New York Criminal Attorney Blog
In New York, if a person is formally arrested, they can be searched incident to that arrest. However, can the officer also search a person if the person could have been arrested but the officer decides to issue that person an appearance ticket on scene instead? The answer is “sometimes.” Generally, the police can search a person they issue an appearance ticket to. However, the New York courts have frowned on a blanket right to search where traffic infractions are involved.
The detention of a person for the purpose of issuing that person an appearance ticket amounts to an arrest situation. People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) see also People v. King, 102 A.D.2d 710 (1st Dept. 1984)(Where an “officer intends to issue an appearance ticket in lieu of a lawful arrest, he had the concomitant right to ‘pat down’ the defendant.”).
In Hazelwood, 104 Misc.2d 1121, the court held that the police could search a person they detained for the purpose of issuing that person an appearance ticket. Noting that the officer could have arrested the person and then searched the person incident to that arrest, the court observed: “to hold that a search is not permissible because an arrest did not occur in a case where the defendant was subject to arrest, but the officer gave the defendant a break, is an injustice to the officer.” Id. at 1124.
The court considered the detention of a person for the purpose of issuing that person an appearance ticket to be an arrest situation. To allow officers to search a person they lawfully arrest but not search that same person if they choose to issue an appearance ticket instead of arresting that person (in accord with public policy) would eliminate the incentive to issue appearance tickets. Id. at 1124. Accordingly, the court held “that the evidence seized by the officer should not be suppressed as derived from a search incident to the issuance of an appearance ticket in lieu of the lawful arrest which was initially warranted under the circumstances of this case.” Id. at 1124-1125.
In a more recent case, the Fourth Department concluded that where a police officer is authorized to arrest a person for violating a petty offense in the officer’s presence, the officer is authorized to search that person incident to that lawful arrest without regard to whether the officer feared that such person was armed. People ex rel. Johnson v. N.Y. State Div. of Parole, 299 A.D.2d 832, 834 (4th Dept. 2002). While not citing to Hazelwood, the Johnson decision followed the same reasoning as Hazelwood concluding that the police officer was still authorized to search such person where, the officer was planning on issuing an appearance ticket in lieu of arrest but simply hadn’t told the person yet. Id. at 834.
For more information, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.