Reversing the Appellate Division, First Department, the New York Court of Appeals held in People v. Graham Reid that a search incident to arrest can’t be based on the very evidence found during the search.  Kinda seems obvious, notwithstanding the fact that the defendant lost before the trial court and the intermediate appellate court, which affirmed his conviction for which he’s serving an indeterminate sentence of two to four years for possession of a switchblade.

The defendant was stopped for drunk driving:

[P.O. Jacob] Merino stopped the car and approached it. He saw that defendant’s eyes were “very watery” and his clothing was disheveled. There were plastic cups in the car’s center console, and the officer detected an odor of alcohol.

No big deal, even though, as it later turned out, the defendant’s blood alcohol content was zero.  As in not drunk in the slightest. But, there is always that smell, which unfortunately can’t be captured as evidence, and so we must rely on the officer’s senses and honesty.

But during the suppression hearing. Merino’s testimony wasn’t quite what one might expect:

In response to questions by the court, Merino gave the following testimony, referring to the moment when he asked defendant to get out of the car:

“THE COURT: At that point, were you going to arrest him?

“THE WITNESS: No.

“THE COURT: You weren’t?

“THE WITNESS: No.”

***

“THE COURT: So it’s only because you ultimately found the switchblade that you arrested him?

“THE WITNESS: Yes, ma’am.”

This is what we refer to, in highly technical legal jargon, as that “oh shit” moment.  “Did he just say that? Oh shit.”  Had Merino stated that he was in the process of arresting Reid for drunk driving, the case is a slam dunk, no issue. It doesn’t matter that the evidence of drunk driving was ridiculously circumstantial (disheveled clothing?), as courts love smells, and anything that smells gets a pass.

But Merino said the unthinkable. He wasn’t going to arrest Reid. Then he searched him anyway.  Because he’s a cop, protecting and serving, knowing the law, authorized to do whatever he decides to do, and, well, just obey, dammit.  And so the switchblade (which we are constrained to assume was a switchblade, as opposed to an ordinary pocket knife that can be flicked open if tried a few dozen times with great force) was found.

The court below affirmed the denial of suppression:

Defendant’s motion to suppress the knife was denied on the ground that the pat-down was “justified as a search incident to arrest,” and defendant pleaded guilty to criminal possession of a weapon. The Appellate Division affirmed, holding that so long as probable cause to arrest defendant for driving while intoxicated existed, it was irrelevant whether Merino subjectively intended to make such an arrest.

This is where the analysis gets curious, as per the travesty of Whren, the officer’s subjective intent means nothing if there was an objectively reasonable basis to act.  In other words, if Merino had the authority to arrest, then it was just as good as if he intended to arrest, regardless of what he intended to do.  Got cause?

Except the Court of Appeals rejected this view because it made no sense whatsoever.

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous . . . The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not.

This is quite a remarkable ruling, as it rejects the circular reasoning that arises from blind invocation of doctrine, that a search incident to arrest can be based on the evidence found during the search itself.  Rather than close their eyes tightly and adhere to caselaw which, in light of Merino’s testimony, would produce a ridiculously irrational result, the Court did something courts so rarely do: they used logic.

As Judge Susan Read notes in dissent, precedent would require that the proper outcome would be the absurd one:

The majority principally grounds its decision to reverse on the police officer’s subjective intent — i.e., the police officer testified at the suppression hearing that he did not intend to arrest defendant until he discovered the switchblade in defendant’s pocket. But as the Appellate Division recognized, the United States Supreme Court has consistently held that an arresting officer’s subjective intent, however determined, offers no basis for negating an objectively valid arrest.

And indeed, there is much to support her reading of precedent.  The only problem is that it’s totally irrational to approve of a search incident to an arrest based on the outcome of the search.  It is, however, consistent with and supported by precedent.  The lesson being, of course, that the Supreme Court’s precedent, skewed to assure that no search gets suppressed, makes no sense.

Fortunately, the New York Court of Appeals refused to embrace a blind application of precedent that produced a facially irrational exception to the authority to search and seize.  Even though there may be little hope left in federal courts for a 4th Amendment violation, there is still some life left in the law in New York. Oh shit, indeed.

H/T Jill McMahon