When Police Conduct a Post Arrest Search Without an Arrest: Challenging Illegal Searches in New York

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

In trying to convince the court to permit the evidence against the defendant, prosecutors correctly asserted that warrantless searches are permissible in circumstance such as these because the police may lawfully arrest a person for violating an ordinance. In other words, if the police see you drinking an open container of beer and a law says you are not permitted to do so, then they can arrest you. Because the defendant’s actions were “arrestable,” prosecutors claimed that the police could then conduct a search incident to that arrest. While technically correct, the Court noted that the record from the lower court (the trial court as opposed to the appellate court), made it clear that the defendant was not arrested, but instead issued a summons (called an appearance ticket, but it appears as if this was more akin to a summons as opposed to a Desk Appearance Ticket in New York City). Further, the Court recognized the police had no intention of arresting the defendant but searched him anyway. In the words of the Court, “[i]f there is no arrest, however, there can be no search incident thereto.”

Kalikow should make one thing clear. Merely because a defendant can be arrested, but is in fact not, does not give the police the authority to conduct a post arrest search. Despite the clear ruling from the Court, Kalikow is clearly fact specific, meaning, it is only applicable to limited cases. If, for example, you are issued a summons and the police notice a big bulge in your waist area that they can articulate appears to be a firearm, then the police can investigate further irrespective of that summons. Maybe they pat you down or maybe they make some inquires. Ultimately, if you are searched in a legal manner or during their investigation you state that you have a gun, the case addressed here may not help your cause, but your attorney should still seek to challenge the police and preserve your rights through a Huntley or Mapp Hearing.

To educate yourself further about criminal statutes found in the New York Penal Law, Desk Appearance Tickets, and the crimes of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of a Weapon in the Fourth Degree (as well as many others), please review the content found through the links above and below.

Established in 2008 by two former Manhattan prosecutors, the founding New York criminal lawyers at Crotty Saland PC utilize the wealth of knowledge and experience they have gained in their collective 24 years of criminal practice to represent clients throughout the New York City region.

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