This opinion is uncorrected and subject to revision before
publication in the New York Reports.

No. 205
The People &c.,
             Respondent,
        v.
Graham Reid,
             Appellant.




          Antonio J. Perez-Marques, for appellant.
          Richard Nahas, for respondent.
          New York Civil Liberties Union, amicus curiae.




SMITH, J.:
          The issue here is whether a search of a driver by the
police officer who stopped his car was "incident" to the driver's


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arrest.   We hold that it was not, because the record shows that,
although probable cause to arrest the driver existed before the
search, the driver would not have been arrested if the search had
not produced evidence of a crime.
                                  I
            Officer Jacob Merino testified at a suppression hearing
that he followed the car defendant was driving while it crossed
double lines into a lane of oncoming traffic, swerved in and out
of its lane without signaling, and made a right turn without
signaling.    Merino stopped the car and approached it.   He saw
that defendant's eyes were "very watery" and his clothing was
disheveled.    There were plastic cups in the car's center console,
and the officer detected an odor of alcohol.    Merino asked
defendant if he had been drinking, and received an odd answer:
defendant said he had a beer after getting off work at 4:00 PM --
though his conversation with the officer took place at 5:00 in
the morning.    It is not disputed that the officer's observations
gave him probable cause to arrest defendant for driving while
intoxicated (though, as it later turned out, defendant's blood
alcohol level was zero).
            Merino asked defendant to step out of the car and
patted him down.    In the course of doing so, he found a
switchblade knife in defendant's pocket.    Defendant was then
arrested.
            In response to questions by the court, Merino gave the


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following testimony, referring to the moment when he asked
defendant to get out of the car:
          "THE COURT:   At that point, were you going to
          arrest him?
          "THE WITNESS:   No.
          "THE COURT:   You weren't?
          "THE WITNESS:   No."
                                  ***
          "THE COURT: So it's only because you
          ultimately found the switchblade that you
          arrested him?
          "THE WITNESS:   Yes, ma'am."
          Defendant's motion to suppress the knife was denied on
the ground that the pat-down was "justified as a search incident
to arrest," and defendant pleaded guilty to criminal possession
of a weapon.   The Appellate Division affirmed, holding that so
long as probable cause to arrest defendant for driving while
intoxicated existed, it was irrelevant whether Merino
subjectively intended to make such an arrest (People v Reid, 104
AD3d 58 [1st Dept 2013]).   A Judge of this Court granted leave to
appeal (21 NY3d 1008 [2013]), and we now reverse.
                                  II
          The People make no claim that the pat-down in this case
was justified either by reasonable suspicion that defendant
presented a danger to the officer or by probable cause to believe
contraband would be discovered.    The only justification the
People offer for the search is that it was incident to a lawful


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arrest, and exempt for that reason from the general rule that
searches require a warrant (see United States v Robinson, 414 US
218 [1973]).   We reject the People's argument.
          It is not disputed that, before conducting the search,
Merino could lawfully have arrested defendant for driving while
intoxicated.   And it is clear that the search was not unlawful
solely because it preceded the arrest, since the two events were
substantially contemporaneous (see Rawlings v Kentucky, 448 US
98, 111 [1980] ["Where the formal arrest followed quickly on the
heels of the challenged search . . ., we do not believe it
particularly important that the search preceded the arrest rather
than vice versa"]; People Evans, 43 NY2d 160, 166 [1977] ["The
fact that the search precedes the formal arrest is irrelevant as
long as the search and arrest are nearly simultaneous so as to
constitute one event"]).   Nor is it decisive that the police
chose to predicate the arrest on the possession of a weapon,
rather than on driving while intoxicated (see Devenpeck v Alford,
543 US 146 [2004]).   The problem is that, as Merino testified,
but for the search there would have been no arrest at all.
          Where that is true, to say that the search was incident
to the arrest does not make sense.     It is irrelevant that,
because probable cause existed, there could have been an arrest
without a search.   A search must be incident to an actual arrest,
not just to probable cause that might have led to an arrest, but
did not (People v Evans, 43 NY2d 160, 165 [1977]; People v Erwin,


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                                - 5 -                        No. 205

42 NY2d 1064, 1065 [1977]).
          Knowles v Iowa (525 US 113 [1998]) is controlling here.
In that case, an officer stopped the defendant for speeding, and
had probable cause to arrest him under Iowa law, but chose to
issue him a citation instead.   The officer then searched the car,
found marijuana and arrested the defendant.   A unanimous Supreme
Court held the search inconsistent with the Fourth Amendment.     As
the Court explained, the rationales justifying the "incident to
arrest" exception to the warrant requirement are officer safety
and the preservation of evidence; neither of these provides a
sufficient reason for upholding a search where no arrest is made
(id. at 116-118).   The incident to arrest exception is a
"bright-line rule" that does not depend on whether there is a
threat of harm to the officer or destruction of evidence in a
particular case (id. at 118; Robinson, 414 US at 235) -- but the
rule is inapplicable to cases that fall, as does this one,
outside the bright line.
          The Appellate Division erred in extending the logic of
Whren v United States (517 US 806 [1996]), People v Robinson (97
NY2d 341 [2001]) and Devenpeck (543 US 146) to the present case.
These cases hold that a stop or arrest is valid where it is
supported by the necessary level of suspicion or probable cause,
whatever the actual motive for the officer's action.   But the
"search incident to arrest" doctrine, by its nature, requires
proof that, at the time of the search, an arrest has already


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occurred or is about to occur.    Where no arrest has yet taken
place, the officer must have intended to make one if the "search
incident" exception is to be applied.
          If a search could be justified by an arrest that, but
for the search, would never have taken place, the Supreme Court
would not have decided Knowles in the way it did.    In Knowles as
in this case, there was probable cause to make an arrest, and
there was a search, followed immediately by an arrest.    The
problem, in Knowles as here, was that the search caused the
arrest and not the other way around.     In Knowles, this fact was
proved by the officer's choice, before conducting the search, not
to arrest defendant for speeding but to issue him a citation.
Here, Officer Merino made a similar choice not to arrest
defendant for drunken driving, a fact proved by the officer's
testimony.
          Accordingly, the order of the Appellate Division should
be reversed, defendant's motion to suppress granted, and the
indictment dismissed.




                                 - 6 -
People of the State of New York v Graham Reid
No. 205




READ, J. (DISSENTING):
            I would affirm the Appellate Division's order.   As an
initial matter, I do not agree that Knowles v Iowa (525 US 113
[1998]) is "controlling here" (majority op at 4).     Just this past
spring the United States Supreme Court in Riley v California (134
S Ct 2473 [2014]) stated that it had refused to extend the rule
of United States v Robinson (414 US 218 [1973]) in Knowles
because issuance of a citation does not implicate the concerns
for officer safety and destruction or loss of evidence that
underlie the search incident doctrine (see Riley, 134 S Ct at
2485).    Under Iowa law at the time Knowles was decided, the
issuance of a citation in lieu of arrest did not affect the
police officer's authority to conduct an otherwise lawful search.
The Supreme Court was concerned that applying Robinson to cases
involving citations rather than arrests would "untether" the
search incident doctrine from its justifications (see id.).
            Unlike Knowles, this case does not involve a search
incident to issuance of a citation.     And while the arrest here
occurred after the search, as was the case in Knowles, the
Supreme Court in Rawlings v Kentucky (448 US 98, 111 [1980])


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indicated that "[w]here the formal arrest follow[s] quickly on
the heels of the challenged search," it is not "particularly
important that the search preceded the arrest rather than vice
versa."
          The majority principally grounds its decision to
reverse on the police officer's subjective intent -- i.e., the
police officer testified at the suppression hearing that he did
not intend to arrest defendant until he discovered the
switchblade in defendant's pocket.    But as the Appellate Division
recognized, the United States Supreme Court has consistently held
that an arresting officer's subjective intent, however
determined, offers no basis for negating an objectively valid
arrest (see 104 AD3d 58, 61-62 [1st Dept 2013], discussing
Devenpeck v Alford, 543 US 146, 125 S Ct 588, 160 L Ed 2d 537
[2004]; see also People v Robinson, 97 NY2d 341 [2001]).
          The majority now makes an exception to this long-
established rule, declaring that "[w]here no arrest has yet taken
place, the officer must have intended to make one if the 'search
incident' exception is to be applied" (majority op at 5).    I find
no basis for this exception in Supreme Court jurisprudence.
Again, the majority relies on Knowles.   But nothing in Knowles
itself or in the Court's subsequent discussion of Knowles in
Riley suggests that Knowles came out the way that it did because
the police officer did not subjectively intend to make an arrest
as evidenced by his issuance of a citation before the search.


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Moreover, interpreting Knowles in this way places it in tension
with Rawlings.   If a police officer's subjective motive for
making the arrest is critical, it should be the subject of
factfinding at any suppression hearing where the search occurred
prior to the formal arrest.    Yet, the Supreme Court in Rawlings
said that it was not "particularly important that the search
preceded the arrest rather than vice versa."
            There is good reason for the Supreme Court's preference
for categorical rules on the subject of a stop or arrest and
search incident to arrest -- i.e., "to provide clear guidance to
law enforcement" (Riley, 134 S Ct at 2491).        Otherwise, every
stop or arrest or search incident to arrest would inevitably
devolve into difficult-to-resolve disputes about motive or
whether a threat of harm to the police officer or risk of
destruction of evidence actually existed in the particular case.
The facts here are seemingly clear-cut (i.e., the police
officer's statements at the suppression hearing) and perhaps not
often repeated, which makes a departure from the categorical
rules a tempting prospect.    But a categorical rule no longer
serves its purpose if a court decides to ignore it in individual
cases where it seems less fair than particularized factfinding.
*   *   *    *   *   *   *    *    *      *   *   *   *   *   *     *   *
Order reversed, defendant's motion to suppress granted and
indictment dismissed. Opinion by Judge Smith. Chief Judge
Lippman and Judges Pigott and Rivera concur. Judge Read dissents
in an opinion. Judge Abdus-Salaam took no part.

Decided December 16, 2014

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