Lead Opinion
OPINION OF THE COURT
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.
On April 9, 1978, defendant and three companions were traveling on the New York State Thruway in Ontario County when their car was stopped by a State trooper for speeding. Upon approaching the vehicle, the officer smelled the distinct odor of marihuana emanating from within and observed on the floor an envelope which he recognized as a type that is commonly used to sell the substance. At that point the officer ordered the occupants out of the vehicle, patted each down, removed the envelope from the floor and ascertained that it contained a small amount of marihuana.
After the marihuana was found, the individuals, still standing outside the car, were placed under arrest. The officer then re-entered the vehicle, searched the passenger compartment and seized the marihuana cigarette butts lying in the ashtrays. He also rifled through the pockets of five jackets on the back seat. Upon opening the zippered pocket of one of them, he discovered a small amount of cocaine and defendant’s identification.
Following denial of his motion to suppress the cocaine, defendant pleaded guilty to attempted possession of a criminal
Analysis begins with the general proposition that, except in a few narrowly circumscribed instances, the Fourth Amendment condemns warrantless searches and seizures as unreasonable (Coolidge v New Hampshire,
The People maintain that the warrantless search of defendant’s jacket was reasonable on the ground that it was incident to his lawful arrest. A custodial arrest of a suspect based upon probable cause without a warrant in a public place constitutes a reasonable intrusion under the Fourth Amendment (United States v Watson,
When a suspect is placed under custodial arrest, there is always present the danger that he may seek to use a weapon to effect an escape or destroy or conceal evidence of a crime. Thus, to safeguard himself and others, and to prevent the loss of critical evidence, it is reasonable from a Fourth Amendment perspective for the arresting officer to conduct a prompt, warrantless "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” (Chimel v California,
The privacy interest of the arrestee in an object remains intact once he is effectively neutralized or the object is within the exclusive control of the police (see Arkansas v Sanders,
In this regard, United States v Chadwick (
That defendant retained an expectation of privacy in the contents of his jacket pockets notwithstanding the fact of his arrest is beyond dispute. Indeed, it is difficult to imagine a more private receptacle where one might place one’s most personal items than the zippered recesses of a jacket. Defendant’s arrest, standing alone, did not vitiate that privacy interest by being converted into a license for law enforcement authorities to engage in a warrantless search of unlimited temporal and geographic scope. Once defendant had been removed from the automobile and placed under arrest, a search of the interiors of a private receptacle safely within the exclusive custody and control of the police may not be upheld as incident to his arrest (United States v Chadwick,
Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.
Notes
. To the extent that these cases may be read to suggest otherwise, they are disapproved.
. One searches the record in vain.for support of the dissenter’s claim that at the time of arrest — the point from which the predicate for the warrantless search is measured — "the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer” (dissenting opn, p 454). Indeed, the facts, as found at the suppression hearing and affirmed by the Appellate Division, were to the effect that the jacket was searched after the defendant was removed from the vehicle and then placed under arrest.
Dissenting Opinion
(dissenting). I respectfully dissent. Although I am in agreement with the standard legal principles enunciated by the majority, I cannot concur in what appears to be an obvious misapplication of those principles to the facts of this case.
A warrantless search based on probable cause is permissible if the facts underlying the search bring it within any of several narrow exceptions to the warrant requirement with which this court is fully familiar. One such exception to the warrant requirement is a search incident to a lawful arrest. Although this particular exception has had a somewhat uncertain history (compare Trupiano v United States,
To be sure, such a search is subject, as it should be, to careful judicial scrutiny before its fruits may be admitted into evidence. As the Supreme Court has recently stated, "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest’ * * * or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest” (United States v Chadwick, supra, at p 15). While these principles are readily articulated, their application to individual cases may seem, at first blush, to be a task of some complexity. This is so in large part because each case must turn upon its peculiar facts and "an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights” (Arkansas v Sanders,
Certainly there exists sufficient evidence in the record before us to support the factual findings made by the courts below. Indeed, this case is illustrative of the type of situation in which a warrantless search is most appropriate. We are not here faced with an extended search of a defendant’s property after the defendant has been completely subdued and all actual danger has passed. Rather, this search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters or radioing for assistance. The situation was still fluid, and neither the suspects themselves nor their property had as yet been reduced to the exclusive and certain control of the police. I cannot agree that under these circumstances the officer acted improperly in searching the jackets found on the back seat of the automobile. The potential for danger to the officer or for the destruction of evidence is patent, and thus the search must be deemed incidental to the arrest.
I must confess that I am somewhat puzzled by the rationale adopted by the majority of this court today, for it appears rather ingenuous. Instead of undertaking that careful factual analysis of the realities underlying the continuing encounter between the lone officer and the four suspects which is so necessary to fairly judge the reasonableness of the officer’s actions, the court premises its decision completely upon an uncertain assumption drawn from two isolated facts. Appar
Accordingly, I vote to affirm the order appealed from.
Judges Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.
Order reversed, etc.