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137 March 2, 2014

Warrantless Search Of Closed Container And Exigent Circumstances

People v. Jiminez

2014 NY Slip Op 01262

New York Court of Appeals

Decided: February 25, 2014


Issue:  Whether the warrantless search of the defendant’s purse when the police arrested the defendant for trespassing when there were no exigent circumstances present.

Holding: The search was not justified and was illegal because there were no exigent circumstances for the search as is required under both the New York State Constitution and the U.S. Constitution.

Facts: Defendant was indicted for criminal possession of a weapon in the second degree 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.

 Police responded to a radio run reporting a burglary in progress. The radio run included descriptions of the suspects provided by the 911 caller, who had reported that two Latino males, between 5’9″ and 5’11”, were attempting to burglarize a fifth-floor apartment.

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.  Aldas then questioned defendant “to find out what she was doing 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.

 Manzari instructed two of the officers present to arrest defendant and Sanchez for trespassing.  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.

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.

Legal Analysis: The protections embodied in article I, section 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.

“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 NY2d 553. 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 location from the arrest”.

The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances.  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 NY2d at 312). 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 search incident to 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 NY2d at 311; see also Smith, 59 NY2d at 458-459).

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 AD2d 165 [1st Dept 1982], affd. In Johnson, police were responding to a radio run reporting a “man with a gun”. 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 defendant standing two feet away from a bed on which lay a bag that defendant 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 the defendant 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 non-violent 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 NY2d at 459).

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 NY2d 650, 654 [1996]; People v Moore, 32 NY2d 67, 72 [1973], cert denied 414 US 1011 [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, there was no indication that the demeanor or actions of either defendant or Sanchez lent them a threatening appearance in any respect. The testimony demonstrated that defendant was cooperative and offered no resistance to the removal of the purse from her shoulder, the ensuing frisk, or the placing of handcuffs. Furthermore, the unremarkable fact that a woman’s purse appeared heavy is insufficient, on its own, to support a reasonable belief that it contains either a weapon or destructible evidence. Unlike the witness in Johnson who made a statement to police accusing defendant of attacking him with a gun, the superintendent’s signals bore no indicia that defendant or her cohort were armed or otherwise dangerous.

Critically, that the arrest occurred when police were responding to a radio run for a burglary does not translate to exigency under these circumstances. There was simply nothing connecting defendant or her companion to the burglary. Besides a common ethnicity, there was no evidence that they matched the radio run description of the burglary suspects. Furthermore, the hearing testimony demonstrates that defendant was arrested for trespass, without any reasonable basis to suspect that she participated in the alleged burglary.

In sum, the People’s proof failed to demonstrate that the circumstances of defendant’s arrest gave rise to a reasonable belief that her purse contained either a weapon or destructible evidence. Our constitutional privacy protections demand a more robust evidentiary showing to invoke this exception to the warrant requirement. Absent the requisite exigency, the warrantless search of defendant’s purse incident to that arrest was improper and the gun discovered should have been suppressed.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted, the conviction of criminal possession of a weapon in the second degree vacated and that count of the indictment dismissed, the conviction of criminal trespass in the first degree reduced to criminal trespass in the second degree and the matter remitted to Supreme Court for resentencing.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.

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