People v. Isaac

• Decision Date: 08 April 1963
• Citation: 239 N.Y.S.2d 624,38 Misc.2d 1018
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Charles ISAAC, Defendant.

Page 624

239 N.Y.S.2d 624

38 Misc.2d 1018

The PEOPLE of the State of New York v. Charles ISAAC, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXX.

April 8, 1963.

Frank S. Hogan, Dist. Atty. (Lemuel B. Schofield, New York City, of counsel), for the People.

Max Lichtenberg, New York City, for defendant.

JOSEPH A. SARAFITE, Justice.

The defendant was indicted for feloniously possessing a narcotic drug in violation of Penal Law Section 1751. He now moves to suppress evidence allegedly obtained as the result of an unlawful search and seizure. No hearing was held, the parties having agreed that the issue be decided upon the basis of the undisputed facts elicited upon the preliminary examination. Accordingly, the court finds the facts to be as stated herein.

At about 12:45 A.M. on November 21, 1962, a New York City Police Officer observed the defendant in a car parked on a street near the rear exit of a theatre. After about fifteen minutes, the defendant began to drive the car down the street, and the officer signaled him to stop. The defendant stopped, and the officer asked him to exhibit his operator's license and certificate of registration. He was unable to do so. The officer asked for evidence of identity, which the defendant was also unable to produce. The defendant then stated that his operator's license, certificate of registration and evidence of identity were in the theatre which he had just left. The officer agreed to accompany him back to the theatre. While they were walking there, the officer questioned the defendant concerning the ownership of the car. The defendant's answers were conflicting, and the officer decided that he could not believe what the defendant was saying. He then placed the defendant under arrest for driving an unregistered motor vehicle without an operator's license in violation of Vehicle and Traffic Law Sections 401, subd. 1, par. a and 501, subd. 4, par. a. ¹ The officer then searched the defendant, found a substance later analyzed as Cannabis, and arrested him for violation of Penal Law Section 1751. The traffic charges were later dismissed when the defendant produced in court his registration certificate and operator's license.

The issues presented here are: (1) whether a police officer may lawfully stop a moving vehicle for the sole purpose of determining whether its driver has a certificate of registration and an operator's license; (2) whether a person arrested for driving without these documents may lawfully be searched incident to that arrest; and, if so, (3) whether such an arrest, and thus the search incident thereto, becomes illegal by virtue of the fact that the charges are subsequently dismissed.

The defendant argues first that the officer had no authority to order him to stop his automobile and produce his certificate of registration and operator's license, and that therefore the conduct of the officer constitutes an illegal arrest, causing the subsequent search to be illegal. However, Section 401, subd. 4 provides in part that: 'Every person operating a motor vehicle * * * shall upon demand of any * * * peace officer * * * produce for inspection the certificate of registration * * * for such vehicle and shall furnish to such * * * officer * * * all information required concerning his license to operate * * *.' This provision imposes no limitation upon an officer's right to demand production of the documents in question. The defendant's argument has recently been rejected by the Court of Appeals (People v. Battle, 12 N.Y.2d 866, 237 N.Y.S.2d 341, 187 N.E.2d 793 [1962]) and is similarly rejected here.

The defendant's second argument is that although a search of the person is lawful when conducted incident to a lawful arrest (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 [1961]; People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95 [1962]), a police officer may not search a person whom he has arrested for a mere traffic violation. He argues that the right to search incident to a lawful arrest 'is confined solely to fruits, instrumentalities or contraband connected with the crime' for which the person searched has been arrested, and that there are no fruits, instrumentalities or contraband connected with the crime of driving without an operator's license and certificate of registration. In support of this argument he cites: People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57 (Cal.1956); People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16 (1959); People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (1960); and People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (1960).

However, it is clear that one of the purposes of a search incident to a lawful arrest is 'to remove weapons or other instrumentalities which might be used to resist the officers or for escape or similar purposes' (Taglavore v. United States, 291 F.2d 262, 265 [9th Cir.1961]). That this is a legitimate purpose of such a search has also been recognized by the United States Supreme Court in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925). It is true, of course, that there is little likelihood that a person arrested for a traffic violation will attempt to use a weapon in order to effect an escape. But there is a risk, and a police officer who has made a lawful arrest should not be forced to run it.

The cases cited by the defendant are not inconsistent with the position taken here. In the Blodgett case, the court stated that when a person is arrested for a traffic violation, the police may not make an incidental search of his automobile; search of the person was not in issue. In the Gonzales case, the court found that the police intended only to issue a summons, not to arrest for purposes of incarceration. The court specifically stated that where a traffic arrest is made with intent to incarcerate, justification for an incidental search may exist. The Zeigler case is similar, for there, too, the defendant was given a summons; there was no holding that an incidental search may not be made of a person actually taken into custody for a traffic violation. And in the Watkins case, the court stated that arrests for certain traffic violations would justify an incidental search, giving examples not too dissimilar from the facts of the present case. The rule that an officer may conduct a search incident to a lawful arrest for a traffic violation applies whenever, as here, the traffic arrest is a bona fide arrest. A different rule may apply when the traffic arrest is a mere pretext used by the police in an attempt to justify a search for the fruits or instrumentalities of some unrelated crime (See Taglavore v. United States, supra).

The final issue in this case is whether, under the rule stated in People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819 (1st Dept. 1961), affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812 (1962), the dismissal of the traffic charges rendered unlawful the traffic arrest, and thus the search conducted incident thereto. In the Dreares case, it was held that an acquittal on a charge of loitering established that the crime had not been committed, and that the arrest for that crime, a misdemeanor, was thus illegal under Code of Criminal Procedure Section 177, thereby giving the person arrested the right to resist the arrest. The rule of the Dreares case does not apply here, for the...