26 N.Y.2d 547 | NY | 1970
Defendant was convicted of possession of a dangerous weapon as a felony after a motion to suppress was denied prior to trial.
The pertinent facts establish that on December 5, 1967, at approximately 2:45 p.m., Patrolman Beedenbender was directing traffic at a school crossing in Manhattan when he observed three men, the defendant and two others, riding in an automobile bearing Virginia license plates. The officer recognized the defendant, the driver, since he had previously arrested the defendant for a narcotics offense. Although that charge was later dismissed, the officer became acquainted with the defendant’s prior criminal record and knew “ there was a warrant [dated Feb. 1,19651 — a hold on him from the 28th police squad, New York City * * * the hold was for 1308 of the Penal Law ”, With this knowledge, the officer followed the defendant in the patrol car and, at a stop light, emerged from his car, approached the vehicle and asked the defendant to pull around the corner and park in front of the 30th precinct station house. The defendant complied and after arriving at the station house,
The officer testified that the reason for making the search of the vehicle without either an arrest or search warrant 10 minutes after the defendant had been taken into custody was the recognized police practice “to search both the defendant and any vehicle that he may occupy ” after he is placed under arrest.
The defendant offered no evidence and the motion to suppress was denied.
On appeal, notwithstanding the District Attorney’s concession of error, the Appellate Division affirmed, one Justice dissenting. In answer to the argument that the search could not be sustained as an incident to the arrest because of the lack of contemporaneousness, the court stated (33 A D 2d 195): “We conclude that on the record before us, there is revealed a sufficient unity of time and pláce, attendant upon the defendant’s arrest to justify the search ”. The District Attorney has again conceded error in our court, however, this alone does not mandate a reversal. As was stated in Sibron v. New York (392 U. S. 40, 58): “ Confessions of error are, of course, entitled to and given great weight, but they do not ‘ relieve this Court of the performance of the judicial function. ’ Young v. United States, 315 U. S. 257, 258 (1942).”
Any discussion of the problem of the search of the vehicle without a warrant sometime after a defendant has been placed under arrest must necessarily commence, with Preston v. United States (376 U. S. 364). In Preston three men who had been
Likewise in the instant case, at the time of the defendant’s
Of course, the justification for searches incident to a valid arrest are not only borne out of protection for police officers, but are also conducted for the purposes of discovering (1) the fruits of the crime; (2) instrumentalities used to commit the crime; (3) contraband, the possession of which constitutes a crime; or (4) material which constitutes evidence of the crime or evidence that the person arrested has committed it (Amador-Gonzalez v. United States, 391 F. 2d 308); and this is especially true when involved with warrantless searches of automobiles “ where it is not practicable to secure a warrant because the vehicle can bé quickly moved out of the locality or jurisdiction in which the warrant must be sought ” (Carroll v. United States, 267 U. S. 132, 153). This is not to say, however, that incidental searches can be made to further the four purposes set forth above without foundation. There must exist a reasonable belief that the search will produce the fruits, instrumentalities, contraband or evidence (Carroll v. United States, supra, at p. 154). Here, the only basis for the arrest was an outstanding warrant dated almost three years before the arrest. All the arresting officer knew was that the defendant was still wanted in connection with a charge of criminally receiving stolen property prior to February 1,1965. Without more, the search cannot be sustained as an incident to the arrest, since the officer could not formulate the requisite reasonable belief that the search would be productive.
It must be emphasized, however, that it is not the mere 10-minute lapse of time between the arrest and search which gives rise to our disposition, for we have on several occasions sustained searches of automobiles sometime after the arrest (e.g., People v. Cassone, 14 N Y 2d 798 and People v. Montgomery, 15 N Y 2d 732, where the car itself was seized as an
Accordingly, the judgment of conviction should be reversed and the indictment dismissed. •
Chief Judge Fuld and Judges Bergan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.
Judgment reversed and indictment dismissed.
Of course, the question of whether the officer had probable cause to arrest the defendant and make an incidental search when he first confronted him (without the knowledge of the continued viability of the 1965 warrant) is academic since no search was made at that time.