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UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED.

The Second Department, reversing defendant’s conviction, determined, under state constitutional standards, the warrantless search of a messenger bag on defendant’s person at the time of his arrest was not justified by exigent circumstances. The court also noted that the prosecutor’s characterizing the defense as “beyond absurd” and comments upon defendant’s pre-arrest silence were improper:

Here, the Supreme Court concluded that the defendant’s messenger bag was lawfully searched incident to his arrest for burglary. However, the proof adduced at the suppression hearing failed to establish the presence of exigent circumstances justifying the warrantless search. Initially, there was insufficient evidence to support a finding of exigent circumstances relating to the safety of the public and the arresting officer … . Although the police officer who testified at the suppression hearing stated that he had responded to the scene after receiving a report of an individual climbing into a building through a rear window, there was no indication that the individual was armed … . Nor did the officer testify as to any circumstances indicating the presence of a weapon … . Furthermore, the police officer did not express any concerns about his own safety, or the safety of the public, and the circumstances of the defendant’s arrest did not serve to establish an objectively reasonable inference of police apprehension. People v Anderson, 2016 NY Slip Op 05927, 2nd Dept 8-31-16

CRIMINAL LAW (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/SEARCHES AND SEIZURES (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S INFLAMMATORY REMARKS AND REFERENCE TO DEFENDANT’S PRE-ARREST SILENCE IMPROPER)

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