
    The People of the State of New York, Respondent, v Roger Belton, Appellant.
    Argued April 21, 1980;
    decided June 5, 1980
    
      POINTS OF COUNSEL
    
      Paul J. Cambria, Jr., and Barbara Davies Eberl for appellant.
    The warrantless search of appellant’s zippered jacket in the absence of exigent circumstances while it was within the exclusive control of the police, and the seizure of contraband from its recesses violates the Fourth and Fourteenth Amendments and requires that the evidence be suppressed and the indictment dismissed. (Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1; Coolidge v New Hampshire, 403 US 443; People v De Santis, 46 NY2d 82; People v 
      
      Perel, 34 NY2d 462; People v Cofield, 55 AD2d 113, 43 NY2d 654; United States v Johnson, 588 F2d 147; United States v Schleis, 582 F2d 1166; Chimel v California, 395 US 752; United States v Stevie, 582 F2d 1175.)
    
      James R. Harvey, District Attorney (R. Michael Tantillo of counsel), for respondent.
    The warrantless search of the vehicle and of appellant’s jacket therein was not violative of the Fourth and Fourteenth Amendments in that the search was properly incident to a lawful arrest. (Chimel v California, 395 US 752; United States v Robinson, 414 US 218; People v Weintraub, 35 NY2d 351; People v De Santis, 46 NY2d 82; United States v Chadwick, 433 US 1; United States v Garcia, 605 F2d 349; People v Cofield, 55 AD2d 113, 43 NY2d 654; Arkansas v Sanders, 442 US 753; Chambers v Maroney, 399 US 42; Carroll v United States, 267 US 132.)
   OPINION OF THE COURT

Chief Judge Cooke.

A warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.

On April 9, 1978, defendant and three companions were traveling on the New York State Thruway in Ontario County when their car was stopped by a State trooper for speeding. Upon approaching the vehicle, the officer smelled the distinct odor of marihuana emanating from within and observed on the floor an envelope which he recognized as a type that is commonly used to sell the substance. At that point the officer ordered the occupants out of the vehicle, patted each down, removed the envelope from the floor and ascertained that it contained a small amount of marihuana.

After the marihuana was found, the individuals, still standing outside the car, were placed under arrest. The officer then re-entered the vehicle, searched the passenger compartment and seized the marihuana cigarette butts lying in the ashtrays. He also rifled through the pockets of five jackets on the back seat. Upon opening the zippered pocket of one of them, he discovered a small amount of cocaine and defendant’s identification.

Following denial of his motion to suppress the cocaine, defendant pleaded guilty to attempted possession of a criminal substance in the sixth degree. A unanimous Appellate Division affirmed, holding the warrantless search of the jacket lawful as incident to defendant’s arrest for possession of marihuana (68 AD2d 198). There should be a reversal.

Analysis begins with the general proposition that, except in a few narrowly circumscribed instances, the Fourth Amendment condemns warrantless searches and seizures as unreasonable (Coolidge v New Hampshire, 403 US 443, 455). The privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field. Reasonableness of the intrusion does not turn upon the belief, however well founded it may be, that the article sought is concealed in a particular place. The Constitution, therefore, focuses upon the desirability of having the judiciary, rather than the police, determine when searches and seizures are permissible and the limitations that are to be placed upon such activities. Necessarily, then, the predicate for the warrantless search must be carefully examined to ensure that its scope, both temporally and geographically, did not exceed constitutional limits.

The People maintain that the warrantless search of defendant’s jacket was reasonable on the ground that it was incident to his lawful arrest. A custodial arrest of a suspect based upon probable cause without a warrant in a public place constitutes a reasonable intrusion under the Fourth Amendment (United States v Watson, 423 US 411). That arrest being a lawful and substantial intrusion, any search incident thereto requires no additional justification (People v Perel, 34 NY2d 462; see, also, People v Weintraub, 35 NY2d 351).

When a suspect is placed under custodial arrest, there is always present the danger that he may seek to use a weapon to effect an escape or destroy or conceal evidence of a crime. Thus, to safeguard himself and others, and to prevent the loss of critical evidence, it is reasonable from a Fourth Amendment perspective for the arresting officer to conduct a prompt, warrantless "search of the arrestee’s person and the area 'within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence” (Chimel v California, 395 US 752, 763). Upon arrest, the privacy interest of the arrestee in possessions within the arrestee’s immediate control are subsumed within the State’s interest in discovering weapons, thwarting access to means of escape and preventing the destruction of evidence (see United States v Robinson, 414 US 218). But while the arrest establishes the authority for the warrantless search, it does not transform the initial predicate into carte blanche justification to rummage through all articles which might bear some connection to the arrestee (see Dyke v Taylor Implement Co., 391 US 216; People v Williams, 37 NY2d 206; People v Lewis, 26 NY2d 547).

The privacy interest of the arrestee in an object remains intact once he is effectively neutralized or the object is within the exclusive control of the police (see Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1). At that point, any exigency which would otherwise have justified a warrantless search has been dissipated and the search is no longer an incident to the arrest (but cf. People v De Santis, 46 NY2d 82; People v Darden, 34 NY2d 177). The critical inquiry focuses upon the extent to which the arrestee may gain access to the property rather than the time or space between the arrest and search (see United States v Edwards, 415 US 800).

In this regard, United States v Chadwick (433 US 1, supra) is instructive. There, railroad officials in San Diego observed two individuals loading a heavy footlocker onto a train bound for Boston. Their suspicions were aroused when the trunk leaked talcum powder, a substance commonly used to mask the odor of marihuana. The officials notified Federal agents who relayed the information to their counterparts in Boston. When the train arrived in that city, the two individuals who had loaded the footlocker in San Diego were on hand and lifted it into the trunk of Chadwick’s waiting car. At that point, Federal agents arrested all three, seized the footlocker and transported them to the Federal building. There, with the arrestees safely incarcerated, the agents opened the trunk and seized a large quantity of marihuana. In holding the search unlawful, the court rejected the notion that it was incidental to Chadwick’s arrest. Said the court: "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest” (433 US, at p 15; see, also, Arkansas v Sanders, 442 US 753, supra).

That defendant retained an expectation of privacy in the contents of his jacket pockets notwithstanding the fact of his arrest is beyond dispute. Indeed, it is difficult to imagine a more private receptacle where one might place one’s most personal items than the zippered recesses of a jacket. Defendant’s arrest, standing alone, did not vitiate that privacy interest by being converted into a license for law enforcement authorities to engage in a warrantless search of unlimited temporal and geographic scope. Once defendant had been removed from the automobile and placed under arrest, a search of the interiors of a private receptacle safely within the exclusive custody and control of the police may not be upheld as incident to his arrest (United States v Chadwick, 433 US 1, supra; Arkansas v Sanders, 442 US 753, supra). The car was in a secure place where it could have been easily guarded, its occupants under arrest and safely away from the vehicle, their removal to the police station imminent. There was, therefore, no reason why the search should not have awaited the issuance of a warrant.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.

Gabrielli, J.

(dissenting). I respectfully dissent. Although I am in agreement with the standard legal principles enunciated by the majority, I cannot concur in what appears to be an obvious misapplication of those principles to the facts of this case.

A warrantless search based on probable cause is permissible if the facts underlying the search bring it within any of several narrow exceptions to the warrant requirement with which this court is fully familiar. One such exception to the warrant requirement is a search incident to a lawful arrest. Although this particular exception has had a somewhat uncertain history (compare Trupiano v United States, 334 US 699, with United States v Rabinowitz, 339 US 56), it is now well settled and cannot be disputed that a police officer making a valid arrest may legitimately engage in a limited search of both the person of the arrestee and "the area from within which he might gain possession of a weapon or destructible evidence” (Chimel v California, 395 US 752, 763) without first obtaining a search warrant. Moreover, although the general rationale for permitting warrantless searches under certain circumstances is the need to allow a police officer sufficient flexibility to protect himself from possible danger and to prevent the destruction of evidence (see, generally, Arkansas v Sanders, 442 US 753, 759), a warrantless search incident to a lawful arrest may be made "whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence” (United States v Chadwick, 433 US 1, 14).

To be sure, such a search is subject, as it should be, to careful judicial scrutiny before its fruits may be admitted into evidence. As the Supreme Court has recently stated, "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest’ * * * or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest” (United States v Chadwick, supra, at p 15). While these principles are readily articulated, their application to individual cases may seem, at first blush, to be a task of some complexity. This is so in large part because each case must turn upon its peculiar facts and "an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights” (Arkansas v Sanders, 442 US 753, 757, supra). This observation is particularly apt when applied to a case such as this, in which all members of the court are agreed that the validity of the challenged search turns upon the degree to which the defendant and his property had come within the exclusive control of the police at the time of the search. Clearly, we are here presented with a valid arrest based upon probable cause. This is, as it must be, conceded by all. Moreover, there exists no dispute but that the officer’s search of the persons of the defendant and his companions and the initial search of the car for contraband were entirely proper. The only issue that divides this court, then, is whether the officer acted illegally by extending his search to include the pockets of the jackets thrown on the back seat of the automobile. The courts below, which by law, unlike this court, are empowered to resolve disputes of fact, have concluded that the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer. I find no justification for disturbing this essentially factual determination and, based upon this finding, the conclusion that the search was incidental to a lawful arrest cannot be avoided.

Certainly there exists sufficient evidence in the record before us to support the factual findings made by the courts below. Indeed, this case is illustrative of the type of situation in which a warrantless search is most appropriate. We are not here faced with an extended search of a defendant’s property after the defendant has been completely subdued and all actual danger has passed. Rather, this search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters or radioing for assistance. The situation was still fluid, and neither the suspects themselves nor their property had as yet been reduced to the exclusive and certain control of the police. I cannot agree that under these circumstances the officer acted improperly in searching the jackets found on the back seat of the automobile. The potential for danger to the officer or for the destruction of evidence is patent, and thus the search must be deemed incidental to the arrest.

I must confess that I am somewhat puzzled by the rationale adopted by the majority of this court today, for it appears rather ingenuous. Instead of undertaking that careful factual analysis of the realities underlying the continuing encounter between the lone officer and the four suspects which is so necessary to fairly judge the reasonableness of the officer’s actions, the court premises its decision completely upon an uncertain assumption drawn from two isolated facts. Apparently the majority believes that since the suspects were standing outside the car at the time of the search and had been told that they were under arrest, both their persons and their property had thereby been conclusively and safely reduced to the complete control of the officer, as a matter of law. Although one might well wish that all criminal suspects could so readily be subdued as a matter of law, I cannot agree with a decision that requires a police officer to stake his very life upon the validity of such a questionable presumption.

Accordingly, I vote to affirm the order appealed from.

Judges Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc. 
      
      . To the extent that these cases may be read to suggest otherwise, they are disapproved.
     
      
      . One searches the record in vain.for support of the dissenter’s claim that at the time of arrest — the point from which the predicate for the warrantless search is measured — "the jackets were within reach of the four suspects and had not yet been reduced to the exclusive control of the officer” (dissenting opn, p 454). Indeed, the facts, as found at the suppression hearing and affirmed by the Appellate Division, were to the effect that the jacket was searched after the defendant was removed from the vehicle and then placed under arrest.
     