THE SEARCH WAS NOT INCIDENT TO ARREST AS THE SUPPRESSION COURT RULED, CASE REMITTED FOR CONSIDERATION OF AN ALTERNATE GROUND FOR A VALID SEARCH WHICH WAS ARGUED BUT NOT RULED UPON BELOW. ​

The First Department determined the seizure of a knife from the defendant was not the result of a valid search incident to arrest. Because the People also argued the seizure was justified for officer safety, but the suppression court did not rule on that issue, the matter was remitted:

Although the record supports a finding that the officer had probable cause to arrest defendant for assault based on reliable information from the assault victim, the People failed to meet their burden … of demonstrating that the officer intended to arrest defendant for the assault at the time he recovered the knife … . The officer’s testimony, viewed as a whole, indicates that, when he noticed the knife upon approaching defendant and retrieved it from defendant’s pocket, the officer’s intent was to inquire about the assault in order to verify that defendant was indeed the man who had assaulted the victim. Further, it was not until after the officer had retrieved the knife and confirmed that it was a gravity knife that he asked about the assault.

The People argue, in the alternative, as they did at the hearing, that the officer’s act of taking the knife from defendant’s pocket, where the handle of the knife and its clip were in plain view, was permissible as a self-protective minimal intrusion … . . However, as the hearing court did not rule on this issue in denying the suppression motion, and therefore did not rule adversely against defendant on this point, we may not reach it on this appeal … . People v Simmons, 2017 NY Slip Op 05179, 1st Dept 6-27-17