Defendant, in a motion dated August 19, 2022, seeks to renew and reargue the portion of the Court’s decision denying suppression of physical evidence. The Court grants defendant leave to renew and reargue to the extent that it has reviewed the current motion papers submitted by defendant and the People, as well as the prior motion practice. After careful consideration, the Court declines to disturb its July 19, 2022 decision for the reasons set forth below. Background After a Mapp/Huntley/Dunaway/Wade hearing, the Court issued a decision dated July 19, 2022, which denied defendant’s motion to suppress physical evidence. The Court found that the People had established the requisite exigent circumstances to justify a warrantless search of defendant’s backpack. The Current Motion In a motion dated August 19, 2022, defendant moves to renew and reargue the portion of the Court’s decision denying the suppression of physical evidence. Defendant essentially restates the arguments that he made in his earlier motion, namely that the search of defendant’s backpack lacked the required exigent circumstances, and contends that the Court incorrectly applied the relevant law. The People, in a response dated September 6, 2022, oppose defendant’s motion. The Court disagrees with defendant that its prior decision was incorrect and finds it necessary to clarify and explain its earlier holding. Discussion The Court of Appeals most recently restated the law governing warrantless searches of closed containers incident to arrest in People v. Jimenez, 22 NY3d 717 [2014], which requires the People to meet two separate requirements to justify such a search. First, the People must show that the search was “not significantly divorced in time or place from the arrest.” Id. at 721. Second, the People must “demonstrate the presence of exigent circumstances.” Id. at 722.Two interests, the Court explained, underpin the exigency requirement: “the safety of the public and the arresting officer” and “the protection of evidence from destruction or concealment.” Id. Under the unique facts of the present case, the Court affirms its earlier holding that the People have met their burden of establishing that the warrantless search of defendant’s bag was proper. First, the search was not so “significantly divorced in time or place from the arrest” that it should be deemed “unreasonable.” Jimenez, 22NY3d at 721; People v. Smith, 59 NY2d 454 [1983] [search still valid "even though the arrested person has been subdued and his closed container is within the exclusive control of the police"]; People v. Alvarado, 126 AD3d 803, 804 [2d Dept 2015], lv denied 27 NY3d 962 [2016]. Although the Court of Appeals and the Appellate Division have not delineated the exact contours of when a search is impermissibly divorced in time or place from the arrest, this Court is of the opinion that such a determination will depend upon the precise circumstances of each individual case. Here, defendant still had the backpack at the time he was stopped by the police. Had the bag been searched at this point, defendant concedes that such a search of the backpack would have been lawful. However, although the bag was not searched until ten minutes later, the totality of the circumstances establish that such a delay was not so divorced in time or place from the arrest to become unreasonable. Defendant had been observed by two different police officers firing a handgun on a crowded, public street. Two bystanders were shot and the police, despite following defendant, were unable to ascertain the location of the gun. Instead of immediately searching the bag, the police chose to take the less intrusive measure of searching for the gun in public areas where they had observed defendant crouching and fidgeting just moments prior. Only after the police were unable to locate the gun (which, by their own observation, was loaded and operable) did they search the bag. Under these particular circumstances, the search of the bag was close enough in time and place to the arrest to be reasonable. Next, as for the exigency requirement delineated by Jimenez, supra, specifically “the safety of the public and the arresting officer” (id. at 722; see also People v. Gokey, 60 NY2d 309, 312 [1983]), the circumstances confronting the police satisfied this requirement and justified the warrantless search of defendant’s backpack. The Court disagrees with defendant’s assertion that there was not a highly dangerous and volatile situation at the time the police searched the backpack. As explained above, the police witnessed defendant fire a handgun on a public street and learned that two people had been shot. At the time defendant was arrested, the police did not know where the gun was and were searching for it in the surrounding area, which was public and crowded with people. When the police were unable to locate the firearm anywhere else, they searched the backpack and found the gun there. There is no question that the presence of a loaded, operable handgun in a public place poses a serious danger to the safety of the public. See, e.g., New York v. Quarles, 467 US 649, 657 [1984] [gun left in public place posed "danger to the public safety"]; People v. Sanchez, 255 AD2d 614, 615 [3d Dept 1998] ["Until the officers located the gun, they could [not] be sure that it did not pose a danger to the general public”]; Matter of John C., 130 AD2d 246, 252 [2d Dept 1987] ["guns left unattended in public areas present a danger to the public"]. Here, the circumstances (the firsthand observation by police of defendant firing a handgun) certainly supported a reasonable belief that defendant’s backpack contained a weapon. It is equally clear from the record that the police, after carefully combing through streets, storefronts and under cars, searched the backpack to ensure that an operable firearm was not left in a public place. Accordingly, the People have met their burden of establishing exigent circumstances. In reaching the conclusion that exigent circumstances justified the warrantless search of defendant’s backpack, the Court notes that the United States Supreme Court and the courts of New York State have found that a defendant’s constitutional rights must, on occasion, yield to the state’s interest in maintaining public safety. See, e.g., Quarles, 467 US 649 [establishing "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence]. Keeping in mind that the ultimate touchstone of the Fourth Amendment is reasonableness (United States v. Knights, 534 US 112 [2001]; People v. Molnar, 98 NY2d 328, 331 [2002]), the Court finds that exigency certainly existed in this case, as the police, in searching defendant’s backpack, were attempting to locate a firearm and minimize a serious threat to public safety. In the Court’s opinion, suppression of the handgun in this instance would not comport with the guiding principle of reasonableness in both the Fourth Amendment and its analogue in the New York State Constitution. It would indeed be an “ironic result” to order suppression of evidence here “merely because [the police] took the time to exercise judgment and circumspection before resorting to force” (Id. at 334), in this case searching the streets and surrounding public areas for the gun before looking inside defendant’s backpack.1 Accordingly, defendant’s motion for the Court to reconsider its July 19 decision is granted to the extent that the Court has reconsidered the facts and the law and adheres to its original decision. The defendant’s motion to suppress physical evidence is denied. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: September 29, 2022
