People v. Evans

Simons, J. (dissenting).

I disagree with the majority’s holding that a police officer having probable cause to make an arrest may, without more, conduct a warrantless body search of a defendant if his actions are "reasonable”. Significantly, even the People do not urge us to accept such a broad rule. The District Attorney contends that this search is valid as a search incident to the arrest of defendant (see Agnello v United States, 269 US 20; Carroll v United States, 267 US 132; People v Chiagles, 237 NY 193). If that is so, the October search must be justified by the arrest of defendant in November.1

The general rule is that all warrantless searches are unreasonable unless they are justified under one of the recognized exceptions to the constitutional requirements of the Fourth Amendment (Katz v United States, 389 US 347, 357; People v *39Perel, 34 NY2d 462, 466; People v Loria, 10 NY2d 368). In some limited instances involving exigent circumstances (and none is claimed in this case), probable cause has been held sufficient to justify a warrantless search (see, e.g., Chambers v Maroney, 399 US 42; Warden v Hayden, 387 US 294, 298-299; People v Lewis, 26 NY2d 547) but absent exigent circumstances or a recognized exception to the general rule, probable cause must be determined by a detached, neutral magistrate, not a police officer on the beat (Terry v Ohio, 392 US 1, 21; Johnson v United States, 333 US 10, 13-14). The question then is whether this search may be justified as one incident to an arrest.

There is respectable authority holding that a search of defendant’s person may be incident to an arrest although the arrest is made after the search, rather than before, if at the time of the search there was probable cause to arrest (United States v Riggs, 474 F2d 699, 704; United States v Brown, 463 F2d 949; United States v Thomas, 432 F2d 120, cert den 400 US 1022; United States v Skinner, 412 F2d 98, 102-103, cert den 396 US 967; Henderson v United States, 405 F2d 874, cert den 395 US 906; and see Cupp v Murphy, 412 US 291; cf. People v Ryan, 14 AD2d 926).2 But a warrantless search which is incidental to an arrest, whether made before or after the arrest, must be contemporaneous with it (Stoner v California, 376 US 483, 486-487). Where, as here, the two are separated by a lapse of more than a month’s time, the search may not be permitted as one incidental to a subsequent arrest.

Incidental searches have been justified in different terms. In Preston v United States (376 US 364, 367), Justice Black explained the exception thus: "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 arrest.” (See, also, United States v Edwards, *40415 US 800, 802-803; Agnello v United States, 269 US 20, supra; Search and Seizure—Validity, Ann 19 ALR3d 727-734.) In People v Perel (34 NY2d 462, 467) Chief Judge Breitel expressed it another way:

"The reason searches of a person and his immediate effects at a place of detention are permissible lies not in the fiction that they are incident to arrest but because of the maximum intrusion already effected by an arrest and detention pending arraignment * * *3

"Given the nature of the gross intrusion by detention of the person it is reasonable to conduct a less intrusive search of his person and the possessions he carried with him.” (Footnote not in original; see, also, People v Troiano, 35 NY2d 476, 478; Coolidge v New Hampshire, 403 US 443, 476-478; United States v Robinson, 414 US 218, 235 [Rehnquist, J.], and 237-238 [concurring opn of Powell, J.].)

Under the rationale of either Preston or Perel, the warrant-less search privilege ceases if the person searched is not arrested, for the reasons justifying the warrantless search are wholly dependent upon the arrest. If there is no valid arrest, there can be no valid search without a warrant (see United States v Robinson, supra, p 235; Gustafson v Florida, 414 US 260, 263-264; Beck v Ohio, 379 US 89; Johnson v United States, 333 US 10, supra). This is so even if the police had probable cause to make the arrest and no matter how "reasonable” their reasons for not doing so may have been, for warrantless searches are per se unreasonable, the good faith of the police notwithstanding (Beck v Ohio, supra, pp 96-97; Johnson v United States, supra, pp 13-14). Since there was no contemporaneous arrest of the defendant in this case the evidence discovered as a result of Sergeant Guadagno’s warrantless search on the evening of October 4 was not admissible at trial.

Notwithstanding these rules, the majority hold the search was proper because Sergeant Guadagno’s actions were reasonable. Certainly his actions were not reasonable within the framework of the "stop and frisk” principle of Terry v Ohio *41(392 US 1, supra) cited in the majority opinion. A stop and frisk may be a reasonable intrusion on a citizen’s personal privacy because it combines the minimum intrusion of a pat down with the maximum justification for the intrusion, i.e., the safety of the police officer because of his reasonable apprehension of danger (see People v Moore, 32 NY2d 67; and see People v Taggart, 20 NY2d 335). Quite the opposite circumstances existed here. There was the maximum intrusion of a body search without any reasonable belief of harm to the police officer because this defendant was suspected only of possessing dangerous drugs, a nonviolent crime, and because Sergeant Guadagno had already completed a "quick frisk” without discovering weapons.

Nor does the necessity to protect Scirri’s identity justify Guadagno’s actions. The only governmental interest to be protected in this case was the continuing general responsibility of the police to prevent crime and to conceal the identity of an undercover agent involved in that job. That interest was fully protected without the warrantless search.

Of course some may easily accept the decision here, comfortable in the knowledge that the sergeant had good reason to believe defendant had committed a crime and recognizing the obvious desirability of protecting the identity of an undercover agent. But those circumstances should not obscure the result. Manifestly this search was exploratory in nature and unredeemed by any exception to the requirements of the Fourth Amendment. This ruling says that a police officer in the field may determine what does and what does not constitute probable cause and not only may he make this determination once, but presumably several times, for the converse of the majority’s statement on serial searches would be that "repeated intrusions, absent arrest” would be permissible if the police officer determined on each occasion that he possessed "essential antecedent probable cause”. This flies in the face of the firmly established rule that except in limited cases a neutral Magistrate, not a police officer, must determine probable cause (Coolidge v New Hampshire, 403 US 443, .449, supra; Katz v United States, 389 US 347, 356-357, supra; Johnson v United States, 333 US 10, 13-14, supra). Even the circumstances that Sergeant Guadagno had knowledge of facts which were sufficient to obtain a search warrant would not justify his warrantless search (Johnson v. United States, supra, pp 13-14).

The only purpose of Guadagno’s action was general investí*42gation. The sergeant was looking for evidence, not evidence to prove the sale to Scirri, a crime for which he already had probable cause to arrest defendant, but evidence separate and apart from that sale which might justify defendant’s arrest without implicating Scirri. If he had found the additional evidence on the night of October 4, undoubtedly he would have arrested defendant. Not finding it, he let him go. If these circumstances justified the body search of defendant’s person, then no constitutional reason appears why they would not serve a similar purpose for repeated warrantless searches, if the police so choose, until incriminating evidence of a separate crime was finally discovered.

The authority of the police to make personal searches incident to an arrest has recently been considered by the courts in connection with traffic arrests (see United States v Robinson, 414 US 218, supra; Gustafson v Florida, 414 US 260, supra; and see People v Adams, 32 NY2d 451; People v Marsh, 20 NY2d 98). In Robinson and Gustafson the Supreme Court held that such searches incidental to custodial traffic arrests are per se reasonable although the nature of the offenses does not suggest imminent danger to the arresting officer or the presence of evidence subject to destruction.

It is worth noting by way of analogy, that for many traffic offenses police officers are authorized to arrest or, alternatively, to issue a summons to appear. The violation may be handled either way, in the arresting officer’s discretion. If the exercise of that discretion results in the issuance of a summons, I take it no one would argue that the officer nevertheless was entitled to make a full body search merely because he had the power to arrest which he declined to exercise. Similarly in this case while Sergeant Guadagno may have had the authority to arrest defendant, in which case his search would have been permissible, having chosen not to do so, for whatever reason, he could not then proceed to make a warrantless search.

A few observations are in order with respect to other contentions raised by the majority opinion. I do not read Justice Harlan’s concurring statement in Peters v New York (392 US 40) as approving a search under the circumstances of this case. If it did, it was dicta for the search in Peters was contemporaneous with the arrest of defendant and was limited in scope (p 77). The Justice’s statement referred only to the fact that there was some confusion as to whether probable cause existed before Peters’ arrest and independent of the *43search of his clothes (see Johnson v United States, 333 US 10, supra). Neither does Cupp v Murphy (412 US 291) support the majority decision for in that case the Supreme Court expressly stated that a full search of the defendant, such as exists here, was impermissible without a formal arrest (p 296). The court’s decision approving the search in Cupp was predicated upon “the very limited search” undertaken incident to a station house detention to preserve this "highly evanescent” evidence (p 296). It was the “extremely narrow scope” and the reasonable necessity for the search that justified the police in proceeding without a warrant (p 299 [concurring opn. of Marshall, J.]).

The three $10 bills observed by Sergeant Guadagno could not have been received in evidence because they were discovered as the result of an unreasonable search. Since the bills themselves were inadmissible, the oral testimony of their discovery is similarly barred and defendant’s objection to the testimony should have been sustained (People v O’Neill, 11 NY2d 148, 154; Williams v United States, 263 F2d 487, 489; and see People v. Laverne, 14 NY2d 304, 310).

Constitutional considerations aside, one might doubt the probative value of Sergeant Guadagno’s testimony relating to the money,4 but in view of the fact that it corroborated the testimony of the People’s only witness to the criminal transaction, we cannot say it was harmless beyond a reasonable doubt (Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230).

The judgment should be reversed and a new trial granted.

Marsh, P. J., and Wither, J., concur with Dillon, J.; Simons and Goldman, JJ., dissent and vote to reverse judgment and grant a new trial, in an opinion by Simons, J.

Judgment affirmed.

. None of the members of the court accept the People’s contention that the momentary detention on the night of October 4 may be considered an arrest which legitimized the search, followed shortly thereafter by defendant’s release. Although Sergeant Guadagno had probable cause to make a warrantless arrest at the time (see Adams v Williams, 407 US 143, 148-149), he did not claim that he had arrested defendant, and upon the evidence he clearly did not (see CPL 140.15).

. For cases involving warrantless searches of property before arrest see People v Brosnan (32 NY2d 254) in which evidence discovered by the prior search was admitted and People v Vitagliano (21 AD2d 677, revd on other grounds 15 NY2d 360 [a search 47 days before the arrest]) in which the search was held unreasonable and the evidence suppressed.

. For similar language see People v Chiagles (237 NY 193, 197 [Cardozo, J.]). "The basic principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation [citations omitted]. Search of the person becomes lawful when grounds for the arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion. "(Emphasis added.)

. Sergeant Guadagno stated that he did not seize the three $10 bills because he had no way of connecting them to the sale.