People v. Smith

• Decision Date: 29 July 1982
• Parties: The PEOPLE of the State of New York, Appellant, v. Reggie SMITH, t/n Craig Smith, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 886

452 N.Y.S.2d 886

89 A.D.2d 549

The PEOPLE of the State of New York, Appellant, v. Reggie SMITH, t/n Craig Smith, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

July 29, 1982.

R. M. Pitler, New York City, for appellant.

R. J. Boyle, New York City, for defendant-respondent.

Before KUPFERMAN, J. P., and SANDLER, CARRO, LUPIANO and MILONAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 28, 1982, granting motion to suppress physical evidence, reversed on the law, and the motion to suppress is denied.

On April 28, 1981 two detectives observed the defendant enter a subway station without paying a fare. In response to a question the defendant admitted that he did not have a pass. He was then asked whether he was wearing a bullet proof vest and falsely responded that it was his T-shirt. One detective drew his gun, and the defendant was escorted to the porter's room. A brief case he was carrying was taken from him by a detective who opened it and found within a loaded .38 caliber pistol, handcuffs and other items. Almost simultaneously the defendant was handcuffed.

Although finding credible the testimony of the detectives, the hearing court granted defendant's motion to suppress the evidence in the brief case on the view that the search was unlawful. Relying upon U. S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the court held that "the warrantless search of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest if no exigency occurs." He also found, in what appears to have been an inadvertent error, that the defendant was in handcuffs before the brief case was opened.

We disagree with the court's conclusion that the search of the brief case was unlawful and accordingly reverse the order appealed from by the People and deny the motion to suppress.

The central question presented is whether, incident to a lawful arrest, the police may contemporaneously search the inside of a brief case, package, or the like, carried by the arrested person or effectively in his possession, after the object has been removed so that the arrested person no longer has ready access to it. In the wake of the three Belton decisions (People v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420; New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768; and People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745), the answer to that question is unclear.

The precise issue before us appears never to have been specifically addressed by the United States Supreme Court (see Arkansas v. Sanders, 442 U.S. 753, 764, fn. 11, 99 S.Ct. 2586, 2593, fn. 11, 61 L.Ed.2d 235), and the most recent of the decisions of the New York Court of Appeals relevant to the question, People v. Caldwell, 53 N.Y.2d 933, 440 N.Y.S.2d 927, 423 N.E.2d 404, in any event distinguishable on its facts, was decided before the decision of the United States Supreme Court in New York v. Belton, supra, which puts in doubt its continued viability.

The underlying difficulty has its genesis in the formulation of the governing rule by the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Addressing the right of the police to make a warrantless search of a home incident to a lawful arrest, the court said (at 763, 89 S.Ct. at 2040):

"There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."

This formulation left open two questions which have given rise to a variety of judicial approaches. One involved the question as to what was embraced in the term "within his immediate control," or "grabbable" area, as it has come to be called. The second was whether the right to search within the defined area was limited by the stated reasons and whether the right survived even where no practical possibility existed that the arrested person could secure a weapon or destroy evidence.

In People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49, the Court of Appeals squarely sustained as lawful the search of an attache case carried by the defendant, removed from him, and not within his effective power at the time of the search. This principle was confirmed under similar circumstances in People v. De Santis, 46 N.Y.2d 82, 412 N.Y.S.2d 838, 385 N.E.2d 577. In People v. Belton, supra, the Court of Appeals explicitly disapproved the holdings in Darden and De Santis. The court held with regard to the search of the pockets of a jacket in a vehicle, from which the occupants had been removed, the following (50 N.Y.2d at 449, 429 N.Y.S.2d 574, 407 N.E.2d 420):

"A warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article."

The Supreme Court reversed in New York v. Belton, supra, defining the area that may be...