People v. Reid

• Citation: 26 N.E.3d 237,2014 N.Y. Slip Op. 08759,2 N.Y.S.3d 409,24 N.Y.3d 615
• Parties: The PEOPLE of the State of New York, Respondent, v. Graham REID, Appellant.
• Decision Date: 16 December 2014
• Court: New York Court of Appeals

24 N.Y.3d 615
26 N.E.3d 237
2 N.Y.S.3d 409
2014 N.Y. Slip Op. 08759

The PEOPLE of the State of New York, Respondent
v.
Graham REID, Appellant.

Court of Appeals of New York.

Dec. 16, 2014.

2 N.Y.S.3d 410

Davis Polk & Wardwell LLP, New York City (Antonio J. Perez–Marques, Marc J. Tobak and Gabriel Jaime of counsel), and Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York City (Peter R. Mitchell, John Schoeffel and Andrew C. Fine of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Richard Nahas and Vincent Rivellese of counsel), for respondent.

New York Civil Liberties Union Foundation, New York City (Alexis Karteron, Christopher Dunn and Philip Desgranges of counsel), for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

SMITH, J.

26 N.E.3d 238

24 N.Y.3d 617

The issue here is whether a search of a driver by the police officer who stopped his car was “incident” to the driver's arrest. We hold that it was not, because the record shows that, although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime.

I

Officer Jacob Merino testified at a suppression hearing that he followed the car defendant was driving while it crossed double lines into a lane of oncoming traffic, swerved in and out of its lane without signaling, and made a right turn without signaling. Merino stopped the car and approached it. He saw that defendant's eyes were “very watery” and his clothing was disheveled. There were plastic cups in the car's center console, and the officer detected an odor of alcohol. Merino asked defendant if he had been drinking, and received an odd answer:

24 N.Y.3d 618

defendant said he had a beer after getting off work at 4:00 p.m. —though his conversation with the officer took place at 5:00 in the morning. It is not disputed that the officer's observations gave him probable cause to arrest defendant for driving while intoxicated (though, as it later turned out, defendant's blood alcohol level was zero).

Merino asked defendant to step out of the car and patted him down. In the course of doing so, he found a switchblade knife in defendant's pocket. Defendant was then arrested.

In response to questions by the court, Merino gave the following testimony, referring to the moment when he asked defendant to get out of the car:

“THE COURT: At that point, were you going to arrest him?

“THE WITNESS: No.

“THE COURT: You weren't?

“THE WITNESS: No....

“THE COURT: So it's only because you ultimately found the switchblade that you arrested him?

“THE WITNESS: Yes, ma'am.”

Defendant's motion to suppress the knife was denied on the ground that the pat down was “justified as a search incident to arrest,” and defendant pleaded guilty to criminal possession of a weapon. The Appellate Division affirmed, holding that so long as probable cause to arrest defendant for driving while intoxicated existed, it was irrelevant whether Merino subjectively intended to make such an arrest

26 N.E.3d 239

2 N.Y.S.3d 411

(People v. Reid, 104 A.D.3d 58, 957 N.Y.S.2d 332 [1st Dept.2013] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 1008, 971 N.Y.S.2d 260, 993 N.E.2d 1283 [2013] ), and we now reverse.

II

The People make no claim that the pat down in this case was justified either by reasonable suspicion that defendant presented a danger to the officer or by probable cause to believe contraband would be discovered. The only justification the People offer for the search is that it was incident to a lawful arrest, and exempt for that reason from the general rule that searches require a warrant (see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 [1973] ). We reject the People's argument.

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while

24 N.Y.3d 619

intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search ..., we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People v. Evans, 43 N.Y.2d 160, 166, 400 N.Y.S.2d 810, 371 N.E.2d 528 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”] ). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 [2004] ). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not (People v. Evans, 43 N.Y.2d 160, 165, 400 N.Y.S.2d 810, 371 N.E.2d 528 [1977] ; People v. Erwin, 42 N.Y.2d 1064, 1065, 399 N.Y.S.2d 637, 369 N.E.2d 1170 [1977] ).

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