Yesterday the Second Circuit issued a decision in United States v. Diaz, No. 15-3776 (Walker, Sack, Chin). In an opinion by Judge Sack, the Court addressed two questions under the Fourth Amendment: when does a police officer have probable cause to make an arrest under an ambiguous law, and whether an officer can conduct a search incident to arrest if she only intends to issue a citation.
The facts, as found by S.D.N.Y. Judge Furman in a suppression hearing and after a bench trial, were largely undisputed: While patrolling a private building under the “Clean Halls” program, NYPD officer Chris Aybar saw Jose Diaz sitting in a stairwell with a red plastic cup in his hand, an open bottle of vodka nearby, and the smell of alcohol in the air. Officer Aybar intended to issue Diaz a summons for an open container violation, but first she asked Diaz to stand. When he did so, he fumbled with the pockets of his coat and waistband, leading Officer Aybar to search him. She patted him down, and found a loaded pistol. After losing a motion to suppress the evidence obtained during the search, Aybar was convicted in a stipulated facts bench trial of being a previously convicted felon in possession of a firearm, and sentenced to 33 months in prison.
The Court first addressed probable cause to arrest. Without deciding whether New York City’s open container law prohibits drinking in the hallway of a private building—an issue the New York appellate courts have not addressed—the Second Circuit held it was reasonable for Officer Aybar to believe that Diaz committed a violation, thereby rendering the search legal under the Fourth Amendment. The City code prohibits drinking in a public place, defined to mean “[a] place to which the public or a substantial group of persons has access, including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach.” N.Y.C. Admin. Code § 10-125(a)(2). Given the ambiguity in the statute and lack of guidance from the courts, even if Officer Aybar were wrong about the effect of the statute her error was an objectively reasonable mistake of law. The Court did not even attempt to interpret the open container law itself, and noted that this is a cost of the “mistake of law” doctrine: it lets courts avoid making difficult interpretative calls, leaving the police and the public with no guidance on what behavior is illegal. Nevertheless, the Court applied the doctrine and held that Officer Aybar had probable cause to ticket or arrest Diaz. Although it is frustrating for the Court to have avoided this question, it is sensible: to paraphrase Justice Marshall, it should emphatically be the province of state court judges to say what the law of New York state is.
Next, the Court turned to the question of whether the search of Diaz was incident to an arrest since, at the time she patted him down, Officer Aybar had no intention of making an arrest. As Diaz conceded, forty years ago in United States v. Ricard, the Second Circuit squarely held that a search incident to arrest did not require an intent to arrest. But Diaz argued that an intervening Supreme Court decision, Knowles v. Iowa, 525 U.S. 113 (2008), had changed the law. In Knowles, a police officer had probable cause to arrest a driver for speeding, but instead issued a citation. After issuing the citation, the officer searched the car and discovered marijuana; only at that point did he make an arrest. The Second Circuit distinguished Knowles because the search took place after the officer had already issued a citation and determined not to make an arrest. In this case, by contrast, Officer Aybar searched Diaz with no plan to arrest him, but when an arrest was still a theoretical possibility. While the Second Circuit’s interpretation of Knowles is in line with several other federal courts of appeal, it differs from the New York State Court of Appeals. In People v. Reid, 24 N.Y. 615 (2014), the Court of Appeals held that the officer’s intent to arrest when performing the search was what mattered. The Second Circuit, though loathe to predict how the Court of Appeals might interpret the open container law, had no trouble labeling its reading of Knowles as “mistaken.” A wise judge who served in state and federal court once joked that the surest way to get a New York state court to reject an interpretation of law is for a federal court to adopt that interpretation. By avoiding the state law question of the proper scope of the open container law, the Second Circuit will avoid a contrary state law ruling.