PEOPLE v. FULLADOSA (2026)

Judgment, Supreme Court, New York County (James M. Burke, J., at suppression hearing and sentencing;  Neil E. Ross, J., at plea), rendered August 9, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously reversed, on the law, and in the interest of justice, and the indictment dismissed.

Defendant was indicted on two counts of criminal possession of a weapon in the second degree and one count of criminal possession of a firearm, based on allegations that he possessed a loaded gun during a March 10, 2022 arrest.  Police received an anonymous tip on March 9, 2022, describing a short, light-skinned, bald male with a gold and black beaded necklace;  the individual purportedly sold marijuana daily at 561 West 175th Street and usually kept a firearm in his waistband.  Based on defendant's prior gun possession arrest at the same location, officers believed the individual described in the tip was defendant.  The next day, officers observed defendant engage in two hand-to-hand exchanges of a small object for money, though the buyers were never stopped.  When approached, defendant was rolling a marijuana cigarette, wearing a beaded necklace, and playing loud music.  A frisk revealed no weapon.  Officers did not arrest defendant for the alleged drug sales because the buyers were not apprehended.  The officers planned to issue a disorderly conduct summons, but after defendant said he had no identification, they decided to handcuff and transport him to the precinct.  Before transport, the officers searched him for their safety because of the tip about a firearm, and found a loaded gun in his hoodie pocket, along with marijuana.  At the precinct, a further search led to the recovery of a knife and a phone.

The motion court erred in denying suppression on the ground that the gun and drugs were recovered in a lawful search incident to arrest.  Although the motion court held that the police possessed probable cause to arrest defendant for selling drugs, it did not base its conclusion that defendant was justifiably arrested and searched incident to arrest on that finding of probable cause.  The arresting officer testified that they did not arrest defendant for the alleged drug sales, and did not intend to do so, because the buyers were not apprehended.

Although the motion court did not ground its conclusion that defendant was lawfully arrested based on probable cause for any drug-related offense, the People contend that the drug-related probable cause can nonetheless validate the arrest and the search incident thereto (see Devenpeck v. Alford, 543 U.S. 146, 153 [2004];  see also People v. Rodriguez, 84 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 861 [2011];  People v. King, 102 A.D.2d 710, 710–711 [1st Dept 1984], affd 65 N.Y.2d 702 [1985];  People v. Bandera, 204 A.D.2d 340, 341 [2d Dept 1994], lv denied 83 N.Y.2d 1002 [1994] ).  This argument is without merit.

Initially, we note that defendant has adequately preserved for appellate review the challenge to the legality of the search.  As reflected in the record, at the conclusion of the suppression hearing, defendant disputed the search insofar as it was predicated on the officers' drug-related observations and purported disorderly conduct violation.  Moreover, even if the claim were unpreserved, the “unique circumstances of this case and the context of the motion ․ warrant relief in the interest of justice” (People v. Esperanza, 203 AD3d 124, 128 [1st Dept 2022] ).

As the interaction with defendant progressed, the reason the officers declined to arrest defendant on drug-related charges—specifically, that the buyers were unapprehended—remained unchanged.  Accordingly, without more, the only conclusion supportable by the suppression hearing testimony is that the officers had an established intention not to arrest for potential drug charges.  With this intention not to arrest for potential drug charges established, such a basis for the arrest is properly considered in the manner of the potential driving while intoxicated charge in People v. Reid (24 NY3d 615, 618–619 [2014] )—that is, a charge for which facts known to the arresting officers would have supported a lawful arrest and search incident thereto but for record-demonstrated affirmative lack of intent to arrest on such a basis at the time of the search (see also Knowles v. Iowa, 525 U.S. 113, 114–115 [1998] [arrestable traffic offense for which officer elected citation];  cf.  Devenpeck, 543 U.S. at 150 [evidence that state patrol affirmatively declined to pursue charges supported by probable cause after arrest and consultation with county prosecutor's office] ).  Under these circumstances, the search cannot be justified on the basis of probable cause for a drug-related charge (see Reid, 24 NY3d at 619;  see also People v. Simmons, 151 AD3d 628, 629 [1st Dept 2017];  People v. Mangum, 125 AD3d 401, 402–403 [1st Dept 2015] ).  Put differently still, in the absence of the alleged disorderly conduct violation, the officers' search would have been unlawful for reasoning identical to that in Reid (see 24 NY3d at 618–619).

Instead, the motion court denied defendant's suppression motion on the ground that defendant was properly arrested for disorderly conduct (Penal Law § 240.20) based on evidence that he was making “unreasonable noise” with the portable speaker he wore around his neck.  On appeal, the People do not contend that the arrest was lawful on this basis, nor do they argue that defendant's arrest was permitted based on any failure of defendant to identify himself under CPL 150.20(1)(b)(iii).  At any rate, even assuming that the police possessed probable cause to believe that defendant had committed this violation—which is not at all clear from the record—the arrest was improper under CPL 150.20(1)(b)(iii).  Defendant's “verifiable identity and a method of contact” were “known” to the arresting officers based on, among other things, an earlier arrest for gun possession, of which the officer who testified at the suppression hearing and the officer who received the tip regarding defendant's drug-selling were aware.  In addition, defendant offered that his parole officer could verify his identity.  Defendant was thus entitled, under CPL 150.20, to be issued an appearance ticket for the alleged violation, and not to be arrested for it.  His arrest for the violation and the search incident to that arrest were therefore unlawful, and the evidence recovered incident to the arrest should have been suppressed.

Ultimately, the present case does not involve a simple misapprehension of the proper basis for the arrest.  Rather, the officers deliberately declined to arrest defendant for a drug-related offense (see Reid, 24 NY3d at 618–619) and unlawfully arrested him for an alleged violation warranting an appearance ticket (see CPL 150.20).  Contrary to the People's argument, Devenpeck does not authorize a search incident to arrest where each proffered basis for the arrest is independently unlawful.

We have considered the People's remaining arguments and find them unavailing.