Touro Law Review

Volume 34 Article 18
Number 4 Dedicated to Professor Ilene Barshay

2018

Exigent Circumstances and Searches Incident to Arrest in New

York: The Difficulties and Distinctions
Kyle Knox

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Recommended Citation
Knox, Kyle (2018) "Exigent Circumstances and Searches Incident to Arrest in New York: The Difficulties
and Distinctions," Touro Law Review: Vol. 34: No. 4, Article 18.
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 Knox: N.Y. Exigent Circumstances and Sila

EXIGENT CIRCUMSTANCES AND SEARCHES INCIDENT TO

ARREST IN NEW YORK:
THE DIFFICULTIES AND DISTINCTIONS

Kyle Knox*

I. INTRODUCTION

The Fourth Amendment to the United States Constitution

states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.1
The right to be free in one’s person, home and belongings from
unwarranted governmental intrusions has been a tradition in our nation
since its inception and finds its roots in the English common law.2
Moreover, most states have similar provisions in their state
constitutions to ensure the security of their citizenry with near identical
language to the Fourth Amendment.3

* Touro College Jacob D. Fuchsberg Law Center, J.D. Candidate 2018; State University of
New York at Plattsburgh, M.S.T., in Adolescence Education, B.A., in History, 2015. I would
like to thank my parents for their constant support and love throughout my life, especially
during law school. Additionally, I would like to thank my girlfriend for motivating and
encouraging me to become the best lawyer I can be. Finally, I would like to thank the
Honorable Mark Cohen for introducing me to the vast realm of criminal procedure, and
Professor Gary Shaw for providing his valuable insight as a writer and a constitutional law
scholar to me, and constantly challenging me as I wrote this article along the way.
1 U.S. CONST. amend. IV.
2 See Semayne’s Case (1604), 77 Eng. Rep. 194; 5 Coke Rep. 91; Entick v. Carrington

(1765), 95 Eng. Rep. 807; 19 Howell’s State Trials 1029.

3 See PA. CONST. art. I, § 8 (“The people shall be secure in their persons, houses, papers and

possessions from unreasonable searches and seizures . . . .”); TEX. CONST. art. I, § 9 (“The

1271

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The New York Constitution has followed the language

provided by the Fourth Amendment to the very last word.4 The Fourth
Amendment and New York Constitution article I, section 12, both
provide that, ordinarily, for a search to be considered reasonable, there
must be a warrant, signed by a neutral and detached magistrate, in the
possession of the police at the time they conduct the search.5 The
warrant must establish probable cause to conduct the search or seizure.6
Should the police not have a warrant in their possession at the time of
the search or seizure, there is a possibility that the search will be
considered unreasonable and trigger the Exclusionary Rule.7 The
Exclusionary Rule provides that if police seize evidence in violation of
the Fourth Amendment, a court will exclude that evidence from being
introduced in a criminal trial against the person whose Fourth
Amendment rights were violated.8
While warrants are generally required for a police officer to
search a person or thing for evidence and even further to seize such
evidence, there are circumstances in which a police officer is not
required to provide a warrant before making such search or seizure.9
In other words, the lack of a warrant at the time of the search or seizure
is excused. Several exceptions to the warrant requirement have been
upheld in both federal courts and New York State courts.10 Two of

people shall be secure in their persons, houses, papers and possessions, from all unreasonable
seizures or searches . . . .”).
4 N.Y. CONST. art. I, § 12 (“The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”).
5 See U.S. CONST. amend. IV; N.Y. CONST. art. I, § 12.
6 U.S. CONST. amend. IV; N.Y. CONST. art. I, § 12.
7 JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE 185

(6th ed. 2013).

8 Compare Weeks v. United States, 232 U.S. 383 (1914) (holding that such evidence cannot

be introduced in federal prosecutions against a criminal defendant); Mapp v. Ohio, 367 U.S.
643 (1961) (holding that such evidence cannot be introduced in state prosecutions), with
Walder v. United States, 347 U.S. 62 (1954) (holding that illegally seized evidence may be
introduced to impeach the criminal defendant’s credibility for trustworthiness).
9 See Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the

judicial process, without prior approval by a judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.” (footnotes omitted)).
10 See, e.g., Carroll v. United States, 267 U.S. 132 (1925) (recognizing that there is an

“automobile exception” to the warrant requirement where a police officer possesses probable
cause to believe that the driver of such vehicle is transporting illegal substances); People v.
Langen, 456 N.E.2d 1167 (N.Y. 1983) (same); Schneckloth v. Bustamonte, 412 U.S. 218

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these exceptions, in particular, are searches incident to lawful arrest11

(SILA) and exigent circumstances.12
Before going any further, there must be an explanation as to the
warrantless exceptions that are to be the main foci of this Note, those
being searches incident to lawful arrest and exigent circumstances.
First, a search incident to lawful arrest occurs when “[a] police officer
who makes a lawful custodial arrest . . . conduct[s] a contemporaneous
warrantless search of: (1) the arrestee’s person; and (2) the area within
the arrestee’s immediate control.”13 The Supreme Court justified the
search incident to arrest exception in Chimel v. California14 by
recognizing the risks that an officer confronts when arresting a
suspect.15 Academic writers say that the justification for the search
without a warrant is that “the right of an officer to search the person of
the arrestee and the area within his immediate control for weapons and
evidence . . . flows automatically from the arrest itself.”16 In the course
of the search, after the arrest has been made, the officer may then seize
“any article discovered during a lawful SILA search, even if it relates
to a crime unrelated to the arrest, but only if the officer has probable
cause to believe the object constitutes constitutionally seizeable
evidence . . . .”17 This exception is so widely accepted in federal
jurisprudence that in United States v. Robinson,18 Justice Rehnquist,
writing for the majority, wrote that “in the case of a lawful custodial
arrest a full search of a person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’

(1973) (holding that a search warrant is not required where a person gives the police officer
consent to search); People v. Singleteary, 324 N.E.2d 103 (N.Y. 1974) (same).
11 Weeks, 414 U.S. at 391-92; see People v. Chiagles, 142 N.E. 583 (N.Y. 1923).
12 See Payton v. New York, 445 U.S. 573 (1980); People v. Mitchell, 347 N.E.2d 607 (N.Y.

1976), abrogated on other grounds by Brigham City v. Stuart, 547 U.S. 398 (2006).
13 DRESSLER & MICHAELS, supra note 7, at 185 (footnotes omitted).
14 395 U.S. 752 (1969).
15 Id. at 762-63 (“When an arrest is made, it is reasonable for the arresting officer to search

the person arrested in order to remove any weapons that the latter might seek to use in order
to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered,
and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to
search for and seize any evidence on the arrestee’s person in order to prevent its concealment
or destruction. And the area into which an arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer
in front of one who is arrested can be as dangerous to the arresting officer as one concealed in
the clothing of the person arrested.”).
16 DRESSLER & MICHAELS, supra note 7, at 186 (citation omitted).
17 DRESSLER & MICHAELS, supra note 7, at 187 (citation omitted) (emphasis added).
18 414 U.S. 218 (1973).

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search under that Amendment.”19 The inherent exigencies of the arrest

situation justify the search of the person,20 containers and controllable
area,21 and the vehicle.22
Second, exigent circumstances are situations, more
appropriately termed “emergencies,” in which “time constraints make
it impracticable for the officer to seek a warrant.”23 For an officer to
justify a warrantless search under exigent circumstances, the police
officer must have a reasonable belief that a criminal suspect is going
to escape or that evidence will be lost or destroyed.24 For example, if
a criminal suspect begins to flee from an otherwise lawful police
encounter, the officer is entitled to give chase of the suspect in order
to prevent their escape.25 This is known as “hot pursuit.”26
Additionally, exigency requires a cursory limitation on the scope of the
search.27 For example, in the case of a protective sweep, the cursory
limitation is that the police are entitled to conduct a protective sweep
to discover a person who may pose a danger, but only in areas where
they reasonably believe a person is hiding, or realistically could be
hiding.28 Furthermore, the exigency exception lasts no longer than the
exigency exists.29 For example, if the police possess an arrest warrant
for D, then go to D’s house, find him, and arrest him, they cannot use
exigent circumstances as a justification to search the entire house for
another person, B, as the exigency ended when D was arrested.30
Finally, the exception does not apply if the police “create the exigency
by engaging or threatening to engage in conduct that violates the
Fourth Amendment.”31

19 Id. at 235.
20 Id. at 226, 236.
21 Chimel v. California, 395 U.S. 752, 763, 768 (1969).
22 Arizona v. Gant, 556 U.S. 332, 343 (2009) (“Accordingly, we reject this reading of Belton

and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search.” (emphasis added)).
23 DRESSLER & MICHAELS, supra note 7, at 179.
24 DRESSLER & MICHAELS, supra note 7, at 179.
25 See United States v. Santana, 427 U.S. 38, 42-43 (1976).
26
Id.
27 DRESSLER & MICHAELS, supra note 7, at 179.
28 See, e.g., Maryland v. Buie, 494 U.S. 325 (1990).
29 Id. at 335-36.
30 See id. at 332-33.
31 Kentucky v. King, 563 U.S. 452, 462 (2011).

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So, with that understanding, the Supreme Court has found that
the reason that searches incident to arrest of a person or a container
within the controllable area are valid searches under the Fourth
Amendment is derived from the inherent exigencies that are present at
the time of the arrest. For many years, New York had followed this
basic principle regarding the search of the “person.”32 However, the
landscape of warrantless searches in New York changed drastically in
1983.
In 1983, the Court of Appeals of New York decided the case of
People v. Gokey,33 where the court held that “[u]nder 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.”34 This holding represents a drastic departure from the
Supreme Court’s holding in Robinson such that New York has
essentially rejected the entire reasoning of the Robinson court’s
conclusions of law with regard to searches incident to arrest. This is a
departure because the whole reasoning behind justifying searches
incident to arrest of containers within the immediate control of an
arrestee is predicated on the belief that the arrestee may possess
weapons that might pose a danger to the officer or evidence that might
be lost.35 The added layer of exigency requires that when an officer
has probable cause to arrest someone, they must have a reasonable
belief that the container to be searched possesses a weapon or
destructible evidence. Chimel implies that this notion is to be
assumed.36 In other words, if there are no exigent circumstances, the
police must obtain a search warrant for the container found within the
controllable area of an arrestee.
It only harms society to sustain this rule. The problem is not
that the police are performing a wanton search for objects based on
something less than is required to make an arrest. What is happening
here is that even in the event that the police possess probable cause to
make an arrest, they must possess something more than probable cause
to make the arrest when they search the backpack on that person’s
person during the arrest.

32 People v. Chiagles, 142 N.E. 583, 584 (N.Y. 1923).

33 457 N.E.2d 723 (N.Y. 1983).
34 Id. at 724.
35 See Chimel v. California, 395 U.S. 752, 762-63 (1969).
36 Id.

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In the years after the Gokey decision, it seems that the courts of
New York have engaged in a string of misapplications of the Gokey
rule, leading to inconsistent results that, as a policy consideration, can
only be remedied by an overturning of the Gokey rule or a change to
the New York Criminal Procedure Law through legislation.
This Note’s focus is on exigency and searches incident to arrest
for the following reason: In New York, in order to justify a search
incident to arrest of a suspect’s container within their immediate
control, the search cannot be “divorced in time or place from the
arrest,” and the search must be justified under exigent circumstances.37
In other words, New York requires that a warrant exception must be
evident to justify another warrant exception. While it is true that the
states can provide more liberty guarantees to their citizens than the
federal government, the states must balance the liberty interests of their
citizens against the interests of law enforcement when dealing with
search and seizure issues, particularly the interests of crime prevention
and public safety.
Therefore, this Note will discuss the following: Part II of this
Note will discuss the Supreme Court’s decision in United States v.
Robinson and how the Court came to its conclusion. Part III will
discuss People v. Smith and People v. Gokey, the relationship between
the two cases, and a policy consideration for choosing Smith over
Gokey as New York’s search incident to arrest standard. Part IV will
discuss how courts in New York have been inconsistently applying the
Gokey rationale and coming to differing results. Finally, Part V will
conclude with the remedies that the Court of Appeals or the legislature
should undertake in order to eliminate the inconsistency.

II. UNITED STATES V. ROBINSON

On April 23, 1968, Officer Richard Jenks of the D.C.

Metropolitan Police noticed the defendant driving a vehicle.38 Officer
Jenks knew that, based on a check that he had done four days earlier
of the defendant’s driver’s permit, the defendant was driving with a
revoked permit.39 Officer Jenks signaled for the car to pull over, which
the defendant did, and then the defendant and two other individuals got

37 People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983).

38 United States v. Robinson, 414 U.S. 218, 220 (1972).
39 Id.

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out of the vehicle.40 Jenks informed the defendant that he was under
arrest for “operating after revocation and obtaining a permit by false
pretenses.”41
After conducting a full-custody arrest of the defendant, Jenks
began to search the defendant by patting him down, which Jenks was
required to do by the procedures of his police department.42 The
procedures were in place “[p]rimarily, for [the officer’s] own safety
and, secondly, for the safety of the individual he has placed under
arrest and, thirdly, to search for evidence of the crime.”43 Upon
touching the defendant’s left breast, Jenks felt an object inside of the
chest pocket of the defendant’s jacket.44 He then pulled out the object,
which turned out to be a crumpled-up cigarette box.45 Officer Jenks
testified that “[a]s I felt the package I could feel objects in the package,
but I couldn’t tell what they were . . . I knew they weren’t cigarettes.”46
Jenks opened the cigarette box and found 14 gelatin capsules
containing a white substance, which, after further examination, was
heroin.47
The defendant was convicted in the United States District
Court for the District of Columbia of the possession and facilitation of
concealment of heroin.48 The D.C. Circuit Court of Appeals panel
reversed his conviction on the basis that the search was a protective
frisk, rather than a full search of the person, which meant that the
officer was not entitled to seize the cigarette box and open it without a
warrant because a frisk is used to find weapons that the officer
reasonably believes exist and fears for.49 In this case, the D.C. Circuit
found that the officer would not have been able to find fruits of the
arrest violation on the person of the defendant; thus the officer would
have been allowed to only perform a protective frisk.50

40 Id.
41 Id.
42 Id. at 221-23.
43 Robinson, 414 U.S. at 221 n.2 (alteration in original).
44 Id. at 223.
45
Id.
46 Id. (alteration in original).
47 Id.
48 Robinson, 414 U.S. at 219.
49 See Terry v. Ohio, 392 U.S. 1, 30 (1968).
50 Robinson, 414 U.S. at 233.

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The United States Supreme Court disagreed and reversed the

decision of the D.C. Circuit.51 In short, the Court in Robinson found
that the D.C. Circuit misapplied the stop-and-frisk rule in this case
because Jenk’s search of the defendant was not based on reasonable
suspicion that the defendant might be engaging in crime, but rather the
defendant had in fact engaged in a crime for which the officer had
probable cause to arrest.52 The crux of the case was that the Robinson
Court found that the search incident to arrest of the cigarette pack
found on the defendant’s person was justified as a reasonable search,
entirely separate from the need to have a warrant exception:
The authority to search the person incident to a lawful
custodial arrest, while based upon the need to disarm
and to discover evidence, does not depend on what a
court may later decide was the probability in a
particular arrest situation that weapons or evidence
would in fact be found upon the person of the suspect.
A custodial arrest of a suspect based on probable cause
is a reasonable intrusion under the Fourth Amendment;
that intrusion being lawful, a search incident to the
arrest requires no additional justification. It is the fact
of the lawful arrest which establishes the authority to
search, and we hold that in the case of a lawful custodial
arrest a full search of the person is not only an exception
to the warrant requirement of the Fourth Amendment,
but is also a ‘reasonable’ search under that
Amendment.53
In one sweep, the Supreme Court deemed a search incident to
lawful arrest as not an exception to the warrant requirement but rather
“a reasonable search.”54 However, the Court in Robinson made several
mentions of “the person,” but not “the container,” being the thing that
is searched.55 One may argue then that, because the Supreme Court
does not explicitly mention “the area within the arrestee’s immediate
control,” containers found in such area are not subject to the same rule.

51 Id. at 224.
52 Id. at 227-28.
53 Id. at 235.
54 Id.
55 Robinson, 414 U.S. at 226-28, 235.

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This argument, however, is misplaced because the evidence at

issue in Robinson was found within a cigarette pack on the defendant’s
person. It would be difficult for one to claim that an object found
within a person’s pocket is not “in the area of immediate control.”
Furthermore, a “container” is defined as “[t]hat which contains; a
vessel, receptacle, carton, case, or other containing or enclosing
structure.”56 A cigarette pack found in a person’s pocket at the time of
the arrest clearly meets the definition of a “container.” An “arrest” is
defined as “(1) a seizure or forcible restraint, especially by authority,”
or “(2) the taking or keeping of a person in custody by legal authority,
especially in response to a criminal charge; specifically the
apprehension of someone for the purpose of securing the
administration of the law, especially bringing that person before a
court.”57 Finally, a “seizure,” within the meaning of the Fourth
Amendment, means that a person’s freedom of movement has been
restrained by means of physical force or show of authority (e.g.,
displaying of a gun).58
Therefore, the Robinson holding establishes that where a police
officer seizes a person, and he has probable cause to perform such
seizure, he is entitled to search the person and the person’s belongings
that are in the area of the arrestee’s immediate control, and such search
is reasonable.59
The next question, however, is this: how did the Court
determine that the search incident to arrest of the container is per se
“reasonable”? Under Supreme Court jurisprudence, in order to
determine whether a search is “reasonable,” a court must make a
determination as to whether the suspect possessed a “reasonable
expectation of privacy” in the thing that was the object of the search.60
If such person did possess a “reasonable expectation of privacy” in
such thing, and the police search it without a warrant, then the search
is considered “unreasonable” and will not stand, unless it is justified
by a warrant exception.61

56 Container, THE WEBSTER’S NEW ENCYCLOPEDIC INTERNATIONAL DICTIONARY OF THE

ENGLISH LANGUAGE 219 (1974).

57
Arrest, BLACK’S LAW DICTIONARY (10th ed. 2014).
58 United States v. Mendenhall, 446 U.S. 544, 553 (1980) (plurality opinion).
59 Robinson, 414 U.S. at 235.
60 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Kyllo v. United

States, 533 U.S. 27, 33 (2001).

61 See Katz, 389 U.S. at 361.

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Based on the Katz rationale, the Supreme Court in Robinson

effectively determined that the search of a container found within the
arrestee’s immediate control is a reasonable search because, after the
arrest had been made, the suspect had a reduced expectation of privacy
in his belongings.62 This “reduced expectation” is seemingly based on
the belief that, once the arrest had been made, the search of the person
and any container found within the arrestee’s immediate control is a de
minimis intrusion.63 In other words, because the ultimate seizure, the
arrest, had already been justified based on probable cause, the search
afterwards was trivial or inconsequential.
To this day, Robinson is still the leading authority under federal
law to justify searches incident to arrest, either of the person or a
container. However, New York chose a different route with regard to
searches of containers.

III. ANALYSIS OF PEOPLE V. SMITH AND PEOPLE V. GOKEY

We begin this Part with the understanding that, under New

York law, to justify a search incident to lawful arrest of a container
found within the arrestee’s immediate control, the police must possess
exigent circumstances.64 However, the two cases that created this rule,
which other courts have recently relied on,65 are somewhat at odds with
each other. This Part will provide a review of both People v. Smith
and People v. Gokey, and then analyze the distinctions between the
two, to determine which case is the better approach for analyzing
searches incident to arrest.

A. People v. Smith

In People v. Smith, the police encountered a suspect who had

jumped a turnstile.66 As they were inquiring with the suspect as to why
he jumped the turnstile, the police noticed that the defendant was

62 Id.; Robinson, 414 U.S. at 226.

63 See also Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977) (holding that where a
police officer has probable cause to stop a vehicle on the side of the road, the additional step
of the officer in asking the driver of the vehicle to step out so that the officer can make
additional observations and inquiries is a de minimis intrusion).
64 People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983); People v. Gokey, 457 N.E.2d 723,

724 (N.Y. 1983).

65 See People v. Jimenez, 8 N.E.3d 831 (N.Y. 2014).
66 Smith, 452 N.E.2d at 1225.

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wearing a bulletproof vest.67 When the defendant was asked if he was

wearing such a vest, the defendant denied that he was wearing one.68
Thereafter, one officer drew his gun, arrested the defendant, and
moved him 10 feet away from the location of the arrest.69 Another
officer took the briefcase that the defendant was carrying, opened it,
and found a .38 caliber revolver inside.70
The Supreme Court of New York County found that New York
v. Belton71 and United States v. Chadwick72 controlled the case, and
found that the weapon should be suppressed because the police “had
exclusive control of the briefcase.”73 The Court of Appeals disagreed
on two separate grounds.74 First, the Court of Appeals completely
ignored the argument made by the defendant that Belton and Chadwick
only applied to the automobile context, finding that those cases,
specifically Belton, allowed an extended search of containers found
within the grabbable area of an arrestee.75 Secondly, the Court of
Appeals found that, for a search incident to arrest of a container found
within the arrestee’s controllable area to be valid, the search after the
arrest must have been “not significantly divorced in time or place from
the arrest,” and there needed to be exigent circumstances.76
During its analysis, the Court of Appeals distinguished its
interpretation of the New York Constitution against the way in which
the Supreme Court interprets the United States Constitution by
discussing a utilization of the totality of the circumstances rather than
establishing bright-line rules of law.77 Regarding the safety of the
police officers, the Court of Appeals found that the officers reasonably
believed that the defendant had access to a weapon.78 The court

67 Id. at 1225-26.
68 Id. at 1226.
69 Id.
70 Id.
71 453 U.S. 454 (1981) (holding that the police may conduct a search incident to arrest of

the passenger compartment an arrestee’s vehicle, based on inherent exigencies of road-side

encounters).
72 433 U.S. 1 (1977) (holding that a search is not incident to arrest when the search is not

promptly conducted after the arrest or no exigency exists at the subsequent search much later
in time), abrogated by California v. Acevedo, 500 U.S. 565 (1991).
73
Smith, 452 N.E.2d at 1126.
74 Id. at 1226-28.
75 Id. at 1226, 1227.
76 Id. at 1227.
77 Id. at 1226-27.
78 Smith, 452 N.E.2d at 1227-28.

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pointed to the following facts in coming to its conclusion: a) at the time

of the arrest, the defendant was holding onto the suitcase that the police
searched, which made the contents of the suitcase “readily accessible”
to him; b) the container “was of sufficient size to contain a weapon”;
and c) the defendant had just committed a crime, and while the crime
was not suggestive of the presence of a weapon, the fact that the
defendant was wearing a bullet-proof vest certainly was, and was
enhanced by the denial of that fact.79
There was a flaw in the judgment of the Court of Appeals
regarding its analysis. In Smith, the court stated that:
a container may not be searched for a weapon or
evidence if it is apparent that it is so securely fastened
that the person arrested cannot quickly reach its
contents, or the person arrested makes unmistakably
clear that he will not seek to reach the contents, or the
container is so small that it could not contain a weapon
or evidence of the crime.80
These points have their flaws: first, the primary and secondary
points create a spectrum that spans across a line segment.81 Under the
first clause in the court’s rationale, where an arrestee has the bag so
closely secured to his body, he demonstrates an inability to reach its
contents.82 Thus, the arrestee could not realistically reach the evidence
or weapon contained in the container because the way in which the
container is situated on his person would prevent him from being able
to. An example of this may be a backpack because, logically, a person
cannot reach into a backpack when it is behind them. Additionally, the
second clause states the opposite, in that if an arrestee has made
“unmistakably clear” that he will not reach for the contents of the
container, then he also demonstrates an inability to do so potentially.83
An example of this may be that the arrestee tosses the bag away from

79 Id.
80 Id. at 1227.
81 A line segment is a part of a line that is bounded by two distinct endpoints and contains

every point along the segment found within the two end points. Therefore, a line segment is
the proper shape to describe anything along a spectrum because there are two extremes, and
everything that falls in between is part of the spectrum, but everything outside of the extremes
is not included.

82 Smith, 452 N.E.2d at 1227.

83 Id.

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himself prior to the arrest, but not in a way that constitutes an

abandonment of the container. Thus, in the same way that the bag can
be so closely secured to a person that he cannot reach its contents,
distance from the bag itself can also justify such a finding. Therefore,
a spectrum is created where both direct ends of the spectrum require
the court to find the lack of exigent circumstances because the
defendant cannot realistically reach the contents of the container at the
time of the arrest, either near or far.84
Second, the rationale used there is contradicted by other
portions of the Smith opinion.85 If the language mentioned above is
true, then how can the Court of Appeals say right before that “a search
‘not significantly divorced in time or place from the arrest’ may be
conducted even though the arrested person has been subdued and his
closed container is within the exclusive control of the police.”86
Arguably, if a person is subdued by the police, then there is no way
that he could acquire the contents of his bag, whether it is securely
attached to himself or not.
However, to say that the Smith opinion limited “exigent
circumstances” only to situations where the police reasonably believe
that the defendant may gain access to a weapon or may conceal or
destroy evidence would be incorrect. The Smith opinion did not
explicitly hold that those were the only two examples of exigent
circumstances that would justify such a search incident to arrest. In
fact, the court stated otherwise. While the Smith court stated that “[a]
person’s privacy interest in a closed container readily accessible to him
may become subordinate to the need of the People, under exigent
circumstances, to search it for weapons or evidence that otherwise
might be secreted or destroyed,”87 it also said that
[f]or compelling reasons, such as the safety of the
officers or the public or to protect the person arrested
from embarrassment, a search not significantly
divorced in time or place from the arrest may be
conducted even though the arrested person has been

84 Id. (citation omitted) (“Whether the circumstances are such as to justify a warrantless
search incident to arrest is to be determined . . . at the time of the arrest, but the justification
does not necessarily dissipate with the making of the arrest.”).
85 Id.
86 Id.
87 Smith, 452 N.E.2d at 1227.

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subdued and his closed container is within the exclusive

control of the police.88
Thus, it would seem that the Court of Appeals did not attempt
to limit itself to the exigencies that would justify a search incident to
arrest under this new rule. Possibly, the court could have believed that
“hot pursuit” would also justify the search because “hot pursuit” is an
exigent circumstance, but the court did not mention it. Therefore, it
would seem that Smith provided examples of exigencies, not
limitations of them.

B. People v. Gokey

Five months after the Court of Appeals decided People v.

Smith, it handed down People v. Gokey.89 In Gokey, the Court of
Appeals dealt with the exigency issue, ultimately ruling that containers
within an arrestee’s “grabbable area” may not be searched incident to
arrest without such evident exigencies.90
In Gokey, the police had received a tip that the defendant,
Gokey, was travelling by bus with a duffel bag full of marijuana to
Watertown, NY.91 The police arrived with an arrest warrant for an
unrelated larceny charge for the defendant, and a dog trained to sniff
for marijuana.92 The officers approached the defendant once he exited
the bus, informed him that he was under arrest, and frisked him.93
During the frisk, the police dog reacted to the duffel bag on the
ground.94 After the defendant was handcuffed, the duffel bag was
searched where eleven ounces of marijuana were discovered.95
The Court of Appeals, in Gokey, provided an analysis that
compared the federal standard regarding searches incident to arrest of
containers to the New York standard.96 Under New York v. Belton, the
Supreme Court of the United States held that a police officer may
conduct a search incident to arrest of any container within the

88 Id. (emphasis added) (internal quotation marks omitted).

89 457 N.E.2d 723 (N.Y. 1983).
90 Id. at 724.
91 Id.
92 Id.
93 Id.
94 Gokey, 457 N.E.2d at 724.
95 Id.
96 Id.

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“grabbable area” of the arrestee’s control.97 Indeed, the Court of

Appeals conceded that, under the federal standard, the search incident
to arrest of the defendant’s duffel bag would not have violated the
defendant’s constitutional rights.98 However, the Court of Appeals
chose not to follow the federal standard.99 Instead, the court held that
the search of the container within the arrestee’s immediate area needed
to satisfy two elements: first, the search of the container was made
contemporaneously in time and location to the arrest; and second, the
presence of exigent circumstances existed.100
In Gokey, the court held that the search of Gokey’s bag was
unconstitutional under the New York Constitution.101 The prosecution
in the case had “concede[d] that in all frankness there was no
immediate suspicion by the police officers that the defendant was in
fact armed.”102 The police did not take the bag away from Gokey upon
his arrest; in fact, they let Gokey keep the bag on the ground in between
his legs while they conducted the frisk.103 At the time of the arrest,
Gokey was handcuffed and surrounded by five police officers and a
dog.104 This demonstrated that the police did not reasonably believe
that he posed a danger to the arresting officers or the public because
the only focus was whether the bag contained marijuana. Additionally,
the court found the fact that the prosecution did not assert that the
officers reasonably believed that their search was justified to prevent
the destruction of evidence dispositive to show the lack of exigency.105

C. A Review of the Precedents

After reviewing both Smith and Gokey, it should be clear that

New York requires exigent circumstances for searches incident to
lawful arrest of containers found within the controllable area.
However, the two cases have created confusion for lower New York

97 New York v. Belton, 453 U.S. 454, 457-61 (1981) (relying primarily on Chimel v.

California, 395 U.S. 752 (1969)).

98 Gokey, 457 N.E.2d at 724.
99 Id.
100 Id.
101 Id. at 725.
102 Id.
103 Gokey, 457 N.E.2d at 725.
104 Id.
105 Id.

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courts.106 While Gokey is the leading New York precedent in this area,
it seems that Smith is the more appropriate case law to follow for
several reasons.
First, as a policy consideration, Smith is congruent case law
more in line with the Court’s reasoning in Robinson, in spite of Smith’s
exigent circumstances requirement. Both Robinson and Smith
recognized the inherent exigencies that can come into play with regard
to an arrest situation. Smith took the extra step to say that there needs
to be something more than probable cause to make an arrest in order
to search the container; however, unlike Gokey, Smith did not go so far
as to limit the several types of exigencies that would justify such a
search.107 The reasoning behind this is that “exigent circumstances”
are not limited only to instances that deal with evidence and danger,
but can also include instances where the police have engaged in “hot
pursuit of a fleeing felon” and “the need to prevent a suspect’s
escape.”108 Indeed, Smith stated that “protect[ing] the person arrested
from embarrassment” is a “compelling reason” that would justify the
search of a container incident to arrest, although the court did not
provide an example of such embarrassment to illustrate what it
meant.109
Congruence with federal law is a goal that New York should
aim to achieve. Indeed, the Court of Appeals has addressed the need
for uniformity with the Supreme Court in the past, with regard to
Fourth Amendment cases.110 Additionally, even the concurrence in

106 See, e.g., People v. Luna, 951 N.Y.S.2d 88, 2012 WL 1059392, at *8-11 (Sup. Ct. 2012)

(reviewing the problems that Gokey has created within the New York Court system).
107 Compare People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983) (“For compelling

reasons, such as the safety of the officers or the public or to protect the person arrested from
embarrassment, a search ‘not significantly divorced in time or place from the arrest’ may be
conducted even though the arrested person has been subdued and his closed container is within
the exclusive control of the police.” (emphasis added) (citations omitted)), with Gokey, 457
N.E.2d at 724-25 (“When an individual subjected to arrest has a privacy interest in property
within his or her immediate control or ‘grabbable area’, this court has identified two interests
that may justify the warrantless search of that property incident to a lawful arrest: the safety
of the public and the arresting officer; and the protection of evidence from destruction or
concealment.” (citations omitted)).
108 See Minnesota v. Olson, 495 U.S. 91, 100 (1990).
109 Smith, 452 N.E.2d at 1227.
110 People v. Ponder, 429 N.E.2d 735, 737 (N.Y. 1981) (“[S]ection 12 of article I of the

New York Constitution conforms with the Fourth Amendment regarding the proscription
against unreasonable searches and seizures, and this identity of language supports a policy of
uniformity in both State and Federal Courts.”). While it is absolutely true that “[t]he state
courts may experiment all they want with their own constitutions,” Kansas v. Carr, 136 S. Ct.
633, 641 (2016) (Scalia, J., opinion of the Court), because New York has insisted that it should

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Smith reasoned that the court should adopt a policy that is in

conformity with Robinson.111 Judge Jasen stated that, other than the
requirement that the search be conducted close in time and place to the
arrest, there was no legitimate reason to depart from the Fourth
Amendment jurisprudence on this issue.112 Judge Jasen also
complained that the existence of the federal standard under Robinson
and the new exigency requirement under Smith would create
problems.113
Second, Smith dealt with the issues that were contemplated in
both of these cases and raised the exigency requirement sua sponte.114
Because Smith was first to create the rule, the court in Smith had the
ability to deliberate on what constituted exigent circumstances in the
search incident to arrest context. There, the Smith court mentioned that
danger to the officer, loss or destruction of evidence, or other
“compelling reasons” could justify the search.115 Therefore, Smith
anticipated cases that would not fall neatly into the mold that it created,
and yet there could be a situation that would justify the search.
On the other hand, Gokey limited its analysis only as to whether
the officer reasonably believed in the destruction of evidence because
the government had conceded that the officers in Gokey did not fear
for their safety.116 Furthermore, the government had not even asserted
the presence of any exigency in the case at all, dooming its claim.117
Based on the previous language in Smith, the court in Gokey limited its
inquiry only to whether the police reasonably believed that the
defendant was able to conceal or destroy evidence contained in the
duffel bag, which it found lacking.118 Seemingly, Gokey presented a
situation that was based on only part of the Smith rationale that came
just months prior, and yet reached a drastically different conclusion

adopt a policy of uniformity, such congruence with respect to the Fourth Amendment would
seemingly not create a Tenth Amendment violation with regard to search and seizure
jurisprudence.
111 Smith, 452 N.E.2d at 1228 (Jasen, J., concurring).
112 Id.
113 Id.
114 Id. at 1227 (relying on People v. De Santis, 385 N.E.2d 577, 580 (N.Y. 1978), abrogated

by People v. Belton, 407 N.E.2d 420, 422 & n.1 (1980) (holding that the police may conduct
a search incident to arrest of a container found with the arrestee’s immediate control without
requiring or finding exigency).
115 Id.
116 Gokey, 457 N.E.2d at 725.
117 Id.
118 Id.

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with regard to the same legal issue that would have the repercussion of
having inconsistent results between similarly situated defendants.
Finally, Smith is the more forgiving standard regarding
searches incident to lawful arrest, recognizing that there are legitimate
law enforcement reasons for allowing the search into the container.119
For example, the temporal requirement, as stated in Gokey, is directly
from the language in Smith that stated that the defendant could have
gained access to the container “at the time of the arrest.”120 The critical
inquiry is whether there was the existence of any set of “exigent
circumstances” at the time of the arrest, and then whether the search
was done contemporaneously with that arrest.121 However, the
inherent exigencies of the arrest should be enough to justify the search.
The Gokey view, based on the Smith language, is that there must be the
existence of exigent circumstances after the arrest has been made.
While this is in conformity with Smith, the Gokey limitation on what
constitutes exigent circumstances is not.
Therefore, Smith presents the more appropriate standard to
follow with regard to searches incident to lawful arrest. However,
Gokey is the governing law regarding searches incident to lawful arrest
of containers found within an arrestee’s controllable area. Assuming
that the rule in Gokey is correct and based on sound reasoning, the next
Part will demonstrate the inconsistencies in how courts have applied
the Gokey rule, which has become problematic.

IV. GOKEY’S (MIS)APPLICATION IN PRACTICE

Because Gokey was decided subsequent to Smith, the Court of

Appeals may have effectively superseded Smith. In the wake of Gokey,
however, New York courts have been reaching inconsistent
conclusions under Gokey. Furthermore, while it would seem that
Smith has been superseded, it has been consistently relied upon,
together with Gokey, in these cases. This Part will demonstrate the

119 Smith, 452 N.E.2d 1227-28 (“Whether in fact defendant could have had access to the

briefcase at the moment it was being searched is irrelevant. He clearly could have had when
arrested and neither the distance from nor the time elapsed since the arrest was sufficient to
dissipate the reasonableness of conducting a search of the briefcase without a warrant.”).
120 Id. at 1227, 1227-28.
121 This view is shared by another scholar in the field of New York search and seizure law.

See Jacqueline K. Iaquinta, Interpreting Search Incident To Arrest In New York: Past, Present,
And Future, 30 TOURO L. REV. 1071, 1079 (2014).

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inconsistencies between cases that either (a) apply a strict

interpretation of Gokey or (b) apply a loose interpretation of Gokey.

A. Strict Interpretation of Gokey

Courts’ analyses that have applied a strict interpretation of

122
Gokey are flawed because they do not appear to take anything into
account that happened prior to the arrest to determine whether exigent
circumstances at the time of the arrest existed. These courts tend to
focus on whether an officer testified as to their reasonable belief in
such exigencies. Finally, the courts that apply this interpretation tend
to find that the evidence should have been suppressed.

1. People v. Dougall

In People v. Dougall,123 three officers were on patrol near

Bryant Park in Manhattan when they noticed Dougall standing
approximately one hundred feet away.124 The officers then observed
Dougall contact two males, reach into his shoulder bag, and give them
a manila envelope in exchange for money.125 The males took the
envelope to a park bench, opened it, and began to roll what appeared
to be a marijuana cigarette with the contents of the envelope.126 Then,
the officers observed a third male approach Dougall, watched Dougall
reach into his shoulder bag, and witnessed him perform the same
transaction as before.127
A police officer then approached Dougall, without his service
weapon drawn.128 As he approached, a scuffle ensued between
Dougall and the police officer, which caused the defendant’s bag to be
thrown to the ground.129 After Dougall had been handcuffed, the police
officer was joined by another officer, and all three began to leave the
park, with one of the officers carrying the shoulder bag.130 As they
were walking, the officer carrying the bag opened one of the
compartments of the bag and found what appeared to be marijuana in

122 See infra Part IV.A.1-6.

123 481 N.Y.S.2d 278 (Sup. Ct. 1984).
124 Id at 278-79.
125 Id.
126 Id.
127 Id.
128 Dougall, 481 N.Y.S.2d at 279.
129 Id.
130 Id.

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different bags.131 After opening that compartment, the officer opened

up another smaller compartment and found a small black revolver.132
At the hearing on the motion to suppress, the issue presented
was the following:
At issue in the present case is the legal and New York
Constitutional (Art. I, Sec. 12) validity of a Belton III
warrantless search of personalty, absent an automobile,
within the defendant’s reach (grab area) at the time of
the arrest, when the search is made contemporaneously
with the arrest but after the suspect and his property are
in custody en route to the police station, and there is no
threat to the officer’s safety or to the security of
evidence, which has no nexus to the arrest.133
When the issue is phrased as such, one can assume that the
court would rule in favor of the defendant by the end of the hearing.
Indeed, the Supreme Court of New York County found that the
evidence collected from the bag needed to be suppressed because there
was a lack of exigent circumstances based on the totality of the
circumstances.134 The court made the following conclusions based on
the totality of the circumstances: first, at the time of the search of the
bag, “there was no reasonable possibility that the defendant would
have been able to quickly reach and destroy the evidence therein”;135
second, the searching officer did not reasonably expect to find a
weapon for his interest was focused only on the marijuana in the bag;
third, there was no apparent justification for the officers to fear for their
safety at the time of the search.136 Therefore, the court suppressed the
evidence.137
The three conclusions that the Dougall decision rested on are
flawed. First, Smith explicitly rejects the “no reasonable possibility”
standard that Dougall stated, even where, as in this case, the defendant
was handcuffed and the bag was reduced to the exclusive control of
the police.138 Smith states that there are circumstances in which a

131 Id.
132 Id.
133 Dougall, 481 N.Y.S.2d at 279-80.
134 Id. at 282.
135 Id.
136 Id.
137 Id.
138 People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983).

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search such as this can be justified.139 Second, because of the

combination of the scuffle between the defendant and the police officer
with two previous sales for drugs by this defendant, the court should
have found that the defendant reasonably could have been armed. In
2009, the Mexican Government reported that 90% of murders
committed in Mexico were related to drugs.140 A study conducted in
1994 found that, within Pittsburgh, PA, 80% of nineteen-year old
people who sold hard drugs, such as cocaine, were found to also carry
a gun.141 The Chicago police have told reporters as recently as this past
February that 90% of gun violence and homicides in the city came
from drug gangs.142
If there is still the belief that drug crimes and gun violence are
not interrelated in some way, then one need only look to the
legislatures of some of the states, including New York, and the federal
government to make a determination as to how interrelated the two
really are based on the fact that they either treat the possession of a
weapon while engaged in a drug offense as a separate crime entirely,
or allow for an upward sentencing departure.143 Therefore, there is a
significant probability that the defendant in Dougall may have had
possession to a weapon because he had been involved in the sale of
drugs and fought with the officer prior to his arrest.
Finally, for the court to find that there is no reasonable belief
that the officer’s safety was endangered when the officer had been
involved in a fight with the defendant right after he sold drugs is
absolutely preposterous because other New York courts have found
that the fact that the defendant was handcuffed at the time of the search

139 Id.
140
Traci Carl, Progress in Mexico Drug War is Drenched in Blood, SAN DIEGO UNION-
TRIBUNE (Mar. 10, 2009, 1:28 PM), [Link]
[Link].
141 Amanda Atkinson et al., Interpersonal Violence and Illicit Drugs, WORLD HEALTH ORG.,

at 4, June 2009, [Link]

_violence_and_illicit_drug_use.pdf.
142 Stephen Changary, Drugs, Not Guns, Cause Gun Violence, [Link] (Feb.

1, 2018), [Link]
/01/[Link].
143 See, e.g., N.J. STAT. ANN. § 2C:39-4.1 (West 2018); 18 U.S.C. § 924(c)(1)(A) (2018);

N.Y. PENAL LAW § 265.19 (McKinney 2018) (“A person is guilty of aggravated criminal
possession of a weapon when he or she commits the crime of criminal possession of a weapon
in the second degree as defined in subdivision three of section 265.03 of this article and also
commits . . . a drug trafficking felony as defined in subdivision twenty-one of section 10.00
of this chapter arising out of the same criminal transaction.”).

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does not completely eliminate the exigency.144 The Dougall opinion

did not live without criticism from one New York trial court judge.
Judge Leslie Snyder of New York County made it very clear that the
decision in Gokey was not reflective of previous New York cases that
had held that the search of a container incident to a lawful arrest was
considered a de minimis intrusion where the ultimate intrusion, the
arrest, had already occurred.145 “To illustrate the illogical result
dictated by Gokey, see, People v. Dougall.”146

2. People v. Thompson

Tausheba Thompson was in Queens at nighttime when a

detective observed him engage in a hand-to-hand sale of marijuana
with an unknown man by removing a bag of marijuana from his pocket
while wearing a backpack.147 The detective approached Thompson
and asked him to remove the bag of marijuana from his pocket, which
Thompson did.148 Thereafter, the detective attempted to arrest the
defendant and asked him to remove his backpack from his back.149
Suddenly, Thompson attempted to punch the detective in the face and
fled from the detective.150 The detective gave chase and eventually
caught up to Thompson by grabbing onto the backpack.151 When the
detective grabbed the bag, he felt “an unidentifiable hard object” in the
bag, but the detective let go of the bag because he was elbowed in the
face by Thompson.152 The chase resumed with Thompson now

144 Smith, 452 N.E.2d 1227-28; People v. Wylie, 666 N.Y.S.2d 1, 4 (App. Div. 1st Dep’t

1997), appeal denied, 694 N.E.2d 895 (N.Y. 1998) (“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.
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.”).
145 People v. Montgomery, 489 N.Y.S.2d 975, 978-79 (Crim. Ct. 1985) (citing to People v.

Perel, 315 N.E.2d 452 (N.Y. 1973) and People v. Weintraub, 320 N.E.2d 636 (N.Y. 1974) for
the position that New York follows the de minimis intrusion rationale).
146 Id. at 979.
147 People v. Thompson, 988 N.Y.S.2d 209, 210 (App. Div. 2d Dep’t 2014).
148 Id.
149 Id.
150 Id.
151 Id.
152 Thompson, 988 N.Y.S.2d at 210 (internal quotation marks omitted).

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carrying the backpack in front of him.153 Eventually, the detective

caught up to Thompson again and the two fought over the bag, until it
was released by both, and the chase resumed again.154 The detective
caught Thompson a final time and was able to make the arrest,
approximately thirty-six feet away from where the bag was located.155
When the detective’s partner secured Thompson, the detective went
back to the backpack, opened it, and found a loaded semi-automatic
handgun.156
The Appellate Division reversed Thompson’s conviction for
possession of the weapon because the bag was not within Thompson’s
area of immediate control at the time of the arrest, the detective did not
assert that he searched the bag out of safety for himself, and the facts
did not support a reasonable belief that the bag contained a weapon.157
In addition, the Appellate Division reversed because the detective did
not assert that he searched the backpack to protect against the
destruction of evidence, and the facts did not support that belief.158
The Appellate Division incorrectly found that there was a lack
of exigent circumstances because the detective did not affirmatively
testify as to his “reasonable belief.” “While an officer need not
affirmatively testify as to safety concerns to establish exigency, such
apprehension must be objectively reasonable.”159 The facts that were
known to the detective prior to the arrest include the following: (1) the
detective had witnessed the defendant engaging in a hand-to-hand
transaction of marijuana; (2) when the detective asked the defendant
to remove the baggie that had contained the marijuana, the defendant
complied; (3) when the detective informed the defendant that he was
to be arrested and asked him to remove his backpack, the defendant
fled; (4) when the detective initially grabbed the defendant’s bag, he
felt “an unidentifiable hard object”; and (5) while giving chase in hot
pursuit and getting elbowed in the face, the detective noticed the
defendant repositioned the backpack so that it was in front of him.160
Based on the flight of the defendant, the crime with which he
was being arrested, the aggression of the defendant, and the

153 Id.
154 Id.
155 Id.
156 Id.
157 Thompson, 988 N.Y.S.2d at 211-12 (citations omitted).
158 Id. at 212.
159 Jimenez, 8 N.E.3d at 835.
160 Thompson, 988 N.Y.S.2d at 210.

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defendant’s action during the course of the chase, it is entirely

reasonable to draw an inference that the defendant was hiding
something in that bag, probably drugs.161 The defendant was ready to
relinquish the drugs that the detective had observed him selling from
his pocket arguably because the weight of the baggie was negligible
for a significant drug charge; however, a backpack was large enough
to conceal either a weapon or more drugs. Indeed, when the defendant
repositioned the bag to in front of himself, the contents of the bag
became “readily accessible to him,” for which he could have discarded
evidence during the course of the chase.162 Furthermore, the bag was
of “sufficient size to contain a weapon.”163 This inference was
strengthened by the fact that, during the course of the chase, the officer
felt “an unidentifiable hard object” in the bag.164
One may argue that because the bag was over thirty feet away
at the time the defendant was handcuffed, the defendant could not have
realistically gained access to anything in the bag. This is valid
criticism; however, one must remember the point at which the
defendant is “under arrest.” A seizure, including an arrest, occurs
when a person reasonably believes that his freedom of movement has
been curtailed.165 Therefore, the point at which Thompson was seized
was when the officer informed him that he was under arrest because a
reasonable person would understand that, at that point, he is not
entitled to go anywhere else he wanted. Indeed, Thompson’s freedom
of movement was restricted to the area in which he ran: anywhere away
from the officer. Thus, the arrest had occurred prior to the point at
which Thompson ran away, which means that the hot pursuit chase,
the multiple scuffles, and the “unidentifiable hard object” were all facts
that the detective was apprised of after the arrest had been made.
Conclusively, this means that exigent circumstances existed after the
arrest because the detective was running after the defendant in hot
pursuit, the detective had witnessed the defendant dealing drugs, and
he felt an unidentifiable hard object during the chase. These facts,

161 See People v. Garcia, 17 N.Y.S.3d 29 (App. Div. 1st Dep’t 2015) (holding that a police

officer was justified in searching arrestee’s backpack incident to arrest, even where the officer
performing the search was not the initial police officer to observe the “suspicious exchange”
between the arrestee and another person, and there was no aggression by the arrestee).
162 See Smith, 452 N.E.2d at 1227.
163 Id.
164 Thompson, 988 N.Y.S.2d at 210.
165 See Henry v. United States, 361 U.S. 98, 103 (1959) (“When the officers interrupted the

two men and restricted their liberty of movement, the arrest, for purposes of this case, was
complete.”); Sibron v. New York, 392 U.S. 40, 67 (1968).

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taken in their totality, would allow a reasonable inference that the

defendant was either concealing evidence or in possession of a
weapon.

3. People v. Jimenez

In People v. Jimenez,166 the police responded to a radio call

about a burglary in progress at an apartment building that was
participating in Operation Clean Halls, a program where police were
authorized entry into privately owned buildings to conduct patrols.167
The suspects that were identified in the radio call were two Latino
males.168 At first, two officers arrived at the scene; shortly thereafter,
four to six additional officers arrived to help with the investigation.169
When the first two officers arrived, they noticed Jimenez, who was a
Latina woman, and another Latino man exit the stairwell into the
lobby.170 Behind Jimenez and the other man, the superintendent of the
apartment complex was following them, pointing at them and
“mak[ing] a face” that one of the officers understood as a request to
stop them even though she never explicitly stated to do so.171 The
officers moved the superintendent to the side “for safety reasons,” and
then began questioning the defendant.172 At first, she told the officers
that the two of them were in the building to visit a friend; however, she
changed her story to say that she was in the building to find a notary.173
Upon further questioning, she could not provide the names or
apartment numbers of either the “friend” or the notary.174
Additionally, there was a “No Trespassing” sign posted in the lobby.175
At that point, the officers arrested the defendant for trespassing
in the building.176 Prior to handcuffing, one of the officers went to
remove Jimenez’s shoulder bag.177 Another officer stated that the bag

166 8 N.E.3d 831 (N.Y. 2014).

167 Id. at 833.
168 Id.
169 Id.
170 Id.
171 Jimenez, 8 N.E.3d at 833.
172 Id.
173 Id.
174 Id.
175 Id.
176 Jimenez, 8 N.E.3d at 834.
177 Id.

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she was holding “appeared to be heavy.”178 The officer removed the

bag, opened it, and found a handgun that appeared to be loaded.179
Jimenez was indicted for possession of a weapon in the second
degree and criminal trespass in the first degree.180 Justice Darcel Clark
denied the defendant’s motion to suppress the evidence for safety
concerns.181 She reasoned that the bag was not within the exclusive
control of the police at the time of the arrest and that the
superintendent’s gestures suggested that Jimenez and the other man
were in the building in connection with the reported burglary.182 The
defendant was tried and convicted on both counts.183
The Appellate Division, First Department, unanimously
affirmed the trial court’s decision.184 The judges agreed that, at the
time of the arrest, Jimenez’s shoulder bag had not been reduced to the
exclusive control of the police, thus giving the defendant a potential
opportunity to reach into the bag.185 Additionally, they reasoned that
the bag was big enough to contain a weapon.186 Finally, they stated
that the surrounding circumstances supported a reasonable belief that
exigency was required in spite of neither officer testifying at the
suppression hearing regarding their concern for safety.187
The Court of Appeals, in a 4 to 3 decision, reversed the decision
of the Appellate Division.188 Chief Judge Lippman, writing for the
majority, stated that the People failed to meet their burden of proving
exigency, in part, because neither officer testified at the suppression
hearing regarding their reasonable belief for safety.189 However, the
Court of Appeals held that “[w]hile an officer need not affirmatively
testify as to safety concerns to establish exigency, such apprehension
must be objectively reasonable.”190
Then, the Court of Appeals analyzed each fact of the case and
dissected them, piece-by-piece, and found that the search was

178 Id.
179 Id.
180 Id.
181 Jimenez, 8 N.E.3d at 834.
182 Id.
183 Id.
184 People v. Jimenez, 950 N.Y.S.2d 700, 700 (App. Div. 1st Dep’t 2012).
185 Id.
186 Id.
187 Id.
188 Jimenez, 8 N.E.3d at 833, 836.
189 Id. at 835.
190 Id.

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unreasonable.191 The court reasoned the following: (1) at the time of

the search of the bag, there were between four and eight police officers;
(2) there was no indication that either Jimenez or her partner was acting
threateningly, and they complied with the police during the removal of
the bag, the arrest, and the subsequent frisk; (3) the heaviness of a bag,
on its own, is not enough to support a reasonable belief of a lack of
safety or destruction of evidence; (4) the superintendent’s gestures, on
their own, would also not provide a reasonable belief; (5) the fact that
Jimenez and the other man were separated during the questioning by
the officers, on its own, is not enough to establish a particularized
suspicion of a person possessing a weapon; and (6) while the police
were responding to a call about a burglary, there was no evidence to
establish that either Jimenez or the other man was part of the burglary,
putting aside their common ethnicity.192
The problems with the court’s analysis in Jimenez are twofold.
First, the court’s use of the number of officers to deal with possible
safety concerns is a factor that should have been given less weight.
Second, the court used a divide-and-conquer analysis when dealing
with each fact in the analysis and failed to apply the totality of the
circumstances to the situation and account for all of the facts.193
Regarding the number-of-officers factor, there can be no doubt
that multiple officers would arrive when there was a radio call about
an ongoing burglary. In 2008, the year that the Jimenez case began, 41
police officers across the country lost their lives while in the line of
duty to gunfire.194 In this particular case, the apartment complex that
was entered into had been participating in Operation Clean Halls.195
Operation Clean Halls is a program designed to allow the NYPD entry
into the building, upon a request made by the landlord to the New York
City Department of Housing and Development, so that the officers can
stop and question people loitering in the building in an attempt to
reduce the amount of drug dealing in these buildings.196 In all
likelihood, the landlords contact the New York City Department of
Housing and Development because they have a problem with drug

191 Id.
192 Id. at 835-36.
193 Jimenez, 8 N.E.3d at 835-36.
194 Honoring Officers Killed in 2008, OFFICER DOWN MEMORIAL PAGE,
[Link] (last visited Oct. 24, 2018).
195 Jimenez, 8 N.E.3d at 833.
196 Operation Clean Halls Request, [Link], [Link]
resources/service/2154/operation-clean-halls-request (last visited Oct. 24, 2018).

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dealing going on in the building, establishing the belief that the

building is located in a high-crime area.197
The Jimenez officers’ apprehension of safety would logically
be increased when they found Jimenez, in a high crime area, while
responding to a call for a burglary.198 Furthermore, the superintendent
of the building followed the defendant, while pointing at her, and
making a face that the officers understood to mean “don’t let her get
away.”199 Finally, the defendant lied to the officer about why she was
there.200
Additionally, where safety is concerned, the number of officers
present at the scene will not reduce the number of bullets located in the
magazine of Jimenez’s handgun. While the number of officers is
bound to have an impact on a suspect’s decision as to whether to use a
weapon, the danger persists regardless and, therefore, that fact should
be a minor factor in determining whether exigency exists. At the time
of the arrest, while there were potentially eight officers, the bag had
not been reduced to the “exclusive control of the police,” as it was still
in Jimenez’s possession because she had not yet been handcuffed.201
Additionally, Jimenez’s bag “was of sufficient size to contain a
weapon,”202 and one of the arresting officers testified that the bag
“appeared to be heavy.”203 Therefore, Jimenez had the opportunity to
reach into her big bag, while she was unhandcuffed, and reach for a
weapon that the officers reasonably believed she might have
possessed. This leads to my next point.
The court in Jimenez found it necessary to look at each of the
facts in this case, in isolation of one another, and analyze them
piecemeal before reaching its conclusions.204 The court’s divide-and-
conquer analysis of every fact in the case was the reason why it came
to its conclusion. The court found that the superintendent’s gestures,
the heaviness and size of the bag, and the ethnicity of the defendant
were not facts, standing alone, that would allow the court to find a
reasonable belief for the threat to the safety of the officers on the

197 Operation Clean Halls, LATINO USA (Apr. 5, 2012), [Link]

04/05/operation-clean-halls/.
198 Jimenez, 8 N.E.3d at 833.
199 Id.
200 Id.
201 See People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983).
202 Id.
203 Jimenez, 8 N.E.3d at 834.
204 Id. at 835.

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scene.205 Seemingly, the court provided a good faith, innocent

reasoning to determine that the search was unreasonable based on all
of the facts in the case. However, this type of analysis is generally
prohibited in the context of dealing with a Fourth Amendment claim.206
“The totality-of-the-circumstances test ‘precludes this sort of divide-
and-conquer analysis.’”207
In this case, the court possessed the following facts: (1) there
was a call about a burglary in which two Latino males were involved;
(2) the area where the burglary was reported was a high crime area,
based on the apartment’s participating in Operation Clean Halls; (3)
when the police entered the building, they noticed the defendant being
followed by the superintendent of the building, who was pointing at
her and making a face that the officer believed meant “don’t let her get
away”; (4) when the officers began questioning about why she was
there, she lied two times; (5) she was trespassing in the building, which
was suspicious because the building was located in a high crime area;
(6) she was carrying a bag that was sufficiently big to carry a weapon,
and it appeared heavy; (7) while the defendant did not fit the
description in the radio call, her partner may have; and (8) at the time
of the arrest, Jimenez’s bag had not been reduced to the exclusive
control of the police.208 Additionally, to take an extra precaution, the
officers moved the superintendent to the side “for safety reasons.”209
While it is true that each of these facts could be subject to a
completely valid, innocent, good-faith rationale for its existence, taken
in the collective, they represent an entirely different story. The officers
had probable cause to arrest the defendant for trespass.210 In addition

205 Id.
206 Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (“Probable cause exists where
‘the facts and circumstances’ within their (the officers’) knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or being committed.” (citation
omitted)); Maryland v. Pringle, 540 U.S. 366, 372 n.2 (2003); District of Columbia v. Wesby,
138 S. Ct. 577, 588 (2018) (“Our precedents recognize that the whole is often greater than the
sum of its parts—especially when the parts are viewed in isolation.”); Smith, 452 N.E.2d at
1226-27 (“We have interpreted the New York Constitution to require that the reasonableness
of each search or seizure be determined on the basis of the facts and circumstances of the
particular case.”).
207 Wesby, 138 S. Ct. at 588 (quoting United States v. Arivizu, 534 U.S. 266, 274 (2002)).
208 Jimenez, 8 N.E.3d at 833-34; but see People v. McPherson, 750 N.Y.S.2d 862 (App.

Div. 1st Dep’t 2002) (holding that the search of an arrestee’s container was appropriate where
the police had responded to an anonymous 911 call about a burglary and the container had not
been reduced to the exclusive control of the police at the time of the search).
209 Jimenez, 8 N.E.3d at 833.
210 Id. at 834.

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to the crime of the arrest, “[e]xigency may also derive from

circumstances other than the nature of the offense.”211 When taken in
the totality of the circumstances, the facts in this case would give rise
to a reasonable belief that the officers feared for the safety of
themselves, or the superintendent. Most strikingly, the court did not
mention the fact that the defendant lied to the police in its analysis of
the officer’s reasonable belief. Nor did the court address the lack of
“the exclusive control of the police” in the container at the time of the
arrest. Therefore, after reviewing the facts in the totality, there can be
no question that the search of Jimenez’s bag in this case was
reasonable.
In the dissent, three judges criticized the majority for
substituting its beliefs for the factual considerations that were made by
both the trial court and the Appellate Division.212 While the dissent
acknowledged that, at the time of the arrest, the police did not have
probable cause to arrest the defendant for the burglary,213 the dissent
pointed out that the officers had reason to believe that the defendant
was involved with the burglary because of the actions of the
superintendent following the defendants to the lobby.214 Additionally,
the dissent reasoned that the case was more akin to Smith than to Gokey
because the defendant lied to the police and the defendant’s bag was
of sufficient size to contain a weapon.215 Moreover, the dissent
distinguished Gokey because the government had not conceded the
lack of exigent circumstances for the officers’ safety and the police in
Jimenez did not allow the defendant to keep the container in their
possession to search immediately.216 Finally, the dissent noted that the

211 Id. at 835.

212
Id. at 836 (Abdus-Salaam, J., dissenting in part) (“Whether the police acted reasonably
in conducting the warrantless search of defendant’s handbag involves ‘mixed questions of law
and fact’ and our review is therefore ‘limited to whether there is record support for the
determinations of the courts below.’ Contrary to the majority, I conclude that there is record
support for the unanimous findings of the lower courts that the search here was reasonable
under all of the circumstances. Accordingly, I would affirm the conviction.”); see People v.
Carroll, 740 N.E.2d 1084, 1089 (N.Y. 1990) (holding that trial courts are entitled to wide
discretion in their evidentiary determinations and that such determinations should not be
disturbed on appeal absent an abuse of discretion); People v. Prochilo, 363 N.E.2d 1380, 1381
(N.Y. 1977) (“At the outset we observe that much weight must be accorded the determination
of the suppression court with its peculiar advantages of having seen and heard the witnesses.”).
213 Jimenez, 8 N.E.3d at 838.
214 Id.
215 Id.
216 Id. at 837.

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number of officers would not have prevented the defendant from firing
the weapon that she possessed at them.217
I share the views of the Jimenez dissent and would have
affirmed the decisions of the lower courts.

4. People v. M.R.

On January 2, 2007, four police officers went to the defendant’s

apartment to ask him questions about the shootings of the defendant’s
two brothers a few days earlier.218 At the time that they visited the
defendant, the police had not yet suspected that the defendant was, in
fact, his own brothers’ shooter.219 They also did not confer with the
detective tasked with investigating the shooting or the shooting
victims.220 The defendant permitted the officers to enter his apartment,
and the officers went to an L-shaped couch and a love seat where the
defendant had his jacket.221 Four bags of marijuana were located near
the jacket, and the police decided, at that point, to handcuff the
defendant but not place him under arrest; they detained him in order to
investigate further.222 After another search revealed marijuana in a
bedroom, the defendant was moved away from the couch where he had
initially been sitting, questioned by the police, and then allowed to sit
on the love seat.223 Thereafter, one of the officers lifted the couch
cushions of the love seat and found empty glassine envelopes.224
The other officer made the following admissions in a court
proceeding: (1) at the time that the defendant had been placed in
handcuffs, the love seat was not within the defendant’s “lungeable”
area; and (2) he had no idea why the first officer decided to lift the love
seat cushions up.225 Furthermore, the officer never stated that he felt
in danger during the investigation.226 When the first officer lifted
another love seat cushion, he found a .357 caliber revolver, the
defendant’s driver’s license and live ammunition for the gun.227

217 Id. at 838.

218 People v. M.R., 907 N.Y.S.2d 102, 2009 WL 5525297, at *1 (Sup. Ct. Bronx Cty 2009).
219 Id.
220 Id.
221 Id. at *2, *5.
222 Id. at *2.
223 M.R., 2009 WL 5525297, at *3.
224 Id. at *2-3.
225 Id. at *2-4.
226 Id. at *2, *3-4, *11.
227 Id. at *4.

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The Bronx County Supreme Court suppressed the gun

reasoning that there was a lack of exigent circumstances because the
officer never feared for their safety or the destruction of evidence.228
While the officer testified that the handcuffs were only used to detain
the defendant, the People conceded that the defendant was not free to
leave at that point, and the court deemed that the defendant was
arrested at that point, which meant that they could search the
defendant’s person and the couch where the jacket had been located.229
However, the court found that, based on the officer’s testimony, the
love seat was not within the defendant’s area of immediate control.230
The court’s conclusion in M.R. with respect to the “area of immediate
control” is correct and, therefore, the gun, the driver’s license, and the
ammunition should have been suppressed; however, the Gokey
application, with regard to the temporal requirement, was incorrect.
First, if the officer testified that the loveseat was not within the
area of immediate control of the defendant at the time that he was
arrested, then the search not only violates the defendant’s New York
constitutional rights, but it also violates his federal constitutional
rights.231 The search incident to arrest exception, as it relates to this
Note, allows the police to search the person and the area within the
arrestee’s immediate control and nothing more. What then follows is
that if the search is not of the person of the arrestee or of his area of
immediate control after the arrest, then it cannot be justified as a search
incident to arrest, under any law, absent a warrant or another exception.
While the court in M.R. did address Chimel, it did so after a full-blown
Gokey analysis. However, if the search would not pass muster under
Chimel, then there would be no need to address whether the search
passes under state law because it already violated federal law.
Second, the temporal requirement under Gokey was clearly not
met in this case, but it was not addressed by the court. Under Gokey,
the search of the container must be done “contemporaneously with the
arrest.”232 In Gokey, for example, when the defendant was under arrest,
he was frisked, and the officers used a dog to sniff his bag for drugs.233
Immediately after the dog reacted, the defendant was placed in

228 M.R., 2009 WL 5525297, at *11.

229 Id. at *10.
230 Id.
231 See Chimel v. California, 395 U.S. 752, 762-63 (1969).
232 People v. Gokey, 457 N.E.2d 723, 725 (N.Y. 1983).
233 Id. at 724.

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handcuffs, and the police searched the bag.234 Because the court in
Gokey never addressed the issue of whether the officer’s conduct there
met the temporal requirement, it would seem that that the officers met
the requirement because the only ground that the Gokey court reversed
on was the lack of exigent circumstances. Therefore, such a prompt
search, as was performed in Gokey, will be used as the marker for
determining the satisfaction of the “contemporaneous” prong.
In M.R., the court mentioned the temporal requirement235 but
did not address whether it was satisfied in this case.236 Here, the
defendant was arrested and placed on a couch.237 Thereafter, one
officer went to the bedroom and found more marijuana.238 When the
officer emerged from the bedroom, the following occurred: (1) the
officer noticed the defendant and another police officer having a
conversation; (2) the officer asked the defendant if there was anything
else in the apartment; (3) the defendant admitted that the marijuana in
the bedroom was his; (4) the defendant’s girlfriend told the officer that
the bedroom was her son’s; (5) the defendant was then allowed to
smoke two cigarettes, one of which was done very quickly; (6) the
defendant drank half a glass of water; and (7) the officer gave the
defendant the option to sit on a living room chair or the love seat, and
the defendant chose the latter.239 Prior to all of this occurring, neither
the couch where the defendant’s jacket was nor the loveseat had been
searched. In total, the time between the officer emerging from the
bedroom and discovering the handgun had been about three minutes,
not including the time between when the defendant had been
handcuffed before entry into the bedroom.240
If the search in Gokey was contemporaneous, the search in
M.R. was the opposite. Unlike Gokey, the search in M.R. was not
performed on the love seat until more than three minutes after the
defendant had been arrested. Arguably, the contemporaneous
requirement must be read in conjunction with the exigency
requirement because the fact that an officer would immediately search
an object after an arrest lends credence to the belief that the officer may
have believed there was something in the bag. However, these

234 Id.
235 M.R., 2009 WL 5525297, at *10.
236 Id. at *11.
237 Id. at *2 (“The People concede that defendant was not free to leave at that point.”).
238 Id. at *3.
239 Id.
240 M.R., 2009 WL 5525297 at *2-3, *4.

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requirements are separate from one another.241 Therefore, it would

appear that a search occurring three minutes after an arrest has been
made is not a contemporaneous search, even if there had been the
existence of exigent circumstances. That being said, the substantive
Gokey exigency analysis was not needed for two reasons, as stated
above. Thus, it would seem that the court in M.R. was correct but for
the wrong reasons.

5. People v. Morales

At around 9:00 pm on February 29, 2008, two officers

responded to a 911 call from someone about a suspicious man located
in a restaurant.242 When the officers arrived, the restaurant owner
greeted them outside and told them that the suspect appeared to be
stealing from several women’s purses.243 The officers went inside the
restaurant, asked the defendant to talk with them outside, and he did
so.244 As the three were walking outside, the defendant turned around
and jammed his hands into his jacket pockets.245 The officers
attempted to remove the defendant’s hands from his pockets, and then
a struggle ensued.246 The police eventually subdued and arrested the
defendant by handcuffing him, and then moved him to the back of a
police car.247 After the defendant had been moved to the car, the police
searched his jacket, which had fallen off during the struggle, and found
a box cutter knife and several envelopes containing drugs.248
The New York County Supreme Court denied a motion to
suppress the drugs that were found in the jacket, and the defendant was
convicted at trial of criminal possession of a controlled substance in
the fifth degree.249 The Appellate Division, First Department, reversed
the trial court decision, finding that the evidence seized from the jacket

241 Gokey, 457 N.E.2d at 724-25 (“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. . . . Moreover, the
search must have been conducted contemporaneously with the arrest.”).
242 People v. Morales, 2 N.Y.S.3d 472, 474 (App. Div. 1st Dep’t 2015).
243 Id.
244 Id.
245 Id.
246 Id.
247 Morales, 2 N.Y.S.3d at 474.
248 Id.
249 Id. at 477.

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was not the product of a valid search incident to arrest.250 In coming

to this conclusion, the court found that, at the time of the search, the
defendant did not have access to the jacket because he was in a police
car, thus negating any sense of exigency.251 This conclusion
completely misreads both Smith and Gokey because the measurement
of whether exigency existed is not determined at the time of the search
but rather “[t]he reasonableness of a police officer’s assertion of either
or both of these predicates to justify a warrantless search is measured
at the time of the arrest.”252
With that understanding, one must determine when the
defendant was “arrested” within the meaning of the Fourth
Amendment. That moment occurred after the defendant had jammed
his hands into his pockets and the defendant engaged in a scuffle with
the police. Prior to that point, the police had received a 911 call about
the defendant, the store owner pointed the defendant out when they
arrived, and the defendant complied with the police request to go
outside, all of which would lead to the belief that the police had
“reasonable suspicion” prior to the defendant’s jamming his hands in
his pocket.253 During the scuffle with police, that would be enough to
give the police probable cause to make an arrest, and because
defendant’s freedom of movement was curtailed, the defendant was
seized, and was therefore “under arrest.”
Moreover, the defendant was fighting with the police, and the
jacket was still in his possession at that time, and not reduced to the
exclusive control of the police. Furthermore, because the defendant’s
hands were in his pockets, the contents of his pockets were “readily
accessible” to him. Finally, because the restaurant owner believed that
the defendant was stealing from women’s purses and the defendant
jammed his hands in his pockets, an officer could reasonably believe

250 Id.
251 Id. at 475. In coming to this conclusion, the Morales court relied on the following cases:
People v. Thompson, 988 N.Y.S.2d 209 (App. Div. 1st Dep’t 2014); People v. Diaz, 966
N.Y.S.2d 413 (App. Div. 1st Dep’t 2013) (holding that the search of a backpack was unlawful
where the defendant was handcuffed at the time of the search and the bag was no longer in his
control); People v. Julio, 666 N.Y.S.2d 171 (App. Div. 1st Dep’t 1997).
252 People v. Gokey, 457 N.E.2d 723, 725 (N.Y. 1983) (emphasis added); People v. Smith,

452 N.E.2d 1224, 1227-28 (N.Y. 1983) (“Whether in fact defendant could have had access to
the briefcase at the moment it was being searched is irrelevant. He clearly could have had
when arrested and neither the distance from nor the time elapsed since the arrest was sufficient
to dissipate the reasonableness of conducting a search of the briefcase without a warrant.”
(emphasis added)).
253 Morales, 2 N.Y.S.3d at 474.

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that the defendant was possibly attempting to destroy evidence related

to that crime,254 and the officer did not even have to affirmatively
testify to that.255

6. Summary of Strict Interpretation Cases

Dougall, Thompson, Jimenez, M.R. and Morales present a

sample of cases where New York courts have applied a strict
interpretation of Gokey, leading to results that conflict with the
underlying justification for searches incident to arrest. These cases
clearly demonstrate the difficulty in application that Gokey has set
forth for the trial courts and the problems that the rules of law have
created for subsequent Appellate Division and Court of Appeals
decisions. However, some of the following cases have established that
reviewing courts give a rather loose reading of Gokey in denying a
defendant’s motion to suppress in similar circumstances as in the
above cases.

B. Loose Interpretation of Gokey

Courts that have applied a loose interpretation of the Gokey

rule256 seem to rely less on Gokey and more on Smith. Additionally,
these courts tend to either (1) infer that exigent circumstances existed
based on the facts of the case, or (2) not mention exigency at all.
Finally, these courts are more willing to deny motions to suppress in
cases concerning searches incident to arrest where the search of the
container was done immediately after the arrest had been made.

1. People v. Wylie

On February 20, 1996, a police officer was assigned to

investigate a robbery of a “Love Store” employee who had been
bringing the proceeds of the Love Store’s business to the bank.257 The
robber was described as a six foot tall, black male with a goatee,
weighing between 230 and 250 pounds, and wearing a black or tan

254 Gokey, 457 N.E.2d at 724.

255 People v. Jimenez, 8 N.E.3d 831, 835 (N.Y. 2014).
256 See infra Part IV.B.1-5.
257 People v. Wylie, 666 N.Y.S.2d 1, 1-2 (App. Div. 1st Dep’t 1997), leave to appeal denied,

694 N.E.2d 895 (N.Y. 1998).

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jacket.258 The robber also had possession of the bag in which the
proceeds had been kept—the brown bag with the money was located
inside a Love Store bag, which was contained inside a Gap bag.259 No
one at the bank saw the robbery.260 Furthermore, the robbery victim
showed no signs of being hurt from the robbery, in spite of the fact that
he said he had been hit in the face.261 Additionally, the victim had
given conflicting descriptions to other police officers.262 Eventually,
the victim confessed that the robbery was a “phony robbery” and that
he had been working with a man by the name of “Paul,” who worked
at a local jewelry store.263
With the new information they had acquired about Paul, the
police went to Paul’s residence and waited for him to show up.264
When a man meeting Paul’s description approached, the police left
their vehicle and approached him.265 After confirming that the person
they found was the Paul they were looking for, the police officers
arrested him and handcuffed him.266 A search of his right coat pocket
revealed a plastic bag with the Love Store logo, and inside there were
two bundles of $3,000 each.267
The trial court found that the money in the bag should have
been suppressed because the police had an obligation to secure a
warrant to search the closed bag after the defendant had been
handcuffed.268 Furthermore, the trial court also reasoned that Gokey
controlled, the search was not justified to prevent the destruction of
evidence, and the search was not based on a reasonable belief that the
defendant had a weapon in the bag.269
The Appellate Division, First Department, unanimously
disagreed with the suppression ruling and reversed.270 The court in
Wylie explained that the search incident to arrest exception was based
on the need to protect the arresting officer by permitting him “to search

258 Id. at 2.
259 Id.
260 Id.
261 Id.
262 Wylie, 666 N.Y.S.2d at 2.
263 Id.
264 Id.
265 Id.
266 Id.
267 Wylie, 666 N.Y.S.2d at 2.
268 Id.
269 Id.
270 Id. at 3.

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for and seize weapons when there is reason to fear for his safety and in
preventing the person arrested from destroying evidence of criminal
involvement by permitting the arresting officer to search for and seize
such evidence.”271 The court also recognized that “[a]nother
consideration underlying this exception is that since the arrest itself
constitute[d] such a major intrusion on an individual’s privacy, ‘the
encroachment caused by a contemporaneous search of the arrestee and
his possessions at hand is in reality de minimis.’”272
This rationale conflicts with Gokey because the de minimis
rationale is rejected by the Court of Appeals, which recognizes rather
that “[u]nder 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.”273 Therefore, the de minimis rationale is at odds with
a New York citizen’s reasonable expectation of privacy as protected
by Gokey and its progeny.274
Furthermore, the court in Wylie found that the bag had not been
reduced to the exclusive control of the police because it failed to meet
the “test for exclusive control, as defined . . . by the Court of
Appeals.”275 Then, the court in Wylie stated:
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. 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

271 Id. (citing People v. Belton, 432 N.E.2d 745, 746-47 (N.Y. 1982)).
272 Wylie, 666 N.Y.S.2d at 3 (quoting People v. De Santis, 385 N.E.2d 577, 579 (N.Y.
1978)).
273 Gokey, 457 N.E.2d at 724.
274 Id.
275 Wylie, 666 N.Y.S.2d at 3-4.

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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.276
While the conclusion of the court in Wylie was correct, it does
not comport with Gokey. New York courts have held that handcuffing
a defendant can, in some instances, eliminate any reasonable inference
of exigent circumstances.277 Under the traditional Gokey view, the
police would have been entitled to seize the Love Store bag but not
search it without a warrant because the defendant had been handcuffed,
and the bag had been removed from his jacket, which put it in the
exclusive control of the police and removed the exigency. However,
the court in Wylie invented the “determined arrestee” and allowed for
the possibility of kicking or shoving, maybe even biting, to justify why
a search that is done right after an arrest had been made is justified and
some leniency is granted in such case. To this day, Wylie is still the
only Appellate Division case in New York that mentions “a determined
arrestee” when performing an exigency analysis.

2. People v. Doe

Similar to Thompson,278 People v. Doe279 involved the search

of a bag after the defendant had taken flight from the police officer.280
A police officer witnessed the defendant exchange a small package that
he pulled from a pack on his waist for money.281 Thereafter, the officer
yelled “police,” and the defendant fled into an abandoned building.282
The officer eventually subdued and arrested the defendant, removed
the defendant from the building, and then checked the pack on his
waist, in which he found narcotics.283

276 Id. at 4 (emphasis added).

277 People v. Rosado, 625 N.Y.S.2d 162, 163 (App. Div. 1st Dep’t 1995) (“Once the
defendant was under arrest and the change purse was safely in the possession of the arresting
officer, there was absolutely no reason why a warrant for a search of the purse’s contents could
not have been obtained if there had in fact been any basis to suppose that the purse contained
either contraband or evidence of the crime for which the arrest had been made.”).
278 See supra Part IV.A.2.
279 711 N.Y.S.2d 1 (App. Div. 1st Dept. 2000).
280 Id. at 1.
281 Id.
282 Id.
283 Id.

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The Appellate Division, First Department, unanimously

affirmed the defendant’s conviction.284 The court held that the search
was justified because “the situation was volatile in that [the] defendant
had been subdued after a struggle [with police].”285 The Appellate
Division made no direct mention of exigent circumstances, or whether
the police officer reasonably believed in them at the time.
Furthermore, the Appellate Division relied on De Santis286 and Wylie
in coming to its conclusion; it did not cite to Gokey, nor did it mention
exigent circumstances.287
Because this was a search incident to arrest of a container found
within the controllable area of the arrestee, Gokey controlled.288
Additionally, this case presented similarities to Thompson, where a
defendant fled after the police had approached him for drug sale and
the situation became volatile. However, the Appellate Division in Doe
chose not to rely on Gokey as the controlling precedent but rather chose
to follow Wylie and De Santis.289 Under this rationale, the Appellate
Division eschewed the exigent circumstances requirement and
seemingly reasoned that the search was proper because it was a de
minimis intrusion. Furthermore, the rationale may have considered
Wylie’s “determined arrestee” because there was a struggle. Be that as
it may, Gokey requires the existence of exigent circumstances to justify
a search of a container in the area of immediate control.290 Because
the Appellate Division in Doe chose not to rely on Gokey explicitly, it
seems as though it implicitly recognized that the struggle that occurred
was an exigent circumstance and would justify the search of the pack
on the defendant.

3. People v. Jones

In a case somewhat analogous to Jimenez, the Appellate

Division, Third Department, dealt with a case where a defendant was
trespassing and lied about why he was present. In People v. Jones,291
an employee of a private residential facility noticed that the defendant

284 Doe, 2000 N.Y. App. Div. LEXIS 7147, at *1.

285 Id.
286 People v. De Santis, 385 N.E.2d 577 (N.Y.1978).
287 Doe, 2000 N.Y. App. Div. 7147, at *1-2.
288 People v. Gokey, 457 N.E.2d 723, 724 (N.Y. 1983).
289 Doe, 2000 N.Y. App. Div. 7147, at *2.
290 Gokey, 60 N.Y.2d at 311.
291 523 N.Y.S.2d 187 (App. Div. 3d Dep’t 1987).

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was in the lobby of the facility at approximately 7:00 pm.292 The

building had a sign-in procedure for visitors coming to the building.293
An employee asked the defendant why he was in the building, to which
he responded that he was there to visit a friend.294 After the employee
reported the defendant’s presence to her supervisor, she returned to the
lobby, but the defendant was no longer there.295 Sometime later, the
supervisor found the defendant lying face down on the basement floor,
partially in the employee’s locker room.296
Upon seeing the supervisor, the defendant got up and entered
the locker room, so the supervisor called the police.297 When the police
arrived, they were notified by the dining room attendant that the
defendant had just left through the back door.298 The police found the
defendant outside and questioned him as to why he was there, to which
he responded that he was looking for the bathroom and showed the
police a social services card bearing his name and photograph.299 The
police asked him to return with them to the lobby, which he agreed to,
and he was identified by the original employee and the supervisor, the
latter of whom requested that the police arrest the defendant for
trespassing.300 The defendant was arrested and given Miranda
warnings.301 Then, the police requested identification from the
defendant, pointing to a wallet hanging out of the defendant’s jacket.302
The defendant stated that the wallet was not his.303 The police took the
wallet, opened it up, and found information that indicated the wallet
belonged to an employee of the facility.304
The defendant was indicted for burglary in the second degree,
grand larceny in the third degree, criminal possession of stolen
property in the second degree, and criminal possession of a weapon in

292 Id. at 188.

293 Id.
294 Id.
295 Id.
296 Jones, 523 N.Y.S.2d at 188.
297 Id.
298 Id.
299 Id.
300 Id.
301 Jones, 523 N.Y.S.2d at 188.
302 Id.
303 Id.
304 Id.

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the fourth degree.305 The defendant pled guilty to the burglary

charge.306
In justifying the arrest of the defendant, the Appellate Division,
Third Department, pointed to the following facts: (1) the facility where
the defendant was located had a strict sign-in policy; (2) the
defendant’s inconsistent answers with regard to his presence in the
building; (3) the defendant’s presence in the locker room, which was a
non-public area of the building; (4) the complaining witness’s
presumptively reliable statements to the police; and (5) the subsequent
identification.307 Because of these facts, the Appellate Division found
that the defendant’s arrest was supported by probable cause.308
As to the question of whether the wallet was properly seized,
the Appellate Division found that the defendant was arrested based on
reasonable cause.309 Based on the fact that the arrest was based on
reasonable cause, the Appellate Division found that the search of the
person was reasonable as well.310 The Appellate Division did not cite

305 Id.
306 Jones, 523 N.Y.S.2d at 188.
307 Id.
308 Id.
309 Id. Under New York law, “reasonable cause” and “probable cause” are terms of art

utilized in making a determination as to whether the police officer has enough information in
front of him or her to warrant an objective person in reasonably believing that a crime has been
committed, and thus the terms are used interchangeably on occasion by the courts, as was done
here. See id.; N.Y. CRIM. PROC. LAW § 70.10(2) (McKinney 2018) (“‘Reasonable cause to
believe that a person has committed an offense’ exists when evidence or information which
appears reliable discloses facts or circumstances which are collectively of such weight and
persuasiveness as to convince a person of ordinary intelligence, judgment and experience that
it is reasonably likely that such offense was committed and that such person committed it.”);
Id. § 140.10(1)(a) (“Subject to the provisions of subdivision two, a police officer may arrest a
person for: (a) Any offense when he or she has reasonable cause to believe that such person
has committed such offense in his or her presence.”); see also Beck v. Ohio, 379 U.S. 89, 91
(1964) (“Whether that arrest was constitutionally valid depends in turn upon whether, at the
moment the arrest was made, the officers had probable cause to make it—whether at that
moment the facts and circumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.”).
310 Jones, 523 N.Y.S.2d at 188.

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to Gokey, nor did it mention exigent circumstances. Rather, it cited to

People v. Marsh311 and New York v. Belton.312
The Appellate Division, Third Department’s analysis of the
search was flawed because it made no mention of the appropriate
standard under Gokey. While the wallet was technically an object
found on the person of the arrestee, the wallet, itself, was a container,
which meant that it was governed by Chimel, Gokey and their progeny.
In fact, the Appellate Division implicitly recognized that by citing to
Marsh and Belton.313 The problem is that both of those cases involved
the search incident to an arrest exception with regard to vehicles,
whereas this case dealt with an on-the-street encounter that had a
search incident to arrest of a container, a wallet. Therefore, Gokey was
the controlling, on-point case law. As such, the police needed to have
exigent circumstances at the time of the arrest to search the defendant’s
person.
In Jones, the defendant was arrested for trespassing in a private
building, but the facts and circumstances of the case would not lead a
police officer to reasonably believe that the defendant possessed a
weapon that could hurt the officers. Moreover, the wallet was in the
possession of the arrestee, but the arrestee himself had been reduced to
the exclusive control of the police after his arrest. As a result, there
could have been no reasonable belief on the part of the officers to
believe that the defendant would have been able to conceal the wallet
that the officers had directly pointed out to the defendant prior to the
search. However, the Appellate Division found the opposite:
regardless of exigent circumstances, the search was valid.314
Seemingly, this search would have been suppressed under Gokey.

311 228 N.E.2d 783, 785 (N.Y. 1967) (holding that the legislature of New York would not
have intended the search incident arrest exception to the warrant requirement to extend to
arrests made specifically for traffic violations where Vehicle Traffic Law § 155 provides that
“[a] traffic infraction is not a crime and the punishment imposed therefor shall not be deemed
for any purpose penal or criminal punishment and shall not affect or impair the credibility as
a witness or otherwise of any person convicted thereof.”).
312 453 U.S. 454 (1981) (holding that the police may conduct a search incident to arrest of

the passenger compartment an arrestee’s vehicle, based on inherent exigencies of road-side

encounters).
313 Jones, 523 N.Y.S.2d at 188-89.
314 Id. at 188.

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4. People v. Watkins, People v. Baker, and

People v. Thompson

In People v. Watkins,315 the Appellate Division, First

Department, held that a search incident to arrest of a defendant’s bag
was proper because the search had been done close in time and location
to the arrest where the defendant had been handcuffed, the bag had not
been reduced to the exclusive control of the police, and exigent
circumstances were “readily inferable” from the officer’s testimony.316
The problem is that the court found that the circumstances were
“readily inferable” more than 15 years before the court in Jimenez
reasoned that an officer need not affirmatively testify to his belief.317
Seemingly, Watkins is analogous to Jimenez in that the bags had not
been reduced to the exclusive control of the police and that the exigent
circumstances were “readily inferable.” Unlike Watkins however,
Jimenez was not handcuffed at the time of her search. Be that as it
may, the two cases have inconsistent results.
In People v. Baker,318 the Appellate Division, First Department,
unanimously affirmed a trial court’s ruling to deny a motion to
suppress, basing its conclusion on the fact that the drugs contained in
the bag found during a search that had been conducted right after an
arrest had been made.319 The court in Baker made no mention in its
opinion about the existence of exigent circumstances, nor did it speak
to whether the container was within the exclusive control of the police.
In People v. Thompson,320 the Appellate Division, First
Department, unanimously found that the search of a cigarette box had
been done immediately after the defendant had been arrested, and that
“the record” revealed the existence of exigent circumstances.321 The
court in Thompson gave no indication about how the record established
exigency.

315 682 N.Y.S.2d 40 (App. Div. 1st Dept. 1998), leave to appeal denied, 710 N.E.2d 1105

(N.Y. 1999).
316 Id.
317 Cf. People v. Thompson, 988 N.Y.S.2d 209 (App. Div. 2d Dep’t 2014) (holding that

evidence should be suppressed when an officer did not testify to his reasonable belief and the
facts did not support such a belief).
318 679 N.Y.S.2d 107 (App. Div. 1st Dep’t 1998), leave to appeal denied, 708 N.E.2d 182

(N.Y. 1999).
319 Id.
320 703 N.Y.S.2d 148 (App. Div. 1st Dep’t), leave to appeal denied, 733 N.E.2d 245 (N.Y.

2000).
321 Id.

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5. Summary of Loose Interpretation Case

A common theme in most of these cases is that all of them cite

to Smith or Wylie for the authority to justify the search, and none of
them cite to Gokey.322 Under a Smith or Wylie approach, it would seem
that the police are given more deference in their actions at the time of
the arrest. However, these cases conflict with Gokey because they tend
to find exigent circumstances more easily than cases that apply Gokey
strictly.

V. CONCLUSION

The inconsistencies, both found in cases where evidence has

been suppressed and cases where it has not, have proven to create
significant Fourth Amendment jurisprudence flaws within New York.
Where the Courts of New York have inconsistently applied the Gokey
rule, the Court of Appeals should review these cases to address these
inconsistences and correct them. Alas, given that Jimenez was the
most recent Court of Appeals decision on the issue of searches incident
to arrest of containers found within the controllable area of an arrestee,
it is unlikely that change is on the horizon. Borrowing the words of
Judge Gabrielli in his People v. Belton323 concurrence, “[t]he majority,
by its decision to reject the theoretical underpinnings of the Supreme
Court’s holding in this case, leaves the citizens and law enforcement
officials of New York in a state of continued confusion.”324
As a policy consideration, the proper course for the New York
courts would be to adopt a precedent of uniformity with regard to the
current Fourth Amendment jurisprudence because both article I,
section 12, of the New York Constitution and the Fourth Amendment
of the United States Constitution share identical language. Indeed, the
Court of Appeals has addressed the need for uniformity with the
Supreme Court in the past with regard to Fourth Amendment cases.325
In line with the Court of Appeals language in Ponder, the Court of
Appeals should follow the rules created in Chimel and Robinson, with
regard to searches incident to arrest, and eschew the rule created by
Gokey.

322 See People v. Watkins, 682 N.Y.S.2d 40, 1998 N.Y. App. Div. LEXIS 13778, at *1 (1st

Dept. 1998); Baker, 679 N.Y.S.2d at 107; Thompson, 711 N.Y.S.2d at 173.
323 432 N.E.2d 745 (N.Y. 1982) (Belton II).
324 Id. at 749 (Gabrielli, J., concurring).
325 People v. Ponder, 429 N.E.2d 735, 737 (N.Y. 1981).

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Continuance with Gokey creates confusion in the realm of

search and seizure jurisprudence for New York law enforcement
officials dealing with on-the-street encounters. While a defendant
being handcuffed is strong evidence that he will not be able to get into
a container that he possesses,326 the police may still search his
container.327 As mentioned in Smith, if the bag is too tightly attached
to defendant so as to prevent him from “quickly” reaching it, the
evidence collected therefrom can be suppressed.328 Worst of all is that
the Court of Appeals understands that these searches, if reviewed in a
federal court, would be sustained.329
In her Jimenez dissent, the late Judge Sheila Abdus-Salaam
criticized the Court of Appeals for supplanting its reasonable
inferences of the case for the reasonable inferences that had been found
by both Justice Clark at the Supreme Court level and the Appellate
Division, First Department.330 She wrote:
This is not an instance where, even accepting the
entirety of the hearing court’s factual findings, none of
the inferences that reasonably may be drawn from [the]
settled facts can support the conclusion that [the search]
was lawful. Rather, the facts do support the inferences
reached by the lower courts, although other inferences
could also be reached, as demonstrated by the
conclusions drawn by the majority. For example, the
majority notes that the police need not affirmatively
testify that they were concerned about their safety, but
that the apprehension of the police must be objectively
reasonable. In concluding that there was nothing
connecting defendant or her companion to the burglary,
the majority downplays the uncontroverted testimony
that when the police officers first entered the lobby,
they were directed to defendant by the gestures of the
superintendent, who motioned to the police to stop
defendant and her companion.331

326 See People v. Rosado, 625 N.Y.S.2d 162, 163 (App. Div. 1st Dep’t 1995).
327 See People v. Smith, 452 N.E.2d 1224, 1227 (N.Y. 1983).
328 Id.
329 People v. Gokey, 457 N.E.2d 723, 724 (N.Y. 1983).
330 People v. Jimenez, 8 N.E.3d 831, 837-38 (Abdus-Salaam, J., dissenting).
331 Id. (alteration in original) (citations and internal quotations marks omitted).

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The main issue with the opinion in Jimenez is the flagrant

disregard of the inferences drawn by both the trial court and the
Appellate Division, both of which utilized the Gokey opinion in their
rationales but came to opposite conclusions from the Court of Appeals.
In addition, the precedent of a “divide-and-conquer” analysis will only
allow judges who have personal disagreements with the case to find a
way to impose their personal beliefs rather than the rule of law and
facts in making determinations. Judicial activism, on this level,
presents issues in Fourth Amendment jurisprudence for law
enforcement officials, the likes of which the officials will not be
apprised at the time that they do their job, and only realized years later.
Ten years ago, in People v. Hall,332 Judge Ciparick
distinguished body cavity searches from the traditional search incident
to arrest rationale, stating that the latter searches “are permitted
because they represent de minimis intrusions when compared with the
loss of liberty occasioned by the arrest that preceded them.”333 The
Appellate Division, Second Department, once stated that a seizure of
a defendant’s bag was justified, where it was located ten feet away
from him at the time of the arrest, because “the seizure . . . did not
invade his expectation any more than the arrest itself.”334 That same
court found that the search of the same bag was justified because the
search was “not significantly divorced in time or place from the arrest”;
no exigent circumstances were mentioned.335 Thus, it is apparent that
New York recognizes the de minimis intrusion rationale as a legitimate
basis for eschewing a suspect’s reasonable expectation of privacy in
containers; however, it would seem that the rationale is inconsistently
applied.
Robinson presents the clear, straightforward answer to searches
incident to arrest. If Robinson is unavailable, however, then Smith
should govern rather than Gokey. But, because of the questions Gokey
left unanswered, New York courts have been left to fill in the blanks,
coming to conclusions that leave similarly situated defendants in
completely different places within the law. In 1981, the Supreme
Court stated:

332 886 N.E.2d 162 (N.Y. 2008).

333 Id. at 174 (Ciparick, J., concurring).
334 People v. Thomas, 738 N.Y.S.2d 357, 358 (App. Div. 2d Dep’t 2002).
335 Id.

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Fourth Amendment doctrine . . . is primarily intended

to regulate the police in their day-to-day activities and
thus ought to be expressed in terms that are readily
applicable . . . . A highly sophisticated set of rules,
qualified by all sorts of ifs, ands, and buts and requiring
the drawing of subtle nuances and hairline distinctions,
may be the sort of heady stuff upon which the facile
minds of lawyers and judges eagerly feed, but they may
be literally impossible of application by the officer in
the field.336
No one could have said it better.

336 New York v. Belton, 453 U.S. 454, 458 (1981) (internal quotation marks omitted).

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