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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the warrantless search of defendant’s backpack was not justified. The appeal was heard because the waiver of appeal was deemed invalid:

Officer Musa approached the defendant, who, in response to Officer Musa’s inquiry, provided his name. The defendant was carrying a backpack, and Officer Musa observed what appeared to be credit cards or identification cards in an outside mesh pocket. Officer Musa arrested the defendant for criminal trespass, handcuffed him, and removed the backpack from the defendant. Officer Musa then searched the backpack at the scene of the arrest … . * * *

” All warrantless searches presumptively are unreasonable per se,’ and, thus, [w]here a warrant has not been obtained, it is the People who have the burden of overcoming’ this presumption of unreasonableness” …. ” [E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag'” … . People v Chy, 2020 NY Slip Op 03244, Second Dept 6-10-20

 

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