Opinion
Argued October 19, 1978
Decided November 28, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PAUL T. D'AMARO, J.
David W. McCarthy for appellant.
Eugene Gold, District Attorney (Lionel Rene Saporta of counsel), for respondent.
MEMORANDUM.
Order of the Appellate Division reversed, and the indictments dismissed.
The order reversing the trial court's dismissal of Indictment No. 2509 (heroin sale) for failure of the People to produce legally sufficient evidence must be reversed, as the People straightforwardly agree, because reprosecution on the indictment is barred by double jeopardy (see People v Key, 45 N.Y.2d 111, 117; People v Brown, 40 N.Y.2d 381, 393, cert den 433 U.S. 913, mot for rearg den 42 N.Y.2d 1015).
As to Indictment No. 2508 (cocaine possession), suppression of the contraband seized following defendant's arrest is required. While the arrest in the hallway may have been proper, the ensuing search of the apartment was not (see People v Williams, 37 N.Y.2d 206, 208). The police did not have to enter the subject apartment, and indeed did not, in order to arrest defendant and his cohorts. The arrests took place in the hallway outside the apartment, and, as the hearing court found in suppressing the contraband, "There was no evidence to suggest the presence of any other persons in the apartment to justify the search for the protection of the Police Officers against a hidden assailant." The search cannot, therefore, be justified as incident to the arrest. Similarly, since the arrests took place in the hallway, and the narcotics were found in the kitchen, the "plain view" exception is not applicable.
Moreover, once the arrests were completed, there was no significant danger that any existing contraband would be destroyed. Important in this regard is that the police had no reason to believe contraband was in any particular place, if any remained in the apartment at all after the toilet flushings heard through the door before defendant and his companions emerged (compare People v Clements, 37 N.Y.2d 675, esp pp 684-685, cert den 425 U.S. 911). No general rummaging search without a warrant was permissible.
Since the contraband was properly suppressed, the indictment must be dismissed (CPL 450.50).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.