The opinion of the court was delivered by: Nicholas G. Garaufis United States District Judge
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court is a Report and Recommendation (("R & R") (Docket Entry # 66)) issued by Magistrate Judge Cheryl L. Pollak recommending that Defendant's Motion to Suppress be denied. (Defendant's Motion to Suppress (Docket Entry # 20).) Defendant filed objections (Objection to Report and Recommendations (Docket Entry #69)) and the Government has filed its response to Defendant's objections (Docket Entry #70). Defendant's motion is denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the district court must conduct a de novo review of those portions of the R & R to which the parties have objected. The district court may not reject a proposed finding of a magistrate judge that rests on a credibility finding, however, without personally hearing live testimony from the witnesses whose testimony is determinative. Carrion v. Smith, 549 F.3d 583, 590 (2d Cir. 2008); Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999).
Portions of the R & R to which the parties have not objected are reviewed for clear error. See Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001). "Where a party makes only conclusory or general objections, the court reviews the report and recommendation for clear error." United Stated v. Lake, 244 F. Supp. 2d 104, 107 (E.D.N.Y. 2003) (internal quotation marks omitted). But the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
The court presumes familiarity with the underlying facts set forth in Judge Pollak's R & R and only briefly summarizes them here. (See generally, R & R 1-16.) Between 9:30 and 10:00 a.m. on September 2, 2008, Defendant William Morillo ("Defendant" or "Morillo") was riding his bicycle on a Brooklyn sidewalk. He was wearing a backpack at the time. Police Officers Patrick Lancer and Patrick Finnegan stopped Morillo for illegally riding his bicycle on the sidewalk, an arrestable offense in New York City. During a short exchange, while the officers remained in their vehicle, they asked Morillo for identification; and Morillo asked the officers why they stopped him. The officers told Morillo that it is a violation to ride a bicycle on a New York City sidewalk. Morillo did not present identification to the officers.
As one officer began exiting the police car, Morillo fled on his bicycle, and the officers pursued him in their vehicle. Before long Morillo hit a pothole and crashed his bicycle. Morillo then abandoned his bicycle and continued fleeing on foot. The officers eventually tackled and arrested Morillo, who resisted arrest. During the struggle Morillo's backpack came off. The officers then handcuffed Morillo and brought him and his backpack to their police car. Officer Lancer searched Morillo's person against the back passenger side of the police car while Officer Finnegan, who is six feet eight inches tall and weighs 280 pounds, searched Morillo's backpack at the rear of the police car. The officers found a loaded handgun and pair of work gloves in Morillo's backpack.
Defendant seeks to suppress the gun that officers seized from him and statements he made to the police on the day of his arrest. Morillo contends that the seizure of the gun in his backpack violated his Fourth Amendment rights in two separate ways: (i) the manner in which arresting officers arrested him for riding a bicycle on the sidewalk was unreasonable; and (ii) even if the arrest and its execution were reasonable, the arresting officers had no grounds to search his closed backpack. (See Defendant's Memorandum of Law in Support William Morillo's Motion to Suppress (Docket Entry # 20) ("Def. Mem.") 1.)
On Morillo's first ground for suppression, Judge Pollak determined that the arresting officers were justified in initially pursuing Morillo and eventually arresting him, and that in arresting Morillo the officers did not use an unreasonable amount of force under the circumstances. (R & R 19-20, 22.)
On Morillo's second ground for suppression, Judge Pollak determined that the arresting officers had two alternative grounds to search Morillo's backpack. In light of Arizona v. Gant, -- U.S. --, 129 S.Ct. 1710 (2009), Judge Pollak found that there was no reasonable possibility that Defendant could have accessed his backpack justifying a search incident to arrest. Nevertheless she found that there was a concern relating to officer security that distinguishes this case from Gant and justified the search of Morillo's backpack as a search incident to arrest. (R & R 26-27.) Judge Pollak reasoned that because the arresting officers had to transport the backpack in their police car, "there was a reasonable risk to the officers that they were transporting something in their vehicle that could injure the handler," justifying a search of the backpack for anything that "could harm them while they were handling the backpack or during the car ride to the precinct." (R & R 27.) In the alternative, Judge Pollak determined that the arresting officers properly conducted a preliminary inventory search of Morillo's backpack at the scene of the arrest pursuant to standardized criteria or established routine. (R & R 29.) Finally, Judge Pollak found that the arresting officers would inevitably have discovered the weapon during an inventory search at the precinct even if the officers had secured the backpack without searching it at the scene of the arrest. (R & R 30-31.)
Defendant specifically objects to the conclusion that the officer's search was a lawful search incident to arrest in light of Gant's reasoning.*fn1 Defendant reiterates the arguments in his post-hearing brief, objecting to the conclusion that the on-scene search constituted a "preliminary" inventory search or that the gun would have been inevitably discovered through a lawful inventory search at the police stationhouse. (See Defendant's Post Suppression Hearing Letter (Docket Entry #64).)
This court adopts in part and modifies in part the Magistrate Judge's recommendation. The court adopts the recommendation that Morillo's arrest and manner of arrest did not violate Morillo's Fourth Amendment rights. Regarding the search of Morillo's backpack, the court concludes that the search was not a valid search incident to arrest. But the gun is nonetheless, admissible because it would inevitably have been discovered during a valid inventory search and because the arresting officers were justified in investigating potentially dangerous instrumentalities prior to transporting them in their police car. Accordingly, the court accepts and modifies the Magistrate Judge's recommendation to deny Morillo's suppression motion on the grounds set forth below.
A. Search Incident to Arrest
A search incident to arrest is a well-settled exception to the Fourth Amendment's warrant requirement. Chimel v. California, 395 U.S. 752, 763 (1969). This exception authorizes police to search the "arrestee's person and the area within his [or her] immediate control," which is "the area from within which he [or she] might gain possession of a weapon or destructible evidence." Id. Concerns for police officer safety and evidence preservation justify the exception because a search incident to arrest may reveal weapons that an arrestee may use to resist arrest or effect escape or may reveal evidence that an arrestee may conceal or destroy. See id. at 763.
Searches incident to arrest can be performed regardless of whether police officers have probable cause to believe that an arrestee may actually have a weapon or evidence that he or she may destroy. United States v. Robinson, 414 U.S. 218, 235 (1973). "[T]here is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed." United States v. Chadwick, 433 U.S. 1, 14 (1977). But when a search is remote in time or place from an arrest the two justifications are absent and cannot justify a search as incident to arrest. Chimel, 395 U.S. at 764.
When a search cannot be justified as incident to a lawful arrest, the Fourth Amendment does not permit warrantless searches of luggage or other property seized at the time of an arrest. Rules governing the searches of closed containers determine the validity of warrantless searches of containers such as backpacks. See Chadwick, 433 U.S. at 15 (holding that a search at a police station, more than one hour after the arrest, is not justified as incident to arrest), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 575-79 (1991). Variations in a container size and whether a container is locked are immaterial. See Arkansas v. Sanders, 442 U.S. 753, 762 n.9, overruled on other grounds by Acevedo, 500 U.S. at 575-79.
In Chadwick the Supreme Court stated that "[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." 433 U.S. at 15. Thus "when no exigency is shown to support the need for an immediate search, the Warrant ...