THE PEOPLE OF THE STATE OF NEW YORK APPELLANT v. BRYAN KALIKOW DEFENDANT RESPONDENT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum:  On appeal from an order suppressing evidence seized from defendant along with statements that he made to the police, the People contend that the warrantless search of defendant was permissible.   As the People correctly contend, the police may lawfully arrest a person for violating an ordinance and conduct a search incident to that arrest (see People v. Canal, 24 AD3d 1034, lv denied 6 NY3d 846;  People v. Taylor, 294 A.D.2d 825;  People v. Pantusco, 107 A.D.2d 854, 855–856).   If there is no arrest, however, there can be no search incident thereto (see People v. Evans, 43 N.Y.2d 160, 165–166;  People v. Erwin, 42 N.Y.2d 1064, 1065).   The record here supports County Court's determination that a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but that defendant nevertheless was searched.   We therefore cannot agree with the People that the search was justified as a search incident to a lawful arrest (see Erwin, 42 N.Y.2d at 1065;  cf.  Canal, 24 AD3d 1034;  Taylor, 294 A.D.2d at 826).

Frances E. Cafarell

Clerk of the Court