of backpack not justified where the defendant was secured and the backpack was not within his immediate control]; People v. Diaz, 107 A.D.3d 401, 966 N.Y.S.2d 413 [1st Dept. 2013] [search of backpack unlawful because the defendant was handcuffed at the time of the search and it was no longer in his control], lv dismissed 22 N.Y.3d 996, 981 N.Y.S.2d 1, 3 N.E.3d 1169 [2013], 22 N.Y.2d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014] ; People v. Evans, 84 A.D.3d 573, 922 N.Y.S.2d 403 [1st Dept. 2011] [police officers did not fear for their safety since they were making a nonviolent arrest for smoking marijuana in public and the backpack was searched after the defendant had been handcuffed; it was found to be in exclusive control of the police]; People v. Hendricks, 43 A.D.3d 361, 841 N.Y.S.2d 94 [1st Dept. 2007] [warrantless search of a paper bag was improper because the defendant had already been handcuffed and the officer testified that he did not believe that the bag contained a weapon]; People v. Julio, 245 A.D.2d 158, 666 N.Y.S.2d 171 [1st Dept. 1997] [search of bag unlawful where it was in the exclusive control of the police and the defendant was unable to reach it because he was handcuffed and surrounded by police officers], lv denied 91 N.Y.2d 942, 671 N.Y.S.2d 722, 694 N.E.2d 891 [1998] ). Still, the majority argues that the search of the suitcase was justified because defendant offered some resistance (unexplained by the officers), and a pocket knife was found in his back pocket.
The Court further held that a search incident to arrest must be conducted contemporaneously with the arrest. See also People v. Belton, 55 NY2d 49, 53 (1982); People v. Julio, 245 AD2d 158 (1st Dept 1997). The facts of Gokey are instructive.
Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it ( see People v. Thompson, 118 A.D.3d 922, 923, 988 N.Y.S.2d 209 [2d Dept.2014] [search of backpack not justified where the defendant was secured and the backpack was not within his immediate control]; People v. Diaz, 107 A.D.3d 401, 966 N.Y.S.2d 413 [1st Dept.2013], lv. dismissed 22 N.Y.3d 996, 981 N.Y.S.2d 1, 3 N.E.3d 1169 [2013] [search of backpack unlawful because the defendant was handcuffed at the time of the search and it was no longer in his control]; People v. Julio, 245 A.D.2d 158, 666 N.Y.S.2d 171 [1st Dept.1997], lv. denied 91 N.Y.2d 942, 671 N.Y.S.2d 722, 694 N.E.2d 891 [1998] [search of bag unlawful where it was in the exclusive control of the police and the defendant was unable to reach it because he was handcuffed and surrounded by police officers). The motion court's finding that the jacket was not in the exclusive control of the police cannot be reconciled with the testimony that defendant was handcuffed in the car and numerous police officers were present.
Additionally, there was no evidence as to how defendant could have gained access to the contents of the bag for the purpose of destroying it after he was handcuffed. Given the absence of exigent circumstances, the evidence unlawfully obtained during a warrantless search of defendant's backpack should have been suppressed ( People v Julio, 245 AD2d 158, lv denied 91 NY2d 942).
We also reject the People's argument that the drugs seized were admissible under the inevitable discovery doctrine, as no showing was made that there was a high probability that the police would have uncovered the same evidence through a separate line of investigation ( see People v. Turriago, 90 NY2d 77, 85; People v. Fitzpatrick, 32 NY2d 499, 506, cert denied 414 US 1050). Moreover, the drugs seized were "primary evidence," the very evidence obtained in the illegal search ( People v. Stith, 69 NY2d 313, 318-319; see People v. Vega, 256 AD2d 730, 731-732; People v. Julio, 245 AD2d 158). Since the stop was unlawful, the Supreme Court properly granted that branch of the defendant's omnibus motion which was to suppress physical evidence and the defendant's statements to law enforcement officials. [ See 3 Misc 3d 1104(A), 2004 NY Slip Op 50395(U).]
The officers had no reason to suspect that defendant might be armed, and their failure to seize the bag at an earlier time belies the People's contention that they were concerned about the possible removal or destruction of evidence ( see, People v. Gokey, 60 N.Y.2d 309, 311; cf., People v. Knapp, 52 N.Y.2d 689, 696). Significantly, before Simons even approached defendant to ask about the bag, he had been immobilized on a stretcher and the bag was well out of his reach. Consequently, the exigent circumstances that ofttimes justify a warrantless search of a container within the suspect's immediate control, or "grabbable area", incident to his or her arrest, did not exist ( see, People v. Julio, 245 A.D.2d 158, 159, lv denied 91 N.Y.2d 942; People v. Johnson, 241 A.D.2d 527, 527-528, lv denied 90 N.Y.2d 1012; People v. Vennor, 176 A.D.2d 1217, 1218-1219). Lastly, the People's attempt to rely on the doctrine of "inevitable discovery" is to no avail, as that exception to the exclusionary rule applies only to secondary evidence, not to the very items uncovered in an illegal search ( see, People v. Turriago, 90 N.Y.2d 77, 86).
Accordingly, to be legal, the search required the support of an exigency. Courts considering the issue of whether an exigency existed to support a warrantless search incident to arrest have considered as factors, among others, the nature of the offense for which the person was pursued or arrested, the presence of other officers on scene, and the defendant's behavior leading up to and during the search (see e.g. Jimenez, 22 N.Y.3d 722-723; Gokey, 60 N.Y.2d at 313; People v Hinton, 148 A.D.3d 545, 546 [1st Dept. 2017], lv denied 29 N.Y.3d 1080 [2017]; People v Morales, 126 A.D.3d 43, 47 [1st Dept. 2015]; People v Julio, 245 A.D.2d 158, 158-159 [1st 1997], lv denied 91 N.Y.2d 945 [1998]; People v Crosse, 197 A.D.3d 792, 796 [3d Dept. 2021]). Here, none of these factors exist.
Thus, so-called "primary evidence," described by the Court of Appeals as "the very evidence obtained during or as the immediate consequence of the illegal conduct," is "still be subject to exclusion even if it would most likely have been discovered in the course of routine police procedures." People v Turriago, 90 N.Y.2d 77, 86 [1997]; People v Perez, 88 A.D.3d 1016 [2d Dept 2011] ["the doctrine of inevitable discovery may not be used to rehabilitate 'primary evidence'"]; People v Julio, 245 A.D.2d 158, 159 [1st Dept 1997], appeal denied 91 N.Y.2d 942 [1998] [the likelihood that primary evidence "would have been discovered during an inventory search at the police station, therefore, does not vitiate an illegal search and seizure"]. The rationale for this limitation, the Court has explained, is that application of the inevitable discovery exception to primary evidence "would amount to a post hoc rationalization of the initial wrong" and "an unacceptable dilution of the exclusionary rule."
However, none of the cases cited by defense involve the search of the defendant's person. The defendant's citation to People v. Julio, 245 AD2d 158 (1st Dept. 1997) is also not applicable to the instant facts. In that case, the police conducted a search of the defendant's bag after the defendant has been handcuffed and surrounded by police officers.