by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense
When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search. If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search. If this may be an issue, be really strategic in planning your questions and cross. Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.
In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.
"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.
On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"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."