People v. Jimenez
| Decision Date | 25 February 2014 |
| Citation | 2014 N.Y. Slip Op. 01262,22 N.Y.3d 717,985 N.Y.S.2d 456,8 N.E.3d 831 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Josefina JIMENEZ, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Steven Banks, The Legal Aid Society, New York City (Richard Joselson of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests, including their personal effects. In the context of warrantless searches of closed containers incident to arrest, the People bear the burden of demonstrating the presence of exigent circumstances in order to invoke this exception to the warrant requirement. Because the People failed to meet that burden in this case as a matter of law, defendant's motion to suppress should have been granted. We therefore reverse the Appellate Division order to remedy this error.
Defendant was indicted for criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal trespass in the first degree (Penal Law § 140.17[1] ) after the search of her purse incident to an arrest for trespassing resulted in the discovery of a loaded handgun. Defendant moved to suppress the gun and a hearing was granted. At the hearing, the court heard testimony from Sergeant Manzari and Officer Barnes, two of the police officers present at the time of defendant's arrest.1
Just before noon on May 23, 2008, police responded to a radio run reporting a burglary in progress at 2255 Barker Avenue in the Bronx, an apartment building participating in Operation Clean Halls, a program through which police officers are authorized entry into privately owned buildings to conduct patrols. The radio run included descriptions of the suspects provided by the 911 caller, who had reported that two Latino males, between 5 feet, 9 inches and 5 feet, 11 inches, were attempting to burglarize a fifth-floor apartment. Sergeant Manzari and his partner, Officer Aldas, were the first to arrive on the scene. They began by checking the rear exterior of the building, which was boarded up due to ongoing construction, leaving no rear access. Manzari and Aldas then circled back to the front entrance, where they were soon joined by between four and six additional officers. Manzari sent a pair of officers upstairs to conduct a vertical sweep and to locate and interview the 911 caller.
Upon entering the building, Manzari and Aldas observed defendant coming into the lobby from what appeared to be a stairwell. She was in the company of a Latino male, Alberto Sanchez. Another woman, who was later identified as the building superintendent, pointed at defendant and Sanchez and “made a face” in a manner Manzari interpreted as a request for the police to stop them, though she gave no intimation of weaponry. Manzari also instructed an officer to move the superintendent aside “for safety reasons.” At Manzari's direction, Officer Aldas then questioned defendant “to find out what she was doing in the building, if she was trespassing in the building.” Her answers were contradictory and equivocal: while she initially stated that she was there to visit a friend, she then claimed she was in search of a notary, but could provide neither names nor apartment numbers associated therewith. There were “No Trespassing” signs posted in the lobby.
At this point, Sergeant Manzari instructed two of the officers present to arrest defendant and Sanchez for trespassing. Officer Pagan approached defendant while another officer prepared to arrest Sanchez. Pagan proceeded to remove from defendant's shoulder a large purse, which—from Officer Barnes' standpoint—appeared to be heavy. Pagan then opened the bag and saw a handgun inside. After Pagan informed Manzari that the bag contained a gun and that it appeared to be loaded, the Sergeant instructed her to secure the weapon. Thereafter, Pagan handcuffed defendant and transported her to the precinct for processing.
The trial court denied defendant's motion to suppress the gun, ruling that the search of defendant's purse was justified for safety reasons. The court determined that the purse was not within the police's exclusive control at the time of the search and that the superintendent's gestures suggested that defendant and Sanchez were in some way connected to the burglary. Defendant was convicted, after a jury trial, of the counts charged.
The Appellate Division affirmed (98 A.D.3d 886, 950 N.Y.S.2d 700 [1st Dept.2012] ), concluding, in relevant part, that the search was proper given that “[t]he bag was large enough to contain a weapon and was within defendant's grabbable area at the time of her arrest for criminal trespass in connection with the police investigation of a burglary” ( id. at 886, 950 N.Y.S.2d 700). The court further determined that the police lacked exclusive control over the bag and that the “surrounding circumstances ... support a reasonable belief in the existence of an exigency justifying a search of the bag, even though the officers did not explicitly testify at the suppression hearing that they feared for their safety” ( id.). A Judge of this Court granted leave to appeal (20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622 [2012] ), and we now reverse.
“All warrantless searches presumptively are unreasonable per se,” and, thus, “[w]here a warrant has not been obtained, it is the People who have the burden of overcoming” this presumption of unreasonableness ( People v. Hodge, 44 N.Y.2d 553, 557, 406 N.Y.S.2d 736, 378 N.E.2d 99 [1978];see also People v. Calhoun, 49 N.Y.2d 398, 402, 426 N.Y.S.2d 243, 402 N.E.2d 1145 [1980];Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 [1969] ). Under the State Constitution, to justify a warrantless search incident to 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” ( People v. Smith, 59 N.Y.2d 454, 458, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983] [quotation marks omitted]; see also People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723 [1983];People v. Langen, 60 N.Y.2d 170, 181, 469 N.Y.S.2d 44, 456 N.E.2d 1167 [1983] ).
The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances ( Gokey, 60 N.Y.2d at 313, 469 N.Y.S.2d 618, 457 N.E.2d 723;Smith, 59 N.Y.2d at 458, 465 N.Y.S.2d 896, 452 N.E.2d 1224;see also Langen, 60 N.Y.2d at 181, 469 N.Y.S.2d 44, 456 N.E.2d 1167). We have 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” ( Gokey, 60 N.Y.2d at 312, 469 N.Y.S.2d 618, 457 N.E.2d 723). Exigency must be affirmatively demonstrated. Accordingly, even a bag “within the immediate control or ‘grabbable area’ of a suspect at the time of his arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” ( Gokey, 60 N.Y.2d at 311, 469 N.Y.S.2d 618, 457 N.E.2d 723;see also Smith, 59 N.Y.2d at 458–459, 465 N.Y.S.2d 896, 452 N.E.2d 1224).
The crime for which there is probable cause to make the arrest may itself provide the requisite exigency ( see e.g. People v. Johnson, 86 A.D.2d 165, 449 N.Y.S.2d 41 [1st Dept.1982], affd. for reasons stated below59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246 [1983] ). In Johnson, police were responding to a radio run reporting a “man with a gun” ( Johnson, 86 A.D.2d at 166, 449 N.Y.S.2d 41). The building superintendent informed them that the suspect had struck him in the head with a pistol, tried to shoot him, and retreated to an apartment. Upon entering that apartment, the police discovered the defendant standing two feet away from a bed on which lay a bag that he identified as his own. We held the search to be valid because the bag was within defendant's grabbable area at the time of the arrest and the police reasonably believed that he was armed.
Exigency may also derive from circumstances other than the nature of the offense. In Smith, for example, the defendant was arrested for the nonviolent offense of turnstile jumping, but we held that the warrantless search of his briefcase was reasonable because he wore a bulletproof vest and denied this fact when questioned by police ( see Smith, 59 N.Y.2d at 459, 465 N.Y.S.2d 896, 452 N.E.2d 1224).
However, we reached the opposite result in Gokey, where no exigency existed to justify the search of defendant's duffel bag. Defendant there was arrested for two nonviolent crimes and no less than five officers were on the scene. In addition, the People conceded that the police did not fear for their safety, but merely searched the bag because they suspected it contained drugs.
Likewise, the gun here should have been suppressed because the People failed to meet their burden as to the exigency requirement. Neither Sergeant Manzari nor Officer Barnes testified that he feared for his safety or for the integrity of any destructible evidence. While an officer need not affirmatively testify as to safety concerns to establish exigency, such apprehension must be objectively reasonable ( see People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996];People v. Moore, 32 N.Y.2d 67, 72, 343 N.Y.S.2d 107, 295 N.E.2d 780 [1973],cert. denied414 U.S. 1011, 94 S.Ct. 376, 38 L.Ed.2d 249 [1973] ).
That was not the case here. The detention and arrest occurred with at least four armed officers present, and possibly as many as eight. Moreover,...
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