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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

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Show-Up Identification Should Have Been Suppressed—Defendant Was Only Person In the Street, Was In Hand-Cuffs, and Was Surrounded by Police

The Second Department determined the complainant’s in-court and pre-trial identification of the defendant should have been suppressed. After the complainant identified the defendant in the show-up, the complainant told the police all the burglars were wearing masks.  The error, however, was deemed harmless.  Probable cause to arrest the defendant existed prior to the show-up:

Here, the hearing testimony demonstrated not only that the perpetrators’ faces were covered during the entire time the complainant was with them, but also that the only description the complainant had previously provided to the police was that the perpetrators were black males. Under these circumstances, it cannot be said that the complainant’s pretrial and in-court identification of the defendant was not founded on the fact that the defendant was the only person standing in the street, in handcuffs, surrounded by the police with high-beam headlights shining on his face, during the showup proceeding … . Nevertheless, the error in admitting this identification evidence at trial was harmless since the other evidence of the defendant’s guilt, including oral and written statements he gave to the police admitting to his participation in the burglary, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction … . People v Williams, 2015 NY Slip Op 03390, 2nd Dept 4-22-15

 

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Search of Backpack Which Was No Longer In Defendant’s Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances

In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant’s backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant’s clothes.  The defendant was handcuffed and his backpack was placed on a car about three feet away.  After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack.  At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:

Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. “On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . For “compelling reasons,” including the safety of the officers or the public, “a search not significantly divorced in time or place from the arrest’ may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police” … . People v Alvarado, 2015 NY Slip Op 01955, 2nd Dept 3-11-15

 

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Warrantless Search of Defendant’s Jacket Not Justified–Defendant Was Handcuffed Inside a Police Car and Jacket Was Outside the Car

The First Department, in a full-fledged opinion by Justice Richter, over a dissent, determined that the warrantless search of defendant's jacket could not be justified.  The defendant was handcuffed and sitting in the back of a police car when the jacket, which was on the trunk of the police car, was searched:

“[A]ll warrantless searches presumptively are unreasonable per se,” and, “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming” this presumption of unreasonableness … . As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]…). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment … .  * * *

Here, the jacket was unquestionably outside defendant's grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it… .

Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled … . People v Morales, 2015 NY Slip Op 01190, 1st Dept 2-10-15

 

Error Associated With Defendant’s Being Handcuffed During the Suppression Hearing Harmless/Error Associated with Defendant’s Wearing a Stun Belt During Trial Waived

The Fourth Department, in affirming defendant’s first degree murder conviction, determined the court’s failure to place on the record the reason defendant was hand-cuffed during the suppression hearing was harmless error, and the error associated with the defendant’s wearing a stun belt during the trial was waived:

With respect to being restrained in handcuffs, the court denied defense counsel’s request to remove defendant’s handcuffs during the suppression hearing in accordance with the County Sheriff’s policy. Although the court’s response was error, inasmuch as a court “must state a particularized reason for [restraining defendant] on the record” even at a bench trial …, we nevertheless conclude that the error is harmless beyond a reasonable doubt because the error “did not contribute to the [court’s decision]” on the suppression issue … . With respect to the stun belt, we note that the requirement to wear the stun belt is not a mode of proceedings error and, therefore, such an error may be waived … . Here, defendant waived his contention because he agreed to wear the stun belt, despite the court having informed defendant that he was entitled to a hearing to make findings as to the necessity of the belt … .  People v Ashline, 2015 NY Slip Op 00037, 4th Dept 1-2-15

 

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Warrantless Search of Backpack After Juvenile Was Handcuffed and Placed in a Police Car Justified by “Close Spatial and Temporal Proximity” and “Exigent Circumstances”

The First Department affirmed a juvenile delinquency adjudication based upon the juvenile’s possession of an air pistol, which was discovered in a warrantless search of the juvenile’s backpack after the juvenile was handcuffed.  In explaining why the suppression motion was properly denied, the court wrote:

The police lawfully detained appellant as a suspected truant … . In the course of this detention, the police lawfully patted down appellant’s book bag, particularly since as appellant approached the police car, the bag hit the car, making a distinctive metallic sound that the officer recognized as the sound of a firearm. In patting down the bag, an officer felt the distinctive shape of a pistol, including its grip and trigger guard. The warrantless search of the bag, after appellant had been handcuffed and placed in the police car, was justified by close spatial and temporal proximity, as well as by exigent circumstances … . These circumstances included the fact that defendant resisted arrest, the officers’ knowledge that appellant was on probation in connection with a past robbery and that he had resisted arrest before, the officers’ high level of certainty that the bag actually contained a weapon, and the danger of appellant reaching the bag, despite being handcuffed, while seated in the police car next to the officer who had the bag. Matter of Kenneth S, 2014 NY Slip Op 07299, 1st Dept 10-28-14

 

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No Justification for Handcuffing Defendant/Handcuffing Constituted an Arrest Before Officer Had Probable Cause to Arrest

The First Department determined probable cause for defendant’s arrest did not exist when defendant was handcuffed and the act of handcuffing constituted an arrest, not a detention pending information providing probable cause:

During a buy and bust operation, a ghost undercover detective issued a radio transmission identifying defendant as a participant in a drug sale, made to another undercover officer. Based on that radio transmission describing defendant and his location, a third officer approached defendant on the sidewalk, identified himself, and asked defendant to put his hands up. When defendant acted “a little resistant,” the officer attempted to handcuff him. Defendant then resisted, and the police forcibly handcuffed him.

The suppression court [ruled] that although when the officer stopped the defendant, he did not have probable cause to arrest him based on the information that he had received from the radio transmission, the officer obtained probable cause to arrest defendant after the purchasing undercover officer subsequently radioed his confirmatory identification. …[By] finding that there was no probable cause to arrest defendant until the confirmatory identification, the court implicitly found that the initial apprehension, which preceded that identification, was a proper temporary detention based on reasonable suspicion and that the application of handcuffs on defendant did not transform the detention into a full-scale arrest.

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances … . In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. People v Blanding, 2014 NY Slip Op 02508, 1st Dept 4-10-14

 

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Showup Identification of the Hand-Cuffed Defendant Made in the Police Station Parking Lot 90 Minutes After the Crime Should Have Been Suppressed

The Fourth Department reversed defendant’s conviction and sent the matter back for a Wade hearing to determine whether the eyewitness had an independent basis for his in-court identification of the defendant.  The show-up identification made by the eyewitness was deemed invalid and should have been suppressed:

…[D]efendant contends that County Court erred in refusing to suppress showup identification testimony with respect to him.  We agree. “Showup identifications are disfavored, since they are suggestive by their very nature” …. .  Here, the showup identification procedure was conducted in the parking lot of a police station, approximately 90 minutes after the occurrence of the crime, while defendant was handcuffed and while uniformed police officers and ambulance personnel were in the parking lot.  The totality of the circumstances of this showup identification procedure presses judicial tolerance beyond its limits …, and we conclude under the facts and circumstances of this case that the showup identification procedure was infirm… .  People v Burnice, 1343, 4th Dept 1-3-14

 

Handcuffing Defendant Constituted an Arrest/Defendant’s Actions Did Not Justify Use of Handcuffs

The First Department, contrary to the suppression-hearing court, determined the act of handcuffing the defendant constituted an arrest.  [The matter was sent back to allow the hearing court to determine whether a radio transmission from a fellow officer provided probable cause for the arrest, an issue the hearing court had not ruled upon.]:

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances (see People v Acevedo, 179 AD2d 465, 465-66 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. The fact that defendant was “a little resistant” when told to put up his hands is not, on its own, sufficient to establish that the officers had any difficulty restraining defendant. Rather, like Acevedo, this case presents a situation in which the officers’ initial use of handcuffs was not warranted by the threat confronting them…, so that the detention exceeds the proper bounds of an intrusion made on less than probable cause. People v Blanding, 2013 NY Slip Op 07692, 1st Dept 11-19-13

 

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Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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