The People, Respondent,v.Nelson Miranda, Appellant.BriefN.Y.February 11, 2016APL-2015-00015 To be argued by ANDREW E. SEEWALD (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - NELSON MIRANDA, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 ALAN GADLIN ANDREW E. SEEWALD ASSISTANT DISTRICT ATTORNEYS Of Counsel JULY 29, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................... 4 THE SUPPRESSION HEARING ..................................................................................... 5 The People’s Case ....................................................................................................... 5 Defendant’s Case ........................................................................................................ 7 The Parties’ Arguments and the Court’s Decision ................................................. 7 POINT DEFENDANT’S CHALLENGE TO THE SEARCH OF HIS SATCHEL IS UNPRESERVED. IN ANY EVENT, THAT SEARCH WAS JUSTIFIED UNDER THE SEARCH INCIDENT TO ARREST DOCTRINE ................................. 8 A. Defendant’s Current Claims Are Unpreserved ................................................. 9 B. The Record Supports the Lower Courts’ Conclusion that the Police Properly Searched Defendant’s Satchel ................................................................................. 16 CONCLUSION ................................................................................................................... 28 TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Gant, 556 U.S. 332 (2009) ................................................................. 18-19, 26-27 United States v. Robinson, 414 U.S. 218 (1973) ..................................................................... 18 STATE CASES People v. Almodovar, 62 N.Y.2d 126 (1984) .......................................................................... 22 People v. Aveni, 22 N.Y.3d 1114 (2014) ............................................................................... 18 People v. Brooks, 65 N.Y.2d 1021 (1985) .............................................................................. 22 People v. Calabria, 3 N.Y.3d 80 (2004) ................................................................................. 17 People v. Capellan, 38 A.D.3d 393 (1st Dept. 2007), lv. denied, 9 N.Y.3d 873 (2007) ................................................................................................................................ 23 People v. Dancey, 57 N.Y.2d 1033 (1982) ............................................................................. 10 People v. De Santis, 46 N.Y.2d 82 (1978), cert. denied, 443 U.S. 912 (1979) .................. 18-19 People v. Evans, 84 A.D.3d 573 (1st Dept. 2011) ................................................................ 24 People v. Gibson, 24 N.Y.3d 1125 (2015) .............................................................................. 17 People v. Gokey, 60 N.Y.2d 309 (1983) ..................................................................... 18-21, 26 People v. Graham, 25 N.Y.3d 994 (2015) ............................................................... 9-10, 13-14 People v. Gray, 86 N.Y.2d 10 (1995) ....................................................................................... 9 People v. Harrison, 57 N.Y.2d 470 (1982) ............................................................................. 17 People v. Holmes, 81 N.Y.2d 1056 (1993) ............................................................................. 22 People v. Howard, 22 N.Y.3d 388 (2013) .............................................................................. 17 People v. Hunter, 17 N.Y.3d 725 (2011) ............................................................................... 15 People v. Jenkins, 24 N.Y.3d 62 (2014) ................................................................................. 24 -ii- People v. Jimenez, 22 N.Y.3d 717 (2014) ....................................................... 18-19, 21, 24, 26 People v. Julio, 245 A.D.2d 158 (1st Dept. 1997) ................................................................ 24 People v. Kims, 24 N.Y.3d 422 (2014) ................................................................................... 17 People v. Liccione, 50 N.Y.2d 850 (1980) .............................................................................. 12 People v. Martin, 50 N.Y.2d 1029 (1980)........................................................................ 10, 15 People v. Miranda, 44 Misc.3d 140(A) (App. Term, 1st Dept. 2014) ................ 3, 10, 12-13 People v. Morales, 126 A.D.3d 43 (1st Dept. 2015) ............................................................. 24 People v. Owusu, 93 N.Y.2d 398 (1999) ................................................................................ 21 People v. Passino, 12 N.Y.3d 748 (2009) ............................................................................... 13 People v. Reid, 24 N.Y.3d 615 (2014) .................................................................................... 18 People v. Smith, 59 N.Y.2d 454 (1983) ............................................................... 18-20, 23, 26 People v. Smith, 81 N.Y.2d 875 (1983) ................................................................................. 12 People v. Thomas, 291 A.D.2d 462 (2nd Dept. 2002) .......................................................... 24 People v. Turriago, 90 N.Y.2d 77 (1997)................................................................................ 14 People v. Tutt, 38 N.Y.2d 1011 (1976) .................................................................................. 12 People v. Wells, 15 N.Y.3d 927 (2010), cert. denied, __ U.S. __, 132 S.Ct. 123 (2011) ................................................................................................................................ 12 STATE STATUTES CPL 470.05(2) ......................................................................................................................... 9 Penal Law § 110.00 .............................................................................................................. 1-2 Penal Law § 140.35 .............................................................................................................. 1-2 Penal Law § 155.25 .............................................................................................................. 1-2 Penal Law § 145.00(1) ............................................................................................................ 2 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- NELSON MIRANDA, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the State of New York, granted on January 14, 2015, defendant Nelson Miranda appeals from an August 22, 2014, order of the Appellate Term, First Department. That order affirmed a March 4, 2011, judgment of the Criminal Court, New York County (Neil Ross, J., at suppression hearing; Rita Mella, J., at trial and sentence), convicting defendant, after a non-jury trial, of six counts of attempted possession of burglar’s tools (Penal Law §§ 110.00 and 140.35) and three counts of attempted petit larceny (Penal Law §§ 110.00 and 155.25). Defendant was sentenced to concurrent terms of 45 days in jail on one of the burglar’s tools counts and two of the larceny counts, and time served on the remaining counts. Defendant has completely served that sentence. INTRODUCTION Defendant was caught red-handed trying to steal three bicycles. On October 15, 2010, in the West Village neighborhood of Manhattan, a plain-clothes police officer watched defendant trying, unsuccessfully, to saw apart the locks of one bicycle after another. Just after defendant tried to saw open the third bicycle’s lock, the officer apprehended him. Defendant dropped a hacksaw to the ground. Promptly searching defendant, the officer found that defendant had a satchel under his coat. The officer immediately searched the satchel, finding two screwdrivers, two pairs of pliers, and a pair of rubber gloves. By information under New York County Docket Number 2010NY076384, defendant was charged with seven counts of possession of burglar’s tools (Penal Law § 140.35), three counts of criminal mischief in the fourth degree (Penal Law § 145.00[1]), and three counts of attempted petit larceny (Penal Law §§ 110.00 and 155.25). Defendant moved to suppress the hacksaw and tools recovered from his satchel, claiming that the police arrested him without probable cause. On February 3, 2011, the Honorable Neil Ross held a hearing on defendant’s motion. Following the hearing testimony, defendant argued that the arresting officer’s testimony that he saw defendant trying to steal the bicycles was not credible, and thus the officer did not have probable cause to arrest him. But the court credited the officer’s testimony, found that he had probable cause to arrest defendant, and added that he had justifiably searched defendant’s satchel as a search incident to arrest, because it could -2- have contained additional tools, which would have been evidence of defendant’s crimes or posed a threat to the officer and his partner. Accordingly, Judge Ross denied defendant’s motion to suppress the tools. The People then successfully moved to consolidate two of the burglar’s tools counts into one, and reduce each burglar’s tool and criminal mischief count to an attempt crime. On February 9, 2011, defendant proceeded to a bench trial before the Honorable Rita Mella. On February 17, 2011, Judge Mella found defendant guilty of the six attempted burglar’s tools and the three attempted larceny counts, and not guilty of the attempted mischief counts. On March 4, 2011, Judge Mella sentenced defendant as noted above. On appeal to the Appellate Term, defendant argued that Judge Ross erroneously denied his suppression motion. Defendant also claimed that the trial evidence was legally insufficient to prove the attempted petit larceny charges, and that the accusatory instrument was defective. On August 22, 2014, the Appellate Term unanimously rejected defendant’s claims and affirmed defendant’s conviction. People v. Miranda, 44 Misc.3d 140(A) (App. Term, 1st Dept. 2014). As pertinent here, the Appellate Term ruled that the police lawfully searched his satchel “as incident to what defendant concedes was a lawful arrest” for several reasons: the “arrest and search were contemporaneous”; the satchel 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 searching officer testified that he “fear[ed] for his -3- safety,” and “the surrounding circumstance[s]” demonstrated that his fear was “reasonable[ ]” (A. 2-3). On appeal to this Court, defendant maintains only that the lower courts erred in upholding the search of defendant’s satchel. In defendant’s view, no exigency justified the search. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did defendant preserve his attacks on the validity of the search of his satchel under the search incident to arrest doctrine where he never even mentioned that doctrine before the suppression court, and neither the parties nor the court addressed his current arguments regarding the purported inapplicability of that warrant exception? 2. Where the police lawfully arrested defendant, were they entitled to contemporaneously search a satchel he was wearing on his person? The courts below answered this second question, “Yes.” -4- THE SUPPRESSION HEARING1 The People’s Case On October 15, 2010, Police Officers SCOTT WARD and Patrick Sweeney were in plain clothes, in an unmarked car, looking for criminal activity in the West Village neighborhood of New York County (A. 12-13, 27-28, 33, 54).2 Shortly after 11:00 p.m., Officer Ward noticed defendant “pacing back and forth” and looking “up and down the street” at the corner of West 11th and Washington Streets. Ward got out of the car and went into a restaurant, from which he continued to watch defendant (A. 14-16, 34). Defendant stopped at a bicycle that was locked to a fence, grabbed its “D-shaped” lock, and “made a back and forth motion” with “some sort of tool” he held in his right hand. When pedestrians or motorists passed, defendant would stop the motion (A. 14, 17-18, 32-33, 47-48, 51). At some point, defendant left that bicycle, put the tool inside his sleeve, and walked about 15 to 20 feet east on West 11th Street to a second bicycle. There, defendant made a back and forth motion that was similar to the one he had made at the first bicycle. After less than a minute, defendant left the second bicycle and walked farther east on West 11th Street (A. 18, 42-43, 54-56, 59). Officer Ward left the restaurant and followed defendant. About a block from the second bicycle, defendant 1 Because defendant’s sole claim on appeal is that suppression court’s ruling was erroneous, this brief does not recount the trial evidence. 2 References beginning with “A” are to defendant’s Appendix. -5- stopped at a third bicycle and made the same back and forth motion that he had made at the first two (A. 18, 42-43, 56, 60). At that point, Officer Ward grabbed defendant’s arm from behind and said, “Police. Don’t move.” Defendant dropped a hacksaw between two parked cars but “cooperated 100%” with the officer (A. 19, 62-63). With Officer Sweeney just then arriving from across the street, Officer Ward pushed defendant against a car, and “frisked” and “searched [defendant] for any weapons and other types of objects” that posed “possible threats” to the safety of the two officers (A. 19-20, 64-66). “Once [the officer] stopped [defendant] and began the initial frisk and search,” he recovered several tools “[f]rom inside a satchel bag that [defendant] had under his coat.” (A. 19- 20). The satchel was “on [defendant’s] person, on his body” (A. 66).3 It contained two pairs of pliers, two screwdrivers, and a pair of rubber gloves (A. 19-22, 57, 61-66). The officers handcuffed defendant and removed the bag from his person (A. 64). After arresting defendant, Officer Ward returned to the bicycles and noticed that the first lock had been sawed about halfway through, while the next two were merely scratched. On each bicycle, Officer Ward left a note with his contact information, but never heard from any of the owners (A. 22-23, 69). 3 The satchel was a “standard satchel shoulder bag,” approximately 18 inches wide, 9 inches high, and 3 inches deep, and was “[a]s closed as a satchel can be” (A. 57, 66). Officer Ward did not recall whether it had a zipper or some other type of fastener. The police did not retain the satchel (A. 66-67). -6- Defendant’s Case Defendant presented no evidence at the suppression hearing. The Parties’ Arguments and the Court’s Decision Following the presentation of evidence, the prosecutor argued that Officer Ward’s observations of defendant’s “back and forth motions” towards the bicycles, with a tool in his hand, justified the officer’s conclusion that defendant attempted to steal the bicycles. Because Officer Ward had probable cause to arrest defendant for attempted larceny, he properly recovered the hacksaw and remaining tools (A. 71-73). Defense counsel countered that Officer Ward’s testimony that he could see defendant “moving a hand back and forth in a certain way” was not credible. He also contended that an officer’s observation of “somebody doing something suspicious” does not provide probable cause for an arrest. Therefore, counsel asserted, Officer Ward had no reason for stopping defendant and “jumping to a level where it would be [a] total physical seizure at that point.” Counsel never mentioned Officer Ward’s recovery of the tools from the satchel (A. 73-76). Judge Ross denied defendant’s motion to suppress the tools. The court gave “full credence” to Officer Ward’s testimony (A. 77), and found that he was “extraordinarily careful” in observing defendant “engaging in “criminal activity” (A. 76-83). The court recounted that while Officer Ward was patting down defendant “for the safety of the officers,” he “felt that the defendant had some type of bag on his person” (A. 80). The officer “searched the inside of the bag” that he had detected -7- “upon the first pa[t] down,” and “inside of the bag” was the “property in question at this hearing,” which “was recovered at that time” (A. 80). The court concluded that “this search incident to lawful arrest” was justified “for any number of reasons,” including that defendant had just dropped a “very dangerous tool”; the satchel “could have easily held” similar tools; and any tools in the satchel could have been used to commit further crimes similar to the ones defendant had just attempted (A. 83-84). POINT DEFENDANT’S CHALLENGE TO THE SEARCH OF HIS SATCHEL IS UNPRESERVED. IN ANY EVENT, THAT SEARCH WAS JUSTIFIED UNDER THE SEARCH INCIDENT TO ARREST DOCTRINE (Answering Defendant’s Brief). A police officer watched defendant attempt to steal three different bicycles in quick succession by trying to break their locks with a tool. The officer stopped defendant and defendant dropped a hacksaw to the ground. Then the officer searched him for weapons and other dangerous objects, happening upon a satchel defendant wore across his body, under his coat. Inside the satchel, the officer found pliers, screwdrivers, and rubber gloves. The officer handcuffed defendant and removed the satchel. Defendant no longer claims, as he did before the suppression court, that the officer lacked probable cause to arrest him. Instead, defendant argues that the officer had no right to take the additional step of searching the satchel without a warrant (Defendant’s Brief at 36-44). As defendant sees it, by the time the police searched his -8- satchel, any exigency for searching it had evaporated, rendering the search incident to arrest exception to the warrant requirement inapplicable. Defendant’s argument is unpreserved and meritless. A. Defendant’s Current Claims Are Unpreserved A question of law is preserved for this Court’s review when the party claiming error presented his specific argument to the court that made the supposedly erroneous ruling. CPL 470.05(2); see People v. Gray, 86 N.Y.2d 10, 19 (1995) (“preservation requirement compels that the argument be specifically directed at the alleged error”) (internal quotations and citation omitted). In the absence of a party’s specific argument, a claim may nonetheless be preserved for this Court’s review when, “in response to a protest by a party, the court expressly decided the question raised on appeal.” CPL 470.05(2); see People v. Graham, 25 N.Y.3d 994, 996-97 (2015). Here, neither method of preservation occurred. Thus, defendant’s claims must be rejected without even considering their merits. In the suppression court, defendant never argued, as he does now, that the search of his satchel could not be justified under the search incident to arrest exception to the warrant requirement, much less that the sort of exigency required for that exception to apply did not exist here. Instead, in his written motion prior to the hearing, defendant asserted only that the evidence should be suppressed because he was “not committing any crimes or infractions,” and thus the police lacked “probable cause to stop” him. In those circumstances, defendant alleged, the police had no right -9- to “stop[ ] and search [him] without a warrant, his consent or any other lawful authorization” (A. 5). That general motion preserved nothing. See People v. Graham, 25 N.Y.3d at 995-97 (“general motion for suppression” insufficient for preservation purposes). Then, at the close of the suppression hearing, defendant never challenged the officer’s recovery of items from the satchel at all. Instead, he argued only that the arresting officer’s testimony that he saw defendant trying to saw the locks of three bicycles was “not credible.” Defendant further contended that the officer’s observations provided “no reason” to arrest him (A. 73-76). Because defendant never raised his current argument that the search incident to arrest doctrine was inapplicable because no exigency supported the search of the satchel, he failed to preserve that argument for this Court’s review. People v. Dancey, 57 N.Y.2d 1033, 1034-35 (1982) (argument that “at the time of the seizure, the exigency which justified the initial presence of the police of the police in the apartment no longer existed” was unpreserved by suppression hearing contention that officer’s testimony that he had inadvertently discovered evidence was “not worthy of belief”); see People v. Graham, 25 N.Y.3d at 995-97 (defendant’s argument that police “lacked probable cause to arrest him” failed to preserve Miranda claim); People v. Martin, 50 N.Y.2d 1029, 1030-31 (1980) (challenge to whether police properly seized evidence from his home under plain view doctrine did not preserve claim that police improperly entered his home without a warrant). -10- Moreover, and contrary to defendant’s current claim (Defendant’s Brief at 45), the suppression court did not “expressly decide” the questions he raises on appeal. Rather, focusing on the sole issue defendant raised, the court ruled that the police had probable cause to arrest defendant because they observed him “engaging in criminal activity” (A. 83). To be sure, the court’s oral decision added that “[t]his search incident to a lawful arrest was conducted for any number of reasons,” including that defendant had just dropped a “very dangerous tool”; that defendant’s bag “could have easily held” similar tools; and that such tools could have been used to commit further crimes just like the ones defendant had attempted (A. 83-84). But in so observing, the suppression court did not “expressly decide” the specific questions defendant frames in his appeal to this Court. The question defendant now insists is dispositive is whether exigent circumstances existed at the moment when he was “handcuffed and fully cooperative and the officer was in possession of the satchel” (Defendant’s Brief at 2). In essence, defendant asserts that the search incident to arrest exception is inapplicable because, in his view, as a factual matter, the police did not search the satchel until they had secured him and removed his satchel (Defendant’s Brief at 17-18). To that end, he presses the legal argument that the requisite exigency for such a search had to exist at the time of that search, not just at the time of arrest (Defendant’s Brief at 36-38, 41- 42, 44). -11- The court said nothing about these factual and legal issues. The court did not even make a finding as to whether the police had removed the satchel from defendant before they searched it. All the judge said was that in patting down defendant for the officers’ safety, Ward “felt” that defendant had some type of bag hidden under his jacket, and that the officers “then searched the inside of the bag” (A. 80). Nor did the court make any comment regarding whether the justifications for the search existed only at the time of the search and not previously, or whether that precise timing was required under the search incident to arrest exception. By no stretch, then, did the court “expressly decide” the questions defendant raises on appeal here. The mere fact that the court invoked the search incident to arrest exception did not serve to preserve defendant’s current, far more particular claims. A specific appellate argument is not preserved by a mere allusion to the controlling legal doctrine and facts relevant to it. E.g., People v. Smith, 81 N.Y.2d 875, 876 (1983) (defendant raised Batson claim below, but failed to preserve argument that exclusion of jurors indicated purposeful discrimination); People v. Liccione, 50 N.Y.2d 850, 851 (1980) (objection that some prerequisites for admission of co-conspirator statement were unsatisfied did not preserve claim regarding satisfaction of others); People v. Tutt, 38 N.Y.2d 1011, 1012-13 (1976) (claim at suppression hearing that defendant was given no Miranda warnings did not preserve appellate challenge to “a narrow aspect of the sufficiency of the admonitions given”); see also People v. Wells, 15 N.Y.3d 927, 928 (2010) (defendant’s argument that juror should not have been discharged did not -12- preserve claim that court applied wrong statutory standard in making that determination), cert. denied, __ U.S. __, 132 S.Ct. 123 (2011). By the same token, the mere fact that the suppression court found that there was a proper “search incident to arrest” does not preserve defendant’s specific appellate challenges as to the relevant facts and controlling legal standards under that warrant exception. See People v. Passino, 12 N.Y.3d 748, 749 (2009) (defendant’s claim not preserved where he did not raise any Miranda issues below, and “that court’s ruling on the Miranda issue did not address any of the arguments defendant now makes”). The lack of preservation here is very similar to that in People v. Graham. There, too, the defendant moved to suppress evidence – in that case, his statements – based primarily on an alleged lack of probable cause. 25 N.Y.3d at 995. Despite the defendant’s failure to raise a right to counsel issue, the suppression court’s decision examined whether “counsel was required to be present for the entirety” of the interview in question, and held that “counsel’s continued presence was not required” because the “defendant waived his right to counsel in counsel’s presence.” Id. at 997. On appeal to this Court, the defendant claimed that the “courts below erred in determining that the presence of counsel obviated the need for police to advise of him of his right to remain silent.” Id. at 996. The Court held that the defendant’s claim was unpreserved for review, because the suppression court did not “expressly decide” whether “the police were required to advise defendant of his right to remain silent,” but instead “focused on the right to counsel and whether counsel was required to be -13- present for the entirety of that interview.” Id. at 996-97. Similarly, here, while the court addressed relevant legal issues defendant had not himself raised, the court did not expressly decide the precise issues defendant now advances on appeal. Likewise, in People v. Turriago, 90 N.Y.2d 77 (1997), at the suppression hearing, the defendant challenged a consent search of his van by asserting only that his consent was involuntary. Id. at 83. In denying the defendant’s motion, the suppression court alluded to the “subjective suspicions of the troopers” and discussed the practice of the State Police to “seek authority to search vehicles for violation of hunting laws and regulations.” Id. The defendant nevertheless prevailed in the Appellate Division on the theory that a founded suspicion of criminal activity had been a necessary predicate for state troopers to seek permission to search the defendant’s van, but that the State Police had not possessed that level of suspicion. When the People sought review of the conclusion that founded suspicion had been necessary, the Court concluded that it could not consider that claim because the defendant had not preserved it – the Appellate Division had reached it in the interest of justice. The Court held that the suppression court had not “expressly decided” whether the “request for consent to search was justified by a founded suspicion of criminal activity, or even, that a founded suspicion was the appropriate standard for a consent vehicle search.” Id. at 84 (emphasis in original). Here, too, the hearing court never expressly decided that defendant’s current arguments about the governing legal standards were -14- right or wrong, or whether the facts it found met or fell short of the standard defendant now touts. Moreover, the rationales underlying the preservation requirement strongly apply here. Defendants are obliged to preserve their claims in order to give the People a fair opportunity to make an evidentiary showing regarding the claim, so as to provide a sufficient record for intelligent appellate review, and to give the court an opportunity to avoid error. People v. Martin, 50 N.Y.2d at 1031; see People v. Hunter, 17 N.Y.3d 725, 727-28 (2011). Most notably, defendant’s appeal to this Court is premised on his assertion that the satchel was securely “in police hands” at the time of the search (Defendant’s Brief at 37). But at the hearing, apparently nobody thought that was a relevant issue, and Officer Ward’s testimony on that subject was not extensive. To the extent the officer did illuminate exactly where the satchel was when he searched it, the record indicates that the officer had discovered the satchel’s contents – and thus had searched it – before he removed it from defendant’s body, not after. Officer Ward testified that when he “frisked” defendant and “searched him for any weapons and other types of objects,” he found the tools “inside of the satchel bag on his person, on his body” (A. 66). Had the People been alerted at any point below that this was a relevant issue, Officer Ward could have been asked to specify that the satchel was indeed still on defendant’s body when he searched it. Similarly, the People had no reason to counter defendant’s related appellate claims that, regardless of whether an exigency could have justified the search at the -15- time of the arrest, no exigency existed at the time of the search, so as to justify a search at that subsequent point. On this point as well, the existing record seems inconsistent with defendant’s claims, because Officer Ward appeared to testify that the arrest and search happened simultaneously. The officer recounted that “[o]nce [he] stopped [defendant] and began the initial frisk and search” of defendant, he recovered “several tools” “[f]rom inside a satchel bag that [defendant] had under his coat” (A. 19). The officer handcuffed defendant and then removed the satchel from his person (A. 64). And, as just discussed, the officer’s testimony on its face indicates that he went inside the satchel as part of the protective frisk and search. Because defendant never raised his current lines of argument below, the People had no reason to think there was any relevant dispute on these matters to as to require an additional evidentiary showing or more specificity on the officer’s part, and the court had no reason to think that there was a legally or factually relevant distinction between the time of the arrest and the time of the search that it needed to address. Thus, it is unfair to both the People and the suppression court for defendant to advance these arguments now. B. The Record Supports the Lower Courts’ Conclusion that the Police Properly Searched Defendant’s Satchel Apart from defendant’s failure to preserve his claims, the existing record supports the lower courts’ decisions upholding the search of the satchel. As just described, defendant’s current complaints about that ruling center on the proposition -16- that Officer Ward first arrested him, only later took the satchel from him, and finally searched it at some subsequent point, when it was firmly under police control and the safety concerns expressed by Ward had necessarily dissipated. Defendant goes on at length about whether the exigency justifying a search incident to arrest must exist at the time of the arrest or the time of the search, but of course that only matters if there is a real temporal distinction between the two. For the reasons just stated, though, here there was no such distinction. Defendant’s view of the facts is not supported by the record that exists, and the record was not further developed on this point due to defendant’s complete failure to make an issue of it before the suppression court. Indeed, defendant’s disagreement about the operative facts marks this issue as one not even reviewable by this Court. After all, this Court is “a court of law, with no power of factual review.” People v. Calabria, 3 N.Y.3d 80, 83 (2004). In the Fourth Amendment context in particular, this Court has concluded that factual disputes, and even disputes about inferences to be drawn from the facts, are not within the purview of this Court. See, e.g., People v. Harrison, 57 N.Y.2d 470, 477 (1982); see also People v. Howard, 22 N.Y.3d 388, 403 (2013). Moreover, whether an exigency existed to justify police conduct is a mixed question of law and fact, beyond this Court’s review so long as there is support in the record for the lower courts’ determination. See, e.g., People v. Gibson, 24 N.Y.3d 1125, 1126 (2015). Specifically, whether an officer’s behavior was proper in light of a possible danger to police safety or the risk that evidence could be destroyed is a mixed question of law and fact. See People v. Kims, 24 N.Y.3d 422, 439-40 -17- (2014). These are the precise issues defendant presses here, involving, at best, for him, a “mixture of factual and legal elements” that are thus “resistant to this Court’s review.” See People v. Aveni, 22 N.Y.3d 1114, 1117 (2014). Here, the properly construed record fully supports the lower courts’ conclusion that the recovery of the tools from defendant’s satchel was proper under the search incident to arrest doctrine. Under the circumstances, the officer properly searched the satchel because the search was contemporaneous to defendant’s arrest; the satchel was within defendant’s grabbable area; and the officer reasonably believed it might contain evidence that, if accessed, could be used to harm the officer or his partner or easily destroyed. A search incident to a lawful, custodial arrest is an exception to the rule against warrantless searches. Arizona v. Gant, 556 U.S. 332, 338 (2009); United States v. Robinson, 414 U.S. 218, 224 (1973); People v. Reid, 24 N.Y.3d 615, 618-19 (2014); People v. De Santis, 46 N.Y.2d 82, 87 (1978), cert. denied, 443 U.S. 912 (1979). Generally speaking, that exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Gant, 556 U.S. at 338. The search incident to arrest exception allows police officers to contemporaneously search not just the arrestee’s person, but also containers within the arrestee’s “immediate control” or “grabbable area,” so long as the officers reasonably believe the container may contain a weapon or easily destroyed evidence. People v. Jimenez, 22 N.Y.3d 717, 721-22 (2014); People v. Gokey, 60 N.Y.2d 309, 312 (1983); People v. Smith, -18- 59 N.Y.2d 454, 458 (1983); see Gant, 556 U.S. at 339-343. Again, such “exigent circumstances” justify searches of containers to ensure “the safety of the public and the arresting officer” or “the protection of evidence from destruction or concealment.” Jimenez, 22 N.Y.3d at 722, quoting Gokey, 60 N.Y.2d at 312. Even searches occurring after the precise moment of an arrest are proper, so long as they are not “significantly divorced in time or place from the arrest.” Smith, 59 N.Y.2d at 458, citing People v. DeSantis, 46 N.Y.2d 82, 86 (1978); see Jimenez, 22 N.Y.3d at 721. Moreover, when the arrest is for a non-violent crime, a sufficient safety concern to support such a search may be established by police testimony articulating such a concern, so long as that concern is also “objectively reasonable.” See People v. Jimenez, 22 N.Y.3d at 722-23. Thus, for example, the police may not search a container when it is “so securely fastened” that the arrestee “cannot quickly reach its contents,” the arrestee “makes unmistakably clear that he will not seek to reach the contents,” or the container is too “small” to “contain a weapon or evidence of the crime.” Smith, 59 N.Y.2d at 458-59. The reasoning behind these principles is clear. A warrantless search of a closed container is permissible because, when the seizure of a closed container takes place on the street, close in time and place to an arrest, and in close proximity to the suspect, the police are still under the influence of a rapidly developing set of circumstances presenting potential dangers and requiring split-second decisions directly affecting their safety. The police thus should be allowed to act in furtherance of their own -19- safety where they have not yet ruled out the possibility that an arrestee will attempt to produce a weapon or destroy evidence in the container, regardless of whether or not he has been handcuffed. See Smith, 59 N.Y.2d at 459. In contrast, when the search of a closed container is sufficiently divorced in time or place from the arrest or the container has been reduced to the exclusive control of the police, such a possibility is unequivocally negated, and so it is appropriate to require a warrant. Smith, 59 N.Y.2d at 458. Here, Officer Ward searched defendant’s satchel “contemporaneously with” his arrest of defendant, while the satchel remained within defendant’s “grabbable area.” See Gokey, 60 N.Y.2d at 312-13; Smith, 59 N.Y.2d at 458-59. Although defendant repeatedly insists that Officer Ward searched his bag only after it was exclusively “in police hands” (Defendant’s Brief at 37, 41-42), once again, Officer Ward’s testimony showed otherwise. As previously discussed, the officer testified that he recovered the tools from defendant’s satchel during the “initial frisk and search,” which he conducted “[o]nce [he] stopped” defendant, and that at that moment the satchel was “on [defendant’s] person, on his body” (A. 19, 66). Accordingly, it is debatable whether the search should even be viewed as a search of a container rather than a search of defendant’s person. After all, the satchel was strapped to defendant’s body, and thus was functionally no different than a large jacket or pants pocket, and may have even been more readily accessible. In any case, the search was -20- contemporaneous to the arrest and, contrary to defendant’s suggestion, the satchel was still within defendant’s “grabbable area.” In these circumstances, Officer Ward searched the satchel before he could eliminate any possibility that defendant could reach it. Indeed, the Appellate Term expressly concluded that “the arrest and search were contemporaneous” (A. 2-3). In addition, as the hearing court specifically found (A. 84), the satchel was large enough to contain tools that could have been used as a weapon or that were evidence of the crime. And, as the hearing court further concluded (A. 83-84), the search was supported by the exigencies of both officer safety and evidence-preservation. Officer Ward’s testimony itself established a sufficient safety concern. As the officer testified, he searched defendant and his satchel to “locate weapons” that presented “possible threats” to himself or his partner (A. 20). Cf. Jimenez, 22 N.Y.3d at 722 (in finding lack of exigency, noting that officers did not testify that they feared for their safety); People v. Gokey, 60 N.Y.2d at 313-14 (no exigency where police did not search container immediately and conceded that they did not search it out of fear for their safety). Officer Ward’s fear was certainly reasonable. Defendant had just repeatedly used a hacksaw and, although that is not a per se weapon, it certainly could cause serious bodily harm. See generally People v. Owusu, 93 N.Y.2d 398, 400-01 (1999) (“any instrument,” “no matter how innocuous it may appear to be when used for its legitimate purpose,” may “become[ ] a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury”) (internal -21- quotations and alterations omitted); People v. Almodovar, 62 N.Y.2d 126, 132 (1984) (while a screwdriver is not a “dangerous instrument as a matter of law,” its possession could contribute to a “reasonably apprehended danger”). Moreover, the officer was understandably apprehensive about whether defendant might have additional sharp tools inside the satchel he wore. The satchel was sufficiently large to contain such tools. In the context of this “fast-developing [street] encounter[ ],” Officer Ward was reasonably fearful about the possibility that defendant could access such tools. See People v. Holmes, 81 N.Y.2d 1056, 1058 (1993). Notably, the suppression court gave “full credence” to Officer Ward’s testimony that he searched defendant’s satchel because he believed that it might contain a “dangerous tool” similar to one defendant had just dropped, and that he feared that defendant might access such a tool and use it against him or his partner (A. 77, 83-84). Defendant nevertheless insists that the “safety of the police” was “not at issue” (Defendant’s Brief at 36-38). To the extent that he means to attack the officer’s credibility, the hearing court’s findings to the contrary were amply supported by the record and thus “may not be disturbed by this court.” See People v. Brooks, 65 N.Y.2d 1021, 1023 (1985). To the extent he instead is contending that the search occurred too long after the arrest, or after the satchel had been reduced to exclusive police control, he has misread the record, as already demonstrated. Indeed, the officer’s fear was plainly warranted. Defendant points out that the officer had not actually seen him holding anything “that could be used as a weapon” -22- besides the hacksaw (Defendant’s Brief at 37), and boasts that he did not reach for another tool to “substitute” for the hacksaw (Defendant’s Brief at 42). But the very fact that defendant had carried and used a hacksaw understandably worried the officer during this night-time street encounter. Contrary to defendant’s claim that the officer had “no reason to fear for [his] safety at the time of the search” (Defendant’s Brief at 42), that defendant carried one dangerous tool made it more likely, not less, that he carried another. Given that during the 15 minutes the officer observed him, defendant had already demonstrated himself to be a determined (albeit unsuccessful) thief, the officer could have reasonably expected him to have carried more tools. And, of course, Officer Ward grabbed defendant before finding out whether he might reach for another tool. When the officer saw the bag strapped to defendant’s torso, therefore, it was objectively reasonable for him to fear that it could contain additional tools that could have been used as weapons. Furthermore, Officer Ward was alone when he apprehended defendant (A. 61), heightening the threat to his safety. Even with Officer Sweeney’s arrival as the arrest was underway (A. 61), the officers barely outnumbered defendant. The small number of officers involved increased the risk that defendant might be able to access the satchel. See People v. Smith, 59 N.Y.2d at 459 (exigent circumstances where two officers were involved in stop and search). That is especially true because the satchel was easily reachable by defendant, as it was strapped to his body. See People v. Capellan, 38 A.D.3d 393, 394 (1st Dept. 2007) (where at least two officers were on scene, exigent -23- circumstances existed because defendant was “still physically capable of reaching for the bag”), lv. denied, 9 N.Y.3d 873 (2007); People v. Thomas, 291 A.D.2d 462, 463-64 (2nd Dept. 2002) (where “arresting officer and his team” stopped defendant, exigent circumstances supported contemporaneous search of defendant’s bag “which was located within 10 feet of him”). Indeed, the fact that Officer Ward was initially alone and then, after the encounter was underway, was joined by only one other officer contrasts markedly with the circumstances in the cases cited by defendant (Defendant’s Brief 35-36). In those cases, even according to defendant, the suspects were “surrounded by officers,” effectively eliminating any possibility that they could reach the searched items. See Jimenez, 22 N.Y.3d at 723 (in discounting the threat posed by the defendant, noting that “[t]he detention and arrest occurred with at least four armed officers present, and possibly as many as eight”); People v. Morales, 126 A.D.3d 43, 46 (1st Dept. 2015) (defendant was handcuffed inside police car and “numerous officers” were on scene, rendering jacket on car’s trunk beyond defendant’s “grabbable area”); People v. Evans, 84 A.D.3d 573, 574-75 (1st Dept. 2011) (defendant was “in handcuffs, surrounded by four police officers, [and] enclosed by a 12-foot-high metal fence” separating him from backpack); People v. Julio, 245 A.D.2d 158, 158 (1st Dept. 1997) (search of bag occurred “subsequent” to defendant’s arrest “while en route to the police station,” and while defendant “was unable to reach the bag as he had been handcuffed and he was surrounded by several police officers”); see also People v. Jenkins, 24 N.Y.3d 62, 65 -24- (2014) (search improper under exigent circumstances doctrine where police had handcuffed suspects and removed them to different room, and thus were in “complete control” of situation, thereby eliminating risk that container’s contents would be destroyed or used against the public or police). Similarly unpersuasive is defendant’s argument that Officer Ward’s fear was unfounded because defendant was “fully cooperative” during the arrest (Defendant’s Brief at 37). After all, the officer saw that defendant was equipped with at least one tool that could have been used to inflict harm. Upon apprehending defendant, the officer searched his satchel immediately, before the officer could have been certain that defendant would offer no resistance. In those circumstances, it would have been unreasonable for Officer Ward to gamble that defendant’s momentary initial cooperation meant that defendant would not try to gain access to his satchel. Furthermore, although Officer Ward did not testify about the possibility that defendant might destroy evidence, it was apparent that this was also a reasonable concern, and thus an additional basis justifying the search of defendant’s satchel. When Officer Ward first stopped him, defendant dropped a hacksaw between two cars, breaking it. Defendant thus demonstrated that he was willing to destroy evidence, and gave every reason to think he might do so again. For instance, defendant might have pitched evidence into a sewer opening, rendering it unrecoverable. Defendant’s conduct and the surrounding circumstances, therefore, contrasted sharply with those of an arrestee who “makes unmistakably clear that he -25- will not seek to reach the contents” of a container, such as by placing it down and backing away from it. See People v. Smith, 59 N.Y.2d at 458-59. Finally, defendant expends a great deal of effort discussing whether the exigency supporting a search incident to arrest must exist at the time of arrest or the time of the search (Defendant’s Brief at 30-36). Defendant asserts that this Court’s precedent has been inconsistent and that, in light of Arizona v. Gant, it is clear that the exigency must be present at the time of the search, not the arrest. For the reasons already discussed, that argument is beside the point: under the actual record here, the arrest and search were practically simultaneous. In any event, defendant makes far too much of the purported discrepancies in the relevant precedents. This Court has consistently made clear that an arrest and the search incident to it cannot be significantly divorced in time or place. People v. Jimemez, 22 N.Y.3d at 721; People v. Smith, 59 N.Y.2d at 458; see People v. Gokey, 60 N.Y.2d at 312 (search must be conducted “contemporaneously with” arrest). Moreover, defendant reads too much into Gant. The issue there was whether the search of a car incident to an arrest was automatically valid simply because the defendant was a “recent occupant” of the car. Gant, 556 U.S. at 343. The Supreme Court rejected such a broad rule, and found the search invalid where the defendant had been taken out of the car, had been handcuffed, and had been secured in a police car before the police searched his car. Id. at 344. Obviously, as a factual matter, those circumstances were completely different than the ones that controlled in this case. Beyond that, given the facts and -26- the issue of law that were before the Supreme Court, Gant can hardly be read to mean that, in every search incident to arrest, the arrest and search have to occur at the same precise moment, or else the exigency at the time of the arrest can never carry over to the search. * * * In sum, defendant’s claim that the police improperly searched his satchel is unpreserved for this Court’s review. In any event, the lower courts’ determination that the search was justified as incident to arrest is supported by the record, and thus beyond this Court’s power of review. -27- CONCLUSION The order of the Appellate Term should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ANDREW E. SEEWALD Assistant District Attorney ALAN GADLIN ANDREW E. SEEWALD Assistant District Attorneys Of Counsel July 29, 2015 -28-