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THE PEOPLE DID NOT DEMONSTRATE THE OFFICER WHO SEARCHED DEFENDANT’S PERSON INTENDED TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH; THEREFORE THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the People did not prove the officer who searched defendant’s person intended to arrest the defendant at the time of the search. Therefore the People did not prove the evidence was seized pursuant to a valid search incident to arrest and the evidence should have been suppressed:

Defendant was entitled to suppression of the cocaine and money recovered in a search of his person, which occurred after officers pulled over the minivan in which he was a passenger for two traffic violations and detected a strong odor of marijuana as they approached the van. An officer saw loose marijuana on defendant’s lap, asked him to step out of the car, and immediately frisked him, finding a small plastic bag in defendant’s pocket and a significantly larger one inside the top of his underwear. The drugs were not recovered in a valid search pursuant to a lawful arrest because the record fails to show that the officer had any intention of arresting defendant before recovering the cocaine … . People v Aragon, 2025 NY Slip Op 00055, First Dept 1-7-25

Practice Point: Unless the People prove the officer who searched defendant’s person intended to arrest the defendant when the search was done, the search is not a valid search incident to arrest and suppression is required.

 

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