People v. Josefina Jiminez
AD1 order dated September 25, 2012, affirming judgment of conviction. Decision below: 98 AD3d 886, 950 NYS2d 700. Lippman, Ch.J., granted leave December 28, 2012.
Whether the warrantless search of the defendant’s shoulder bag was lawful as a search incident to arrest, where it had already been removed from her shoulder and she had already been handcuffed and frisked. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeal Bureau, 199 Water Street, NYC 10038.)
Issue before the Court: Whether the police officer’s warrantless search of the defendant’s handbag, which contained a handgun, was justified by exigent circumstances, where the defendant had been arrested for trespassing after the police responded to a radio run of a burglary taking place in the building.
Held: There was no exigency to justify the search of the closed handbag incident to arrest. Neither officer who testified at the hearing stated that he feared for his safety or for the integrity of any destructible evidence, nor would an apprehension of safety be objectively reasonable on this record. The mere fact of the burglary report did not “translate into an exigency” where, “[b]esides a common ethnicity, there was no evidence that [the defendant and her companion] matched the radio run of the burglary suspects.”
CAL Observes: By insisting on a genuine showing of exigency when the police intrude into a person’s closed bag or container, the four-judge majority (Judges Lippman, Graffeo, Smith, and Rivera) reaffirm that the incident-to-arrest warrant exception is just that — an exception. Exigency cannot be based on conjecture or hunch — or on profiling, as the reference in the decision to the “common ethnicity” of the defendant with the described burglars suggests was involved here.