THE SEARCH OF A CAR AFTER DEFENDANT HAS BEEN REMOVED FROM THE CAR CANNOT BE CONSIDERED A SEARCH INCIDENT TO ARREST; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling:

The court improperly denied defendant’s motion to suppress the PCP recovered from the vehicle. As the People concede, the search of the vehicle could not be justified as a search incident to arrest because, at the time of the search, defendant and the driver had already been removed from the car and were in handcuffs. Anything inside of the car was no longer in defendant’s grabbable area or immediate control, and the People failed to demonstrate the existence of exigent circumstances to justify the search … . People v Ortiz, 2024 NY Slip Op 00745, First Dept 2-13-24

Practice Point: Once a defendant has been removed from a car, a search of the car cannot be a search incident to arrest because the interior of the car is no longer in defendant’s grabbable area or immediate control.