People v. Lewis

• Decision Date: 04 June 1970
• Citation: 260 N.E.2d 538,26 N.Y.2d 547,311 N.Y.S.2d 905
• Parties: , 260 N.E.2d 538 The PEOPLE of the State of New York, Respondent, v. Edward LEWIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 905

311 N.Y.S.2d 905

26 N.Y.2d 547, 260 N.E.2d 538

The PEOPLE of the State of New York, Respondent, v. Edward LEWIS, Appellant.

Court of Appeals of New York.

June 4, 1970.

Max Feigin, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Bennett L. Gershman, and Michael R. Juviler, New York City, of counsel), for respondent.

SCILEPPI, Judge.

Defendant was convicted of possession of a dangerous weapon as a felony after a motion to suppress was denied prior to trial.

The pertinent facts establish that on December 5, 1967, at approximately 2:45 P.M., Patrolman Beedenbender was directing traffic at a school crossing in Manhattan when he observed three men, the defendant and two others, riding in an automobile bearing Virginia license plates. The officer recognized the defendant, the driver, since he had previously arrested the defendant for a narcotics offense. Although that charge was later dismissed, the officer became acquainted with the defendant's prior criminal record and knew 'there was a warrant (dated Feb. 1, 1965)--a hold on him from the 28th police squad, New York City * * * the hold was for 1308 of the Penal Law'. With this knowledge, the officer followed the defendant in the patrol car and, at a stop light, emerged from his car, approached the vehicle and asked the defendant to pull around the corner and park in front of the 30th precinct station house. The defendant complied and after arriving at the station house, the officer inspected the defendant's license and registration, which he found to be in order, and then took him into the precinct to see if the warrant was still outstanding. Inside, the defendant was taken up to the Detective Squad on the second floor where the officer telephoned the Manhattan South Warrants Squad. Learning that the warrant 'was still in force and effect', the officer placed the defendant under arrest. After advising the defendant of his rights, the officer then took the defendant back downstairs to his vehicle in which his companions were still seated. The officer then 'proceeded to search the vehicle', and under the front seat of the driver's side, found and removed a loaded .45 caliber revolver. The officer then took the other two occupants of the vehicle back into the precinct and arrested them for possession of the weapon.

The officer testified that the reason for making the search of the vehicle without either an arrest or search warrant 10 minutes after the defendant had been taken into custody was the recognized police practice 'to search both the defendant and any vehicle that he may occupy' after he is placed under arrest.

The defendant offered no evidence and the motion to suppress was denied.

On appeal, notwithstanding the District Attorney's concession of error, the Appellate Division affirmed, one Justice dissenting. In answer to the argument that the search could not be sustained as an incident to the arrest because of the lack of contemporaneousness, the court stated (33 A.D.2d 195, 306 N.Y.S.2d 197): 'We conclude that on the record before us, there is revealed a sufficient unity of time and place, attendant upon the defendant's arrest to justify the search'. The District Attorney has again conceded error in our court, however, this alone does not mandate a reversal. As was stated in Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917: 'Confessions of error are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.' Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942).'

Any discussion of the problem of the search of the vehicle without a warrant some time after a defendant has been placed under arrest must necessarily commence with Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. In Preston three men who had been seated in a parked car for several hours were arrested for vagrancy. Although the defendants were immediately searched for weapons, they were taken to the police station without any search having been made of the car. From the scene of the arrest, the car was driven by one of the officers to the station house from which it was later towed to a garage. Soon after the defendants had been booked, the officers went to the garage to search the vehicle and found two loaded revolvers in the glove compartment. Unable, however, to open the trunk, they returned to the station house where one of the officers was told to go back to the garage and try to get into the trunk. The officer did so and found several instrumentalities to commit crime. In holding that the search could not be sustained as an incident to the arrest, the court stated: 'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime--things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the...