| People v Mangum |
| 2015 NY Slip Op 00796 [125 AD3d 401] |
| February 3, 2015 |
| Appellate Division, First Department |
[*1](February 3, 2015)
| The People of the State of New York,Respondent, v Jermel Mangum, Appellant. |
Steven Banks, The Legal Aid Society, New York (John Schoeffel of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at suppressionhearing; Michael J. Obus, J., at plea and sentencing), rendered September 20, 2012,convicting defendant, upon his plea of guilty, of criminal possession of a weapon in thesecond degree and criminal possession of a controlled substance in the third degree, andsentencing him, as a second felony drug offender, to an aggregate term of five years,unanimously reversed, on the law, defendant's motion to suppress granted, and theindictment dismissed.
On January 26, 2012, police officers Maurad Arslanbeck and David Porras wereassigned to patrol a housing complex on the Lower East Side of Manhattan. The officersfirst observed defendant walking through a courtyard along with two other men, eachholding a styrofoam cup. Defendant was carrying a thin backpack that sagged heavily onits right side. As the trio continued walking, the officers observed defendant discard thestyrofoam cup onto the grass.
The officers then approached the men from opposite directions. Officer Arslanbeckreported seeing defendant adjust his backpack to place it higher up on his shoulder andhearing a clinking sound emanating from inside the bag. The officers identifiedthemselves and after some questions, defendant stated that his backpack containedbooks. Defendant was then instructed to place the backpack on the ground and theofficers reported hearing the sound of a clinking metal object as the bag was beingmoved. Officer Porras picked the bag up from the ground and felt the barrel of ahandgun. Defendant was then arrested. At this point, Officer Porras opened the bag andconfirmed the presence of a firearm. At the precinct, defendant was searched and a smallquantity of marijuana as well as several glassines of heroin were recovered from hisperson.
Defendant moved to suppress all of the physical evidence against him, arguing that itwas obtained through illegal searches in contravention of the Fourth Amendment. Thetrial court held that the police did not have reasonable suspicion to stop defendant andfrisk his backpack. It nevertheless denied the motion, finding that the evidence wasobtained pursuant to a lawful search incident to arrest. The court reasoned that since thepolice had probable cause to arrest defendant for littering once he discarded thestyrofoam cup, the search of the backpack was authorized as incident to the arrest thatcould have been made, regardless of whether the officers had any actual intent to arrestdefendant for littering. Based on the recent Court of Appeals [*2]decision in People v Reid (24 NY3d 615 [2014]), which holds that there must be either an actual or intended arrest for theoffense justifying the search, we now reverse.
It is well recognized that the police may search the person or area within theimmediate control of any individual who is lawfully placed under arrest (see People vWylie, 244 AD2d 247, 249 [1st Dept 1997], lv denied 91 NY2d 946 [1998];Chimel v California, 395 US 752, 762-763 [1969]). The warrantless searchincident to arrest advances the twin objectives of ensuring the safety of law enforcementand the prevention of evidence tampering or destruction by a suspect. It is notparticularly significant whether a search precedes an arrest or vice versa, so long as thetwo events occur in a nearly contemporaneous manner (People v Verges, 120 AD3d1028, 1029 [1st Dept 2014], lv denied 24 NY3d 1047 [2014]; People vEvans, 43 NY2d 160, 166 [1977]). Based on Reid, however, it is now clearthat the police must either make an arrest or intend to make an arrest at the time of thesearch in order for the search to be considered lawful (24 NY3d 615). The intent to arrest for the offense justifying the search must be present even if adefendant is ultimately arrested for a different offense (id.).
In Reid (24 NY3d 615 [2014]), the defendant was pulled over by a policeofficer after he was observed driving erratically. Based on the defendant's disheveledappearance and odd responses to questions, the officer ordered him out of the car,searched his person, and uncovered a knife in his pocket. Although it was undisputedthat the officer's observations gave him probable cause to arrest the defendant for drivingwhile intoxicated, the officer testified at the suppression hearing that he had no intentionof arresting the defendant at the time he was initially stopped and searched. The officeralso explained that it was not until discovery of the knife that he decided to arrest thedefendant. In declining to uphold the search as incident to the defendant's arrest, theCourt of Appeals observed that "but for the search," the arrest "would never have takenplace" (24 NY3d at 620), concluding that it was irrelevant that an arrest for DWI could have been madeprior to the search. The Court explained that the search must be "incident to an actualarrest, not just to probable cause that might have led to an arrest, but did not" (24 NY3d at 619). This necessarily requires that, at the time the search is undertaken, an arrest haseither been made or the officer has already formulated the intent to effectuate anarrest.
While in this case the officers had probable cause to arrest defendant for littering(see Administrative Code of City of NY § 16-118; Atwater vLago Vista, 532 US 318, 354 [2001]), defendant was not arrested for that offense.Nor did either of the officers testify at the suppression hearing that they harbored anyintent to arrest defendant until they discovered the gun. According to officer Arslanbeck,it was only after they discovered a weapon in defendant's backpack that a decision toarrest him was made. Without an actual arrest or the formulation of an intent to arrestdefendant for littering prior to frisking his bag, the search cannot be justified as havingbeen incident to defendant's arrest (Evans, 43 NY2d at 166; Knowles vIowa, 525 US 113 [1998]).
The trial court found that the officers otherwise lacked reasonable suspicion to stopdefendant, a conclusion that the People do not contest on appeal. Consequently, theevidence [*3]obtained from defendant's backpack andfrom the subsequent search at the precinct should have been suppressed. In light of ourdecision that the search was unlawful, we need not address defendant's remainingarguments. Concur—Tom, J.P., Friedman, Acosta, DeGrasse and Gische, JJ.