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SUPREME COURT SHOULD NOT HAVE DENIED SUPPRESSION ON A GROUND NOT RAISED BY THE PARTIES; THE APPELLATE COURT IS POWERLESS TO REVIEW THAT ISSUE; THE APPELLATE COURT IS ALSO POWERLESS TO REVIEW THE SECOND GROUND FOR SUPPRESSION ARGUED BY THE PEOPLE ON APPEAL BECAUSE THAT SECOND ISSUE WAS RESOLVED BELOW IN DEFENDANT’S FAVOR; MATTER SENT BACK TO SUPREME COURT FOR REVIEW OF THE SECOND ISSUE SHOULD THE PEOPLE BE SO ADVISED (SECOND DEPT).

The Second Department determined: (1) the motion court should not have decided the suppression motion on a ground not raised by the parties and the appellate court is powerless to review that issue (search valid pursuant to the automobile exception); (2) the other ground for upholding suppression argued by the People on appeal was decided in defendant’s favor and therefore the appellate court cannot review it (search valid as an inventory search). The denial of the suppression motion was reversed and the matter was sent back for review of the inventory search issue should the People be so advised:

The People’s current contention that the search of the defendant’s SUV was proper under the automobile exception to the warrant requirement because the police had probable cause to believe that the SUV contained a weapon is improperly raised for the first time on appeal … . … [T]he hearing record reveals … the People were relying solely on the theory that the gun was recovered pursuant to a lawful inventory search after the SUV was removed from the location. This Court “cannot uphold conduct of the police, and thereby affirm a trial court’s denial of suppression of evidence obtained pursuant to such conduct, on a factual theory not argued by the People before the trial court” … . …

As an alternative ground for upholding the suppression ruling, the People argue, as they did in the Supreme Court, that the recovery of the gun was lawful pursuant to a valid inventory search. However, because the Supreme Court decided the inventory search issue in the defendant’s favor, this Court is precluded from reviewing that issue on the defendant’s appeal … . …  Under the circumstances presented here, where we lack statutory authority to review an issue resolved in the appellant’s favor at a suppression hearing, the Court of Appeals has instructed that the required remedy is to “reverse the denial of suppression and remit the case to [the] Supreme Court for further proceedings” with respect to that issue … . People v Tates, 2020 NY Slip Op 07405, Second Dept 12-9-20

 

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