestee may gain access to the property rather than the time or space between the arrest and search.” Id. (citation omitted). This Court concluded that because the defendant was under arrest and the private receptacle was in the vehicle that was within the control of the police, the search was not justified. The Supreme Court reversed, see New York v. Belton, 453 U.S. 454 (1981), finding that the search was reasonable 24 under Chimel, and holding that officers could search the passenger compartment of an automobile and any containers therein, as a search incident to a lawful arrest. This rule was often interpreted as permitting a search as incident to arrest “even if there [was] no possibility the arrestee could gain access to the vehicle at the time of the search.” Arizona v. Gant, 556 U.S. 332, 341 (2009). The Supreme Court in Gant reexamined its holding in Belton, and acknowledged, but rejected, that widely shared interpretation of Belton. In Gant, the Supreme Court considered a search of a passenger compartment of a vehicle while the suspect was handcuffed and locked in a patrol car. The State Court in State v. Gant, 216 Ariz. 1 (2007) had refused to apply Belton. In the Arizona state court’s view, the question before the Supreme Court in Belton was the permissible scope of a lawful search justified by the Chimel exigencies. In other words, the exigencies were present, the search was lawful; the question in Belton was the “proper extent of the search.” According to the State court, Gant was “[u]nlike Belton” because Gant dealt “not with the permissible scope of the search of an automobile - - the issue in Belton - - but with the threshold question of whether the police may conduct a search incident to arrest at all once the scene is secure.” Id. at 3-4. The Arizona Court in Gant found that since the suspects were handcuffed 25 and in patrol cars, the Chimel exigencies could not exist and the search was unreasonable. Id. The United States Supreme Court in Gant, quoting Chimel, seemed to agree, reaffirming that a search incident to arrest may only include “the arrestee’s person and the area within his immediate control - - construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.” Gant, 556 U.S. at 339; Chimel 395 U.S. at 763. That limitation (the area from which the arrestee might gain possession of a weapon or evidence), “which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the arrest offense that an arrestee might conceal or destroy.” Gant, 556 U.S. at 339. According to Gant, Chimel noted that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent the concealment or destruction” of evidence. (emphasis supplied by the Gant Court). From this, the Court concluded, “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search incident to arrest exception are absent and the rule does not apply.” Gant 26 556 U.S. at 339. The Gant Court reasoned that if Belton were interpreted as permitting a passenger compartment search at every arrest, the rule would be “untether[ed] . . . from the justifications underlying the Chimel exception” and that was inconsistent with Belton and unacceptable. Id. at 343. Consequently, the Gant Court held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only where the arrestee is unsecured and within reaching distance of the passenger’s compartment at the time of the search.” Gant, 556 U.S. at 343 (emphasis added). Thus, not only did Gant craft a rule that was attached to its underlying rationale of protecting officers and evidence, Gant also clarified the point at which the reasonableness of a search was to be measured - - “the time of the search.” See ante; Id. at 343.2 2 The holding of Gant is, of course, not to limited to automobile searches. The Gant Court introduced its discussion as a discussion of the search incident to arrest exception to the warrant requirement, in general, citing Weeks v. United States, 232 U.S. 383 (1914), Robinson, and Chimel, non-auto cases. Gant, 556 U.S. at 338, The Court then found that the common interpretation of its decision in Belton was incorrect because it allowed the scope of the search-incident exception in automobile searches to exceed what was allowed by Chimel, id at 343, when, in fact, the search-incident exception in automobile and non-automobile cases should be equated. Id. at 339. They are equated because, in either case, the scope of the exception had to be related to, and “commensurate with” the “justifications underlying the Chimel exception” officer safety and preservation of evidence. Gant, 556 U.S. at 339, 343. The Gant Court then designed its holding in accordance with the principles set forth in Chimel, a house search case, and found that if the contents of the container were inaccessible to the arrestee at the time of the search, the danger to the officers had abated and officer safety could not, therefore, be used to legitimize the search. Nothing in this analysis is peculiar to automobile searches. See also LaFave, Search and Seizure §5.5(a), pp. 296-97 (5th ed.) (Gant requirement that search-incident to arrest is authorized only 27 The Gant Court went on to say that it would be a “rare case” in which a suspect would have access to a container at the time of the search because officers ordinarily take steps to prevent such access at the time of arrest. Id. fn. 4.3 Thus, applying the principles of Chimel, Chadwick, and Gant, if, at the time of the search, the police have handcuffed the arrestee, or are in possession of a container carried by him, so that its contents are inaccessible to him, any warrantless search would be divorced from the exigencies justifying the Chimel search incident to arrest exception to the warrant requirement - - safety of the officers and preservation of evidence - - and would be unreasonable within the meaning of the Fourth Amendment.4 where arrestee is unsecured and within reaching distance of the thing to be searched at the time of the search is applicable “in any case where the search of a container is purported to be incident to the arrest of the person who possessed it.”) 3 The Court in Gant also concluded that under “circumstances unique to the vehicle context” a search incident to arrest will be justified if it is reasonable to believe that “evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 556 U.S. at 343. This additional rationale that the court specifically limited to a search of a vehicle incident to arrest is obviously inapplicable here, a non-vehicle search. 4 In fact, the Supreme Court’s holding in Gant is based on an analysis remarkably similar to the analysis of this Court in Belton, 50 N.Y.2d at 451. Both courts examine the reasonableness of the search at the time of the search and both courts find that the exigent circumstances that justify a search incident to arrest cannot exist when the person is secured or the object inaccessible. Gant would seem to have revived the reasoning underlying Belton, 50 N.Y.2d at 451. Since this Court has declined to find Fourth Amendment violations under these circumstances on the basis of the Supreme Court’s Belton decision, see People v. Gokey, 60 N.Y.2d 309 (1983), this Court’s interpretation of the Fourth Amendment in these circumstances should be reconsidered in light of Gant. 28 The Search-Incident-To-Arrest Exception to the Warrant Requirement Pursuant to Article I, §12 of the New York State Constitution Two Court of Appeals cases interpreting the New York State Constitution, Article I, §12 in this area are People v. Gokey, 60 N.Y.2d 309 (1983) and People v. Smith, 59 N.Y.2d 454, 458 (1983). They were decided during the ascendancy of Belton, 453 U.S. 454 and considered that decision’s relevance to the New York State Constitution. Characterizing the Belton rule as permitting the search of a container within the “immediate control” of the arrestee, whenever a lawful arrest took place, this Court rejected this rule for purposes of the State Constitution.5 Gokey, 60 N.Y.2d at 312; Smith, 59 N.Y.2d at 458. According to this Court, the New York State Constitution required that the reasonableness of a search be determined on the basis of the “facts and circumstances of the particular case.” Smith, 59 N.Y. 2d at 457. While probable cause to believe that the person arrested has committed a crime will justify the search of the person, it will not necessarily justify the search of a container accessible to him.” Smith, 59 N.Y.2d at 458 (citations omitted). To authorize that additional intrusion, a further showing of exigency is 5 Of course, as just discussed, the Gant Court held that while this interpretation was widely perceived as the holding of Belton, 453 U.S. 454, it was, actually, not the holding of Belton. In fact, according to Gant, Belton reaffirmed the principles of Chimel - - that the warrantless search could be justified only by one of two exigencies, - - officer safety or evidence preservation; according to Gant, the scope of the search was circumscribed by the exigencies that required it. 29 required. Id.; Gokey, 60 N.Y.2d at 312 (right of privacy in personal effects dictates that a search incident to arrest be deemed unreasonable unless justified by exigent circumstances). Specifically, in order to justify a search of a container, the People are required to show the following. First, they must establish that the search of the container was close in time and place to the arrest. Smith, 59 N.Y.2d at 458. Second, the People must demonstrate the presence of exigent circumstances. Gokey, 60 N.Y.2d at 313; Smith, 59 N.Y.2d at 458; People v. Jimenez, 22 N.Y.3d 717, 721- 722 (2014). This Court has “recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer and the protection of evidence from destruction or concealment.” Jimenez, 22 N.Y.3d at 722 (citations and quotations omitted); Smith, 59 N.Y.2d at 458. “Exigency must be affirmatively demonstrated”; although “an officer need not affirmatively testify as to safety concerns to establish exigency, such apprehension must be objectively reasonable.” Jimenez, 22 N.Y.3d at 722, 723. Finally, the container must be in the “immediate control” or “grabbable area” of the arrested person. However, “even a bag within the immediate control or grabbable area of a suspect at the time of his arrest may not be subjected to a warrantless search incident to the arrest unless the 30 circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of the weapon or be able to destroy evidence located in the bag.” Id. (quotations and citations omitted); see also Gokey, 60 N.Y.2d at 311-312 (same). This Court has indicated that “the reasonableness of a police officer’s assertion of the presence of either or both of the [exigencies] - - safety or preservation of evidence - - to justify a warrantless search is measured at the time of the arrest.” Gokey, 60 N.Y.2d 312, see also Smith, 59 N.Y.2d at 458-459 (as described in Gokey, it was reasonable in Smith to search briefcase because briefcase was in possession of defendant at time of arrest, was large enough to contain weapon, and was not so securely fastened that the arrestee would have been unable to gain access to it). Thus, in evaluating the reasonableness of a search incident, this Court supposedly looks to see whether a bag is within the arrestee’s grabbable area at the time of arrest and whether an exigency exists at the time of arrest. While this Court in Gokey and Smith certainly stated that the reasonableness of a warrantless search of a container incident to an arrest should be measured at the time of the arrest, that is not exactly what this Court did. Gokey was arrested after an informant notified the police that he was carrying marijuana. When the officer approached Gokey, Gokey lay his 31 duffel bag on the ground, was frisked, and, then, handcuffed. After a dog indicated that the duffel bag contained marijuana, an officer searched the duffel bag. This Court found the search to be unreasonable because “by the time the search was undertaken, defendant’s hands were handcuffed behind his back and he was surrounded by five police officers and their dog.” Gokey, 60 N.Y.2d at 313-314 (emphasis added). This Court said, “[B]ecause the police concededly did not fear for their safety and because they could not have reasonably believed that the search of the bag was necessary to preserve any evidence that might have been located in it, the warrantless search of the bag was invalid.” Id. In other words, the Gokey court examined the existence of the exigencies at the time of the search when the defendant was handcuffed and outnumbered, and could not access any evidence in the bag or threaten officers. Indeed, the Gokey Court cited People v. Johnson, 59 N.Y.2d 1014 (1983), in support of its holding, noting that the Johnson search was upheld because “police reasonably believed at the time of search that defendant might gain access to a weapon” (emphasis added). And, recently, in People v. Jenkins, 24 N.Y.3d 62, 65 (2014), in considering “the exigent circumstances” exception to the warrant requirement, this Court found that the search of a closed container in defendant’s home was not reasonable under that exception because, at the 32 time of the search, defendant and his cohort were handcuffed and all occupants of the home were under police supervision. Similarly, while this Court in Smith started with the point of arrest in measuring the reasonableness of the search, it also looked to the time of the search to determine whether the circumstances that existed at that time were “sufficient to dissipate the reasonableness of conducting a search of the briefcase without a warrant.” Smith, 59 N.Y.2d at 459. The defendant in Smith was carrying a briefcase and wearing a bullet- proof vest, when he entered the subway system without paying a fare. After he lied to police officers about wearing a bulletproof vest, they took him and his briefcase to a nearby room. Then, as described by the Appellate Division, one of the officers took the briefcase away from Smith and searched it before Smith was handcuffed, although the police handcuffed Smith after finding a gun in the briefcase, Smith, 89 A.D.2d 549 (1st Dept. 1982). According to this Court in Gokey, the search of the briefcase in Smith was valid because the police reasonably feared for their safety, police reasonably believed that Smith was carrying a weapon because he was wearing a bulletproof vest, and had lied about it, and, at the time of his arrest, was carrying an unsecured briefcase large enough to contain a weapon. Gokey, 60 N.Y.2d at 312. According to the Gokey Court, the 33 officers’ “reasonable fear for their safety was found not to have dissipated,” id., at the time of the search, merely because he was moved into a nearby room. Id. Presumably, the danger had not dissipated because, at the time of the search, little had changed from the time of the arrest and the defendant was not secured. Again, despite this Court’s statements that the point of arrest was the point at which the reasonableness should be analyzed, this Court actually found the relevant point of analysis to be the point of the search - - whether the officers’ reasonable fear for their safety had “dissipated” at the point of the search; Id.; Smith, 59 N.Y.2d at 459. Of course, the Smith Court made other statements that are seemingly inconsistent - - that a search “may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police,” for reasons like public or police safety. Smith, 59 N.Y.2d at 458. This Court also stated, “whether in fact defendant could have had access to the briefcase at the moment it was being searched is irrelevant.” Id. at 49. These statements, however, are inconsistent with other statements in Smith and with this Court’s decision in Gokey several months later. There, this Court found that the search of the suspect’s duffel bag was unreasonable, in part, because it was inaccessible to the suspect at the time 34 of the search - handcuffed and surrounded by police and their dog, as he was. Gokey, 60 N.Y.2d at 313-314. In other words, once a suspect is handcuffed and the container is in the possession of police, searches of the container will be unreasonable because the two exigencies cannot exist. Id.; see also Gant, 556 U.S. 332;6 Jenkins, 24 N.Y.3d 62. More important, any suggestion of Gokey and Smith that the time of arrest is the point at which the reasonableness of the search is evaluated, must be disregarded because the Supreme Court in Gant has made clear that Chimel applies and that a search incident to arrest is reasonable, for Fourth Amendment purposes, only if, at the time of the search, the arrestee is unsecured and within reaching distance of the object to be searched. Only then is the search incident to arrest linked to, and commensurate with, its purpose of protecting officers and preserving evidence. Gant, 556 U.S. at 337, 339; see also Chadwick, 433 U.S. at 15; Chimel, 395 U.S. at 762-63. To the extent that Smith or Gokey or any other state case are used to legitimize a search incident to arrest on the ground of the suspect’s access to the contents of a container at the time of his arrest even though the suspect was securely handcuffed and the container in the possession of the officers 6 Of course, as previously discussed, even if a container is not solely in the possession of the police, a search incident to arrest will not be upheld unless at least one of the two exigencies are present, safety or preservation of evidence. 35 at the time of the search, the court has crossed the line created by Chimel and reaffirmed by Chadwick, and, then, Gant. Such a search violates the Fourth Amendment and, necessarily, the New York State Constitution. Indeed, as previously discussed, the Court in Gant adopted much of the analysis set forth in this Court’s decision in Belton, 50 N.Y.2d at 451, finding searches unreasonable, if, at the time of the search, the defendant was secured or the container in the possession of the police because any danger to the police or the evidence - - the only justifications for a search incident to arrest - - must have necessarily dissipated. This Court found the critical inquiry to be the extent to which the arrestee can gain access to property at the time of the search, id., at 451, the exact inquiry in Gant. In light of Gant and its similarity to Belton, 50 N.Y.2d 447, this Court should find the time of the search to be the point at which the reasonableness of the search is evaluated. Indeed, the Appellate Division has often found that no exigencies exist once the suspect is handcuffed, surrounded by officers, and the object is in the possession of the officers. See, e.g., People v. Morales, 126 A.D.3d 43 (1st Dept. 2015) (search of jacket incident to arrest was not reasonable because suspect was handcuffed and jacket was inaccessible at the time of the search); People v. Julio, 245 A.D.2d 158 (1st Dept. 1997) (no reasonable 36 basis for concern about officer or public safety or the preservation of evidence at the time of the search because bag was in control of the police and the suspect was handcuffed and surrounded by several police officers); People v. Evans, 84 A.D.3d 573 (1st Dept. 2011) (after defendant was handcuffed, surrounded by police officers, and officer was in possession of backpack; “there was no evidence as to how defendant could have gained access to the contents of the bag for the purpose of destroying them after he was handcuffed”). Application of the Law to the Facts Here, the People failed to demonstrate that the relevant exigent circumstances - - the safety of the police officers and the preservation of evidence - - existed at the time of the search so as to justify the search of the satchel. The safety of the police was not at issue at the time of the search. Appellant was in the custody of two police officers and had been handcuffed “before they [the police] got the bag off,” and the bag was in the sole possession of the police at the time of the search. See Gant, 556 U.S. at 339; Chadwick, 133 U.S. 1; Gokey, 60 N.Y.2d at 313-314. Although Ward testified that he and Sweeney had frisked appellant to locate weapons and to address a “possible threat” to the officers, that frisk occurred before the search. Once they had handcuffed appellant and placed 37 the bag in their control - - both of which they had accomplished before the search - - any threat that they may have felt could have only abated. Indeed, it is difficult to see why the officers would have ever felt endangered, even at the time of his arrest. Appellant was being arrested for making sawing motions near bicycle locks, see Jimenez, 22 N.Y.3d at 722 (a non-violent crime does not provide a reasonable basis to fear for safety), and he had dropped his broken hacksaw before he was frisked. The officers had followed him around for fifteen minutes and had never seen anything other than what they inferred was a hacksaw that could be used as a weapon. Once they approached appellant and instructed him not to move, he was fully cooperative while they placed him on the hood of a car and frisked him. See Jimenez, 22 N.Y.3d at 723 (gun suppressed in part because it would not have been objectively reasonable for the officers to have feared appellant in part because appellant was cooperative, offered no resistance to any police actions, and presented a nonthreatening demeanor). Nor was there any reason to believe that the preservation of evidence was at stake at the time of the search. The bag was in police hands, not in a place where the handcuffed appellant could possibly have had access to it and the tool that the police had guessed that he had been using in his unsuccessful attempts was lying broken on the ground. 38 The hearing court found the search of the satchel to be proper because appellant had been carrying around a dangerous tool, the hacksaw, and because of the activities in which he had been involved and the tools that were found and because the bag might contain tools would “further” the type of criminal activities in which he was involved. But, of course, the hacksaw was broken; appellant had dropped it immediately upon being stopped, as the hearing court acknowledged. The officers had followed appellant for fifteen minutes, and he had never touched the satchel after his hacksaw broke to retrieve anything to substitute for the hacksaw. Nor had the officers seen anything dangerous other than the hacksaw. More important, once appellant was handcuffed and the bag in the control of the police, appellant could not access its contents, so no exigency could exist. See ante. The court’s second reason – that the police might have found something that would have enabled him to pursue his criminal activities – is true of every illegal search. The exigent circumstance that justifies a search of a closed container incident to arrest is not that the bag might contain evidence; it is that the evidence will not be preserved if the bag is not searched. Gokey, 60 N.Y.2d at 312; Chimel, 395 U.S. at 263. As the Appellate Division, First Department has explained, “once the bag was 39 safely in the possession of the officers, there was absolutely no reason why a warrant for a search of the [bag’s] content would not have been obtained if there had in fact been any basis to suppose that the [bag] contained either contraband or evidence of the crime for which the arrest had been made.” People v. Rosado, 214 A.D.2d 375 (1st Dept. 1995). The People here also misconstrued the law, arguing at the Appellate Term, that the reasonableness of the officer’s belief that exigent circumstances justified a warrantless search incident to arrest is “determined from the objective circumstances ‘at the time of the arrest’ and not at the time of the search.” According to the People, as long as the arrest and search are “somewhat contemporaneous,” justification for the search does not change even if there is a brief delay or small movement (Respondent’s brief, p. 17). The People, citing Smith and People v. Wylie, 244 A.D. 2d 247, 251 (1st Dept. 1997), rationalized their position, saying that, in arrest situations, circumstances develop quickly and police should be able to conduct a search if they “have not yet ruled out the possibility that the arrestee will produce a weapon or destroy evidence in the container regardless of whether or not he 40 has been handcuffed (Respondent’s brief, p. 18).7 According to the People, a warrant is only required when the search and arrest are “sufficiently divorced in time or place from the arrest and the container has been reduced to the exclusive control of the police” (Respondent’s brief, p. 18). After repeating the oft-repeated language of Smith that whether the defendant could have had access to the bag at the time of search is irrelevant, the People concluded that the search was reasonable because, at the time of appellant’s arrest, he was carrying a satchel that was large enough to carry screwdrivers and pliers, and, thus, in the People’s view, a weapon, and because the officers had just seen appellant do something with bicycle locks and so were apprehensive that appellant might be carrying sharp tools at the time of his arrest. Thus, according to the People, the officers were reasonably concerned about their safety, and the search was reasonable. (Respondent’s brief, pp. 18-19). 7 Interestingly enough, the court in Wylie analyzed the reasonableness of the search at the time of the search. Wylie, 244 A.D.2d at 250 (“once police obtain ‘exclusive control’ over an arrestee’s property and there is no longer the possibility of gaining access to the property to seize a weapon or destroy evidence, the search is no longer incident to arrest,” as in Gokey). At any event, the Wylie Court (relying on People v. DeSantis, 46 N.Y.2d 82 (1978), which itself had been disapproved of by People v. Belton, 50 N.Y.2d at 449 and which relies on reasoning that contradicts Chadwick) held that until it could be said that the container was in the exclusive possession of the police, or the arrest scene was police controlled, the police could conduct a search incident to arrest, regardless of whether the suspect was handcuffed. This holding must now, of course, be read in the light of Gant, which finds searches incident to arrest reasonable only if the suspect is unsecured and within reaching distance of the area to be searched. 41 The Appellate Term accepted the People’s analysis of the law in determining that this was a reasonable search. The Appellate Term determined that the search was reasonable because it was “contemporaneous” with the arrest and the “backpack8 [sic] was large enough to contain a weapon and was within defendant’s grabbable area at the time of his arrest soon after police saw him discarding a hacksaw and the surrounding circumstances supported the reasonableness of the testifying officer’s stated fear for his safety.” Miranda, 44 Misc. 3d 140 (A). In other words, because the satchel was accessible to appellant at the time of his arrest and because the officer expressed a fear about safety at the time of the frisk, it was reasonable to search the satchel even though the police officers had secured both appellant and his satchel by the time of the search and the two exigencies could not exist. But, of course, the People and the Appellate Term were incorrect; the issue is not whether the satchel was in appellant’s grabbable area at the time of his arrest, but whether it was accessible to him at the time of the satchel’s search. Gant, 556 U.S. at 339; Chadwick, 133 U.S. 1; Gokey, 60 N.Y.2d at 313-314 (search invalid because “by the time the search was undertaken” the defendant was handcuffed and surrounded by police, and the police could 8 It was a satchel. 42 not have reasonably believed under the circumstances that searching the bag was necessary to preserve evidence). The issue is not whether it was reasonable for the police officer to fear for his safety at the time of the frisk, but, rather, whether it was reasonable to fear for his safety at the time of the search. If the underlying rationale for the search was the officers’ safety, as the Appellate Term believed, the evaluation of the reasonableness of their fear must be made at the time of the search. Id. It makes no sense to evaluate the reasonableness of the officers’ fear at one point in time in order to justify a warrantless search at a different point in time. Id. It makes no sense to authorize a warrantless search which has, as its purpose, protecting officers who fear for their safety without inquiring as to whether the officers reasonably feared for their safety at the time of the search. If, at the time of the search, the police have handcuffed the suspect and possess the container, the legitimacy of the search of the container is divorced from its rationale. Id. And, as previously discussed, the officers had no reason to fear for their safety at the time of the search. See ante. Finally, that the satchel was large enough to contain a weapon is of no import when the officers were in possession of the satchel, the defendant 43 was handcuffed, and the officers could not reasonably fear for their safety.9 Id. Indeed, the People’s belief that a warrantless search is authorized as long as one of the two exigencies exists at the time of arrest even though neither exigency exists at the time of the search (because there is no possibility that the arrestee could access the container at the time of the search) runs counter to Gant, Chadwick, and Chimel. The People’s examination of the exigencies at the point of arrest rather than at the point of search itself divorces the exigencies that can justify a warrantless search from the search itself. Gant, 556 U.S. at 343. Chimel taught that warrantless searches incident to arrest are not permitted unless the need to protect officers or preserve evidence made that course imperative, Chimel, 9 The Appellate Term cited Smith, 59 N.Y.2d 454 and People v. Freddy S., 84 A.D.3d 687 (1st Dept. 2011) in their decision. This case, of course, is unlike Smith; appellant, in contrast to Smith, was handcuffed at the point of the search and had done nothing that indicated the presence of a weapon, other than dropping a hacksaw; moreover, to the extent that Smith indicates that the time of arrest, rather than the time of the search, is the correct point of analysis, Smith is inconsistent with Gant and, therefore, incorrect. Freddy S. does not appear to be supportive of the holding in the case at bar. While the Freddy S. court described the arrest and the search as contemporaneous, it found the search to be reasonable, in part, because the backpack was in Freddy’s grabbable area and not within the control of the police. Here, of course, the satchel was in the possession of the officers and appellant was handcuffed. The Appellate Term also cited as “cf.” both Jimenez, 22 N.Y.3d 717 and People v. Febres, 118 A.D.3d 489 (1st Dept. 2014). Both of these cases seem to bear more similarity to the case at bar than does Freddy S. In both cases, the courts held the searches to be unreasonable because, as here, the defendant was cooperative and secured. 44 395 U.S. at 76, and Gant held that a warrantless search incident to arrest was impermissible if there was no possibility that an arrestee could reach into the area that law enforcement offices sought to search at the time of the search. The People’s interpretation of the law, however, would authorize searches when there was no possibility of the arrestee reaching into the area that the officer seeks to search to obtain a weapon or to destroy evidence. After Gant, the People’s interpretation of the law – that warrantless searches can be justified if the container was accessible to the arrestee at the time of arrest even if the container’s contents are no longer accessible at the time of search – is unsupportable under the Fourth Amendment and under the State Constitution. The People also argue that the officers should be able to conduct a search if they have not yet ruled out the possibility that the arrestee will produce a weapon or destroy evidence even if he has been handcuffed. (Respondent’s brief, p. 18) In fact, both the federal and state rules address the People’s concerns for officers’ safety or the destruction of evidence at the time of the search. If the People can demonstrate that a suspect was, in fact, not secured and that the container was accessible to him and that there was, therefore, a reasonable concern for officer safety or for the preservation 45 of evidence at the time of a search, the warrant requirement will be excused for a search incident to arrest. That simply was not the case here. See ante. This issue is preserved as a question of law for this Court’s review because appellant moved to suppress the evidence on the ground that appellant was stopped and searched without a warrant, his consent or any other lawful authorization, and the court denied the motion, finding that the search of the satchel was proper as a search incident to a lawful arrest. C.P.L. §470.05(2). See People v. Smith, 22 N.Y.3d 462, 465 (2013) (“regardless of whether defendant’s objection to the testimony was sufficiently explicit, the trial court, in response to defendant’s protest, “expressly decided the question raised on appeal,” thus preserving the issue for review (C.P.L. §470.05(2)”); People v. Prado, 4 N.Y.3d 725, 726 (2004) (defense counsel’s general motion to dismiss the charges coupled with the trial court’s specific finding as to corroboration, the question on appeal, preserved the issue as a question of law). Consequently, the search of appellant’s satchel was improper, and the property found in the satchel should be suppressed, appellant’s convictions of attempted criminal possession of burglar’s tools based on that property should be reversed, and the counts dismissed. 46 CONCLUSION THE PROPERTY FOUND IN APPELLANT’S SATCHEL MUST BE SUPPRESSED AND APPELLANT’S CONVICTIONS OF ATTEMPTED CRIMINAL POSSESSION OF BURGLAR’S TOOLS BASED ON THAT PROPERTY SHOULD BE REVERSED AND THE COUNTS DISMISSED. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant FRANCES A. GALLAGHER Of Counsel May, 2015