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ALTHOUGH THE POLICE HAD PROBABLE CAUSE TO ARREST AFTER WITNESSING HAND-TO-HAND EXCHANGES, THEY DID NOT INTEND TO ARREST DEFENDANT BECAUSE THE BUYERS WERE NOT APPREHENDED; THEREFORE THE SEARCHES OF DEFENDANT’S PERSON WERE NOT VALID SEARCHES INCIDENT TO ARREST; SUPPRESSION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress the firearm, knife and phone found in a search of defendant’s person should have been granted. The police witnessed defendant make “hand-to-hand” exchanges of a small object for money. At the street stop, the officers did not intend to arrest the defendant because the buyers were not apprehended. The officers intended to issue a disorderly conduct summons. But when defendant said he had no identification, the officers decided to take him to the precinct. The searches of defendant’s person took place before and after transport to the precinct:

… [T]he officers had an established intention not to arrest for potential drug charges. With this intention not to arrest for potential drug charges established, such a basis for the arrest is properly considered in the manner of the potential driving while intoxicated charge in People v Reid (24 NY3d 615, 618-619 [2014])—that is, a charge for which facts known to the arresting officers would have supported a lawful arrest and search incident thereto but for record-demonstrated affirmative lack of intent to arrest on such a basis at the time of the search … . * * * [I]n the absence of the alleged disorderly conduct violation, the officers’ search would have been unlawful for reasoning identical to that in Reid … .

… [T]he motion court denied defendant’s suppression motion on the ground that defendant was properly arrested for disorderly conduct (Penal Law § 240.20) based on evidence that he was making “unreasonable noise” with the portable speaker he wore around his neck. On appeal, the People do not contend that the arrest was lawful on this basis, nor do they argue that defendant’s arrest was permitted based on any failure of defendant to identify himself under CPL 150.20(1)(b)(iii). People v Fulladosa, 2026 NY Slip Op 05458, First Dept 9-24-26

Practice Point: If the police do not intend to arrest a defendant despite the existence of probable cause, any search of the defendant’s person cannot be justified as a search incident to arrest.

 

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