Defendant was seen tossing a green beer bottle and officers attempted to step in front of him to stop him to inquire into the littering. Instead of talking to them, he pushed past them, and that made them concerned he might be armed. That justified a frisk. The court discusses general disapproval of “bootstrapping” a minor offense into a search incident and finds the government met its burden here. United States v. Davis, 2015 U.S. Dist. LEXIS 86169 (E.D.N.Y. July 1, 2015):
Here, because the firearm was recovered prior to Defendant’s arrest, an additional wrinkle applies to the traditional search incident to arrest doctrine. The government cites Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), for the proposition that the fact “that the firearm appears to have been recovered a few moments before the defendant was placed in handcuffs does not alter this analysis.” (Opp’n Mem. 11.) The Court in Rawlings held that a search of the defendant’s person, which uncovered money and a knife, was lawful despite the fact that it occurred shortly before the defendant’s arrest. Rawlings, 448 U.S. at 110-11. At the point of the search, the defendant had already “admitted ownership of the sizeable quantity of drugs found in [his companion’s] purse” and the Court found that the police “clearly had probable cause to place [the defendant] under arrest,” which arrest “followed quickly on the heels of the challenged search.” Id. at 111. Defendant argues that “[t]he government cannot rely on an after-the-fact retooling of what actually occurred to render an unwarranted stop and search into an arrest based on probable cause.” (Reply Mem. 5.) At oral argument after the suppression hearing, Defendant argued that the police officers were likely stopping and speaking with each individual they encountered, waiting to see if they found something that would lead to an arrest. (Tr. 81:10-25.)
A search incident to arrest need not necessarily occur after formal arrest to be valid, but the argument that the search was incident to arrest becomes more strained when the facts show that a defendant would not have been arrested but for the fact that the search produced evidence of a crime, that is, a firearm.7 A search incident to arrest is not unlawful simply because it preceded formal arrest. See Rawlings, 448 U.S. at 111; United States v. Wilson, 94 F. App’x 14, 17 (2d Cir. 2004) (“Once probable cause was established, it is irrelevant whether the officers’ searches of [the defendant] occurred prior or subsequent to his arrest.” (citing United States v. Ricard, 563 F.2d 45, 49 (2d Cir. 1977)). Similarly, it is not categorically problematic that the defendant was ultimately arrested for something other than the conduct which created probable cause. See Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004). However, some courts have recently noted that a search incident to arrest becomes problematic when, but-for the search, there would have been no arrest. See People v. Reid, 24 N.Y.3d 615, 619, 26 N.E.3d 237 (2014) (“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.”) (citations omitted); People v. Mangum, 125 A.D.3d 401, 3 N.Y.S.3d 332, 334 (App. Div. 2015) (“The intent to arrest for the offense justifying the search must be present even if a defendant is ultimately arrested for a difference offense.”); see also Knowles v. Iowa, 525 U.S. 113, 119, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998) (determining search incident to arrest was not valid when police officer issued a traffic citation, searched defendant’s car, and then arrested defendant based on what was found in the car, because neither of the rationales underlying the search incident to arrest exception were satisfied).
7. Bootstrapping evidence found in a search “incident to arrest” — based on probable cause for only a minor violation that would otherwise not result in an arrest — so that the fruits of a search incident to arrest themselves provide the justification for the arrest, is not permissible. See Smith v. Ohio, 494 U.S. 541, 543, 110 S. Ct. 1288, 108 L. Ed. 2d 464 (1990) (“[I]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.”) (internal quotation marks and citation omitted); United States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986) (“To be sure, care must be taken to avoid bootstrapping that allows the fruits of a search incident to an arrest to provide the basis for the arrest.”); United States v. Friedman, No. 95-CR-192, 1996 U.S. Dist. LEXIS 22787, 1996 WL 612456, at *15 (E.D.N.Y. June 25, 1996) (finding that case in which three men arrested for possession of firearms after being stopped for traffic violations, who were only arrested following a search of the car and discovery of the firearms, “presents a danger of ‘bootstrapping’ that is not present in cases such as Donaldson”) aff’d in part, rev’d in part, 300 F.3d 111 (2d Cir. 2002) and aff’d, 43 F. App’x 424 (2d Cir. 2002). Construing the doctrine so broadly would encourage police officers to use any minor violation as a pretext to conduct a warrantless search of a defendant’s person any time they observe such a violation, running the risk that the search incident to arrest doctrine becomes untethered from the original justifications announced by the Supreme Court in Chimel. See People v. Reid, 24 N.Y.3d 615, 619-20, 26 N.E.3d 237 (2014) (holding that though probable cause to arrest for driving while intoxicated was present, search incident to arrest was not valid because “the search caused the arrest and not the other way around”); People v. Mangum, 125 A.D.3d 401, 3 N.Y.S.3d 332, 334-35 (App. Div. 2015) (holding that although the officers had probable cause to arrest defendant for littering, search of defendant’s backpack which revealed a firearm was not a lawful search incident to arrest when it was clear officers were not going to arrest defendant until weapon was found); see also Donaldson, 793 F.2d at 503 (noting that the bootstrapping problem does not arise when the defendant’s “criminal knowledge and intent were plain, and the agents were well aware of [the] crime” prior to the search); cf. United States v. Gandia, 424 F.3d 255, 262 (2d Cir. 2005) (noting that extending the “protective sweep” doctrine, permitting police officers to conduct a warrantless “sweep” of a defendant’s home under certain circumstances, to instances where officers have gained access to a home through consent, may “enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home”).
In this case, Defendant was ultimately arrested for possession of the firearm and for the open container violation. While his arrest, and the searches incident thereto which recovered the firearm and the magazine, were based on probable cause for the littering offense, as discussed infra the Court finds that the concerns of “bootstrapping” are not present here.
In this case, the facts support a finding that the officers intended, at least, to stop Defendant in order to investigate the open container violation and littering, regardless of whether any contraband or evidence was discovered during the search. Fink had stepped in front of Defendant to question him about the bottle when Defendant pushed into or walked past Fink, making contact with him, and both Fink and Baldofsky quickly determined that Defendant might be armed. Given the rapidly unfolding interaction with Defendant, and the fact that — as discussed below — the limited search of Defendant’s waistband area was justified by reasonable suspicion and the need to protect officer safety, the firearm was not unlawfully recovered from Defendant. Moreover, once the police officers did discover the firearm, they had additional probable cause to arrest Defendant, justifying the search of his person which led to the discovery of the ammunition in his pocket. See Vargas, 369 F.3d at 102 (affirming denial of motion to suppress firearm found on defendant’s person, noting “at the point of finding the gun, the police certainly had probable cause to arrest him”); United States v. Galan, No. 14-CR-450, 2015 U.S. Dist. LEXIS 46815, 2015 WL 1602151, at *7 (E.D.N.Y. Apr. 9, 2015) (noting that once police officers found gun defendant had hid in tire of parked vehicle, “the officers clearly had probable cause to arrest [defendant],” justifying search of his pockets). Thus, the search at issue in this action is still tethered to the concerns for officer safety underlying the search incident to arrest doctrine, see Riley, 573 U.S. at __, 134 S. Ct. at 2485, and was reasonable within the terms of the Fourth Amendment.
