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NO PROOF DEFENDANT’S BACKPACK WAS WITHIN DEFENDANT’S REACH WHEN IT WAS SEIZED AND SEARCHED; THEREFORE THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the search of defendant’s backpack could not be justified as a search incident to arrest because there was no evidence the backpack was within defendant’s reach when it was seized and searched:

The People failed to establish that the warrantless search of defendant’s backpack was a valid search incident to arrest … . The record does not contain evidence supporting a determination that the backpack was in defendant’s “immediate control or ‘grabbable area'” … . There is a lack of testimony in the record indicating where the bag was in relation to defendant immediately prior to the search. Because Supreme Court denied defendant’s suppression motion without reaching the People’s alternative argument raised in opposition, we remit the matter to Supreme Court … . People v Mabry, 2021 NY Slip Op 03348, CtApp 5-27-21

 

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