122 F. Supp. 3d 165
S.D.N.Y.2015Background
- Defendant Jose Diaz was observed on a stairwell landing in an apartment building holding a red plastic cup and near an open vodka bottle during an NYPD vertical "Clean Halls" patrol.
- Officer Aybar smelled alcohol, saw liquid in Diaz’s cup, and intended to issue a summons for violating NYC’s open-container law; she testified she did not intend to arrest when she approached.
- When asked for ID, Diaz fumbled in his jacket and touched his waistband; Officer Aybar frisked him and found a loaded .380 handgun in his jacket pocket, after which she arrested him.
- Diaz moved to suppress the gun as the fruit of an unlawful Fourth Amendment search; the district court held an evidentiary hearing and credited the officers’ testimony on key points.
- The court found probable cause to arrest for an open-container violation (or at least an objectively reasonable belief that the stairwell was a “public place”) under Heien and concluded the search was lawful under Second Circuit precedent allowing searches incident to arrests where probable cause existed before the search.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stairwell is a “public place” under NYC open-container law | Diaz: common areas of small residential buildings are not public places | Gov’t: statute’s broad definition and precedent treat common areas as public places | Court assumed arguendo it could be non-public but held officer’s contrary belief was objectively reasonable under Heien, so probable cause existed |
| Whether officer had probable cause to arrest at time of search | Diaz: no probable cause because facts didn’t show drinking in a public place | Gov’t: officer smelled alcohol, saw cup with liquid and an open bottle nearby—sufficient for probable cause | Court: probable cause existed (or at least an objectively reasonable mistake of law), so arrest would have been justified |
| Whether a search is lawful incident to arrest when officer intended only to issue a summons (Knowles tension) | Diaz: search invalid because officer intended to issue a summons and only arrested after finding the gun (search caused arrest) | Gov’t: Ricard and Second Circuit precedent permit a search if probable cause to arrest existed at time of search, regardless of subjective intent | Court: bound by Ricard and related Second Circuit precedent; Knowles and state-court Reid dissent create tension but do not compel departure—search upheld as incident to arrest |
| Whether reasonable-suspicion frisk for officer safety justified the search | Diaz: fidgeting alone insufficient for frisk/safety search | Gov’t: furtive movements justified frisk | Court: frisk not justified by reasonable suspicion; validity rests on search-incident-to-arrest analysis instead |
Key Cases Cited
- Heien v. North Carolina, 574 U.S. 54 (2014) (Fourth Amendment allows objectively reasonable mistakes of law to support stops/searches)
- Knowles v. Iowa, 525 U.S. 113 (1998) (search-incident-to-arrest does not authorize a search after issuing a citation instead of arrest)
- United States v. Ricard, 563 F.2d 45 (2d Cir. 1977) (search before arrest lawful if probable cause to arrest existed at time of search)
- United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) (search may precede arrest if probable cause existed and events are substantially contemporaneous)
- Devenpeck v. Alford, 543 U.S. 146 (2004) (probable cause assessed objectively; officer’s subjective intent irrelevant)
- People v. Reid, 24 N.Y.3d 615 (2014) (N.Y. Court of Appeals: Knowles controls; search invalid where search caused the arrest and officer did not intend to arrest at time of search)