This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 40
In the Matter of Kenneth S., &c.,
            Appellant.




          Raymond E. Rogers, for appellant.
          Ronald E. Sternberg, for respondent Presentment Agency.




MEMORANDUM:
          The order of the Appellate Division should be affirmed,
without costs.
          The initial detention of appellant was lawful on the
basis of the police officer's authority to detain a suspected
truant (see Matter of Shannon B., 70 NY2d 458, 462 [1987]).

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Appellant relies on People v Reid (24 NY3d 615 [2014]), but that
decision, which analyzed a search incident to lawful arrest with
reference to the timing of an officer's intent to arrest, does
not apply to the legality of the detention here.   Whether the
officer who detained appellant intended to transport him to the
precinct or to a Department of Education facility is not relevant
to the lawfulness of the initial detention.   Therefore, we need
not decide whether it would have been lawful for the police
officers to take appellant to the precinct as a truant.
          After the initial detention, appellant's bag produced a
distinctive noise when it came into contact with the police
vehicle, which one of the officers recognized as the sound a gun
makes when it strikes a motor vehicle (see generally Matter of
Gregory M., 82 NY2d 588, 591 [1993]).   Appellant gave evasive
answers when asked what had caused the sound.   The officers, who
knew that appellant had previously been arrested for robbery,
asked appellant to remove the backpack.   Appellant complied, but
he appeared nervous after he gave up his bag.   Upon taking
possession of the backpack, one of the officers felt what seemed
to be a gun in an exterior pocket.
          Under these circumstances, even assuming that this
amounted to an investigative touching, there is a view of the
evidence supporting the Appellate Division's determination that
the officers had a reasonable suspicion that appellant was armed.
          When the touching revealed the shape of a gun in the


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bag, appellant was arrested.      Appellant became agitated and
upset, and resisted being handcuffed, such that two officers were
required to handcuff him.     Notably, the officers knew that on the
occasion of appellant's prior arrest he had started to walk away
while being handcuffed.    By this time, a crowd had gathered,
yelling at the officers, who placed appellant in their police
vehicle.    Once in the vehicle, one of the officers opened and
searched the backpack.    He found what was later confirmed to be
an air pistol.    Significantly, the unmarked police vehicle had no
partition, and the officer who searched the bag was seated next
to appellant on the back seat.
            In these circumstances, there is record support for the
conclusion that the officers reasonably believed that appellant
might gain possession of a weapon, so that exigent circumstances
-- a legitimate concern about the safety of the arresting
officers -- justified the warrantless search of appellant's
backpack.
*   *   *     *   *   *   *   *     *     *   *   *   *   *   *   *   *
Order affirmed, without costs, in a memorandum. Chief Judge
DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and
Garcia concur.

Decided March 24, 2016




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