—Order, Supreme Court, New York County (Ira Beal, J.), entered June 19, 1996, which, to the extent appealed from, granted defendant’s motion to suppress physical evidence recovered from him at the time of his arrest, unanimously reversed, on the law, the motion denied and the matter remanded for further proceedings.
On February 20, 1996, Detective John Guariglia was assigned to investigate a robbery complaint filed by Christopher Bonnemere, an employee of a Love Store located at 85th Street and Third Avenue in Manhattan. Bonnemere told the police that on February 19th, he was bringing a bag containing $7,000 of the store proceeds to the Republic National Bank when a man attacked him in the bank lobby and stole the bag of money. Bonnemere described the thief as a six-foot tall black man with a goatee, weighing between 230 and 250 pounds, and wearing a black or tan jacket. Bonnemere also told Guariglia that the money was packaged in a brown bag, which was placed in a plastic bag with a Love Store logo, which in turn was
Upon further questioning of Bonnemere, Guariglia began to doubt that a robbery had occurred. Bonnemere exhibited no injuries despite his claim he was punched in the face, and Guariglia discovered he had given varying descriptions of the alleged perpetrator to other police officers. Eventually, Bonnemere admitted that it was a “phony robbery,” which he had set up with a guy named “Paul” who worked at a nearby jewelry store on 86th Street. Bonnemere described Paul to Guariglia as six feet, three inches, with a goatee and gold tooth, weighing between 230 and 250 pounds, and wearing a tan overcoat or jacket. The police went to the jewelry store, where they learned that a man fitting that description was employed there named “Paul Wylie.” The police obtained defendant’s home address in upper Manhattan, and further learned that defendant had borrowed a co-employee’s 1970’s Cadillac Seville earlier that day.
At 6:00 p.m. on February 20th, Guariglia and Detective Schmittgal drove to defendant’s home and parked 50 to 100 feet from the entrance. After noticing a 1970’s Cadillac Seville parked near the building, they observed a man meeting defendant’s description come out of the building and walk toward them. Guariglia got out of his car with his gun bolstered, approached defendant and asked him if he was “Paul Wylie.” When the man responded that he was, Guariglia told him to put his hands behind his back and placed him under arrest. Wylie was handcuffed and a search of his right coat jacket revealed a plastic bag with the Love Store logo. Inside, Guariglia found a brown paper bag containing two bundles of money totalling $3,000.
After a hearing on the motion to suppress, the IAS Court granted suppression of the money. Although the court determined that defendant’s arrest was supported by probable cause, it held that “once the defendant was placed in handcuffs, the police had a duty to secure a search warrant in order to search the bag, which was a closed container for Fourth Amendment purposes.” The court, citing People v Gokey (
“Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” (People v Gokey, supra,
The People argue on appeal that the holdings in People v Smith (supra) and People v Gokey (supra) are inapplicable because there was no evidence at the suppression hearing that the bags were “in any way closed or otherwise sealed to indicate some privacy interest on the part of the defendant.” The People’s reading of the record is correct, as the only witness at the hearing, Guariglia, was never asked about the condition of the bag. However, the suppression court made the finding that the bag was a closed container, and the People never moved to reopen the hearing to establish otherwise. It is the People’s burden in the first instance to establish justification for a warrantless search, which is presumptively unreasonable. Thus, the People cannot now argue that the evidence failed to establish that this was a closed container (see, People v Pettinato,
Nonetheless, we believe that suppression is unwarranted. A recognized exception to the Fourth Amendment’s warrant requirement is a search incident to a lawful arrest (People v Belton, 55 NY2d 49, 52, supra; United States v Chadwick,
The search in this case is materially indistinguishable from that approved by the Court of Appeals in People v De Santis (supra). In De Santis, Federal drug enforcement agents in Buf
The Court of Appeals upheld the actions of the agents as a search incident to a lawful arrest. While recognizing that warrantless searches are “a strictly circumscribed right,” and that defendant did retain a privacy interest in the contents of the suitcase, the Court held those privacy rights must, for a limited time, give way to “the legitimate governmental interest in discovering weapons, thwarting access to means of escape and preventing the destruction or secretion of evidence” (supra, at 88-89). The Court distinguished the Supreme Court’s holding in United States v Chadwick (supra), where the search involved a bulky double-locked footlocker that could not be easily opened, the search took place an hour and a half after the arrest at police headquarters some distance away and the defendants had been securely confined and were not present during the search. In contrast, the search in De Santis was accomplished in close proximity to the time and place of the arrest, and in the presence of the defendant. In the present case, it is undeniable that the search of bags occurred immediately upon, and at the same location as, the arrest.
Relying on People v Gokey (supra), defendant argues, and the suppression court agreed, that no exigency existed to justify the search because defendant was handcuffed prior to the time the search was conducted. It is true that once the police obtain “exclusive control” over an arrestee’s property, and there is no longer the possibility of gaining access to the property to seize a weapon or destroy evidence, the search is no longer incident to the arrest (People v De Santis, supra, at 89; United States v Chadwick, supra, at 15). While some of our own decisions have suggested that handcuffing, by itself, will negate any claim of exigent circumstances (compare, People v Rosado,
The evidence at the suppression hearing did not meet the test for exclusive control, as defined by both the Supreme Court
Conversely, in People v Smith (
Like Smith, the search in the present case occurred immediately after the defendant was arrested and handcuffed. Indeed, the search was conducted right there on the street, a short distance from the defendant. Defendant easily could have reached for a weapon or attempted to rid himself of the money during the arrest itself, and the momentary delay in actually handcuffing defendant does not alter this result (People v Smith, supra). Moreover, a determined arrestee may use means other than his hands—such as kicking or shoving the arresting officer—to disrupt the arrest process in order to gain a weapon or destroy evidence. Such actions are a realistic possibility when the search occurs within close proximity to the arrest, as was the case here. In any event, the factual scenario in this case is a far cry from the police-controlled arrest scenes in Chadwick and Gokey, where no interpretation of the evidence would permit a finding of exigent circumstances.
The reasonableness of this search is enhanced by the facts that the Love Store bag was itself evidence of the crime for which defendant was arrested, and that the police had probable cause to believe that the bag contained further evidence of the crime, to wit, the proceeds of the theft. Bonnemere had told the police that the stolen money was packaged in three bags, one of which was a Love Store bag, and was in defendant’s possession. Not coincidentally, when the police arrested defendant
Notes
The prosecution also conceded in Gokey that the searching officers had no fear that the defendant was armed at the time of the search. No such concession was made here by Guariglia at the hearing, or by the prosecutor.