Defendant, charged with attempted criminal possession of a weapon in the fourth degree, Penal Law §§ 110/265.01(2) (two counts), criminal possession of knives or dangerous instruments, Administrative Code, "AC" 10-133(b), unlawfully dealing with fireworks and dangerous fireworks, Penal Law § 270.02(2)(a)(iii) (two counts), and possession of handcuffs, AC 10-147(a), moves to suppress both physical evidence and post-arrest statements. All of the challenged evidence was obtained after law enforcement officers searched the defendant's backpack in the lobby of Trump Tower.

The Court concludes that search of defendant's backpack was lawful. Accordingly, everything that flowed from that search was also lawful: the recovery of the items contained in the backpack, defendant's arrest, his post-arrest statements, and the subsequent search of his apartment, computer and cell phone. The motion to suppress is accordingly DENIED in its entirety.

On October 26, 2017, the Court conducted an evidentiary hearing on defendant's motion. The People called two witnesses, Officer Dallys Talley of the United States Secret Service, and New York City Police Officer Rhomane Ogle. The Court, having carefully observed the officers' demeanor on the witness stand, fully credits their testimony.

At approximately 6:30 p.m. on December 12, 2016, defendant entered Trump Tower, located at 721 Fifth Avenue, in New York County, through an entrance to the building located in [*2]a Nike store on East 57th Street. Trump Tower was, and still is, the New York residence of then President-Elect Trump and his family.

Upon entering, defendant encountered a security checkpoint preceded by two signs, one from the Secret Service, and one from the Trump organization, warning that persons entering the building and their belongings were subject to search. The Secret Service sign also warned that persons entering the building were consenting to a search of their belongings. Past those signs, immediately in front of the defendant, there was an X-ray machine, which was staffed that evening by Officer Talley. Defendant made his way to the checkpoint and placed his backpack on the belt of the X-ray machine.

Officer Talley, viewing the X-ray image of defendant's backpack, saw the outline of what appeared to be a knife. In order to learn more, the officer asked the defendant to step away from the X-ray machine. They walked approximately ten feet to an area near the machine, and Officer Talley opened the backpack. From the backpack he recovered, inter alia, a large knife, a small pocket knife, handcuffs, a garrotte, a rope, and a firework. A laptop computer and a cell phone were also inside. Officer Talley eventually handed over the backpack and its contents to the New York City Police Department.

After these items were revealed, defendant made several statements to Officer Talley, in response to questioning. He said that he had entered Trump Tower to study. He also said that he had recently been hunting, then later said that this was not true. He acknowledged having a knife and handcuffs in the bag. Defendant also told Officer Talley that he had entered Trump Tower about one month before, on November 17.

Eventually, other Secret Service officers, some from the "Person of Interest" squad arrived and questioned the defendant further. Police Officer Ogle, who arrived at about 7:30 p.m., while defendant was being still being questioned, overheard some additional statements. Defendant said that he "always" had those items in his bag, and that he had been through metal detectors before with them and had not had any trouble.

Officer Ogle then placed the defendant under arrest and brought him to the Midtown North Precinct station house. There, defendant was read, and waived, his Miranda rights. He made additional statements at the precinct, in the presence of Officer Ogle. Amongst other things, defendant said that he was a "survivalist" and had "more M100's"[a form of firework] and some "small grenades" in his room.

The following day, defendant made another Mirandized statement, this time in the District Attorney's office. That statement included an admission that the items recovered from the backpack belonged to him, and his claim that he used the large knife for his own protection. Defendant also said, inter alia, that he had been to Trump Tower about ten times with those same items, and he repeated that he had additional M100 fireworks in his room.

Subsequently, New York City police officers searched the defendant's residence, pursuant to a search warrant, and discovered additional fireworks inside an ammunition box. Defendant's cell phone and defendant's laptop, both seized at Trump Tower, were also searched, pursuant to a second search warrant, and additional items of evidence, in particular video clips depicting actual or attempted acts of violence, were recovered from the laptop.

Because the Court finds that defendant's encounter with law enforcement was lawful from [*3]its inception, under both the Fourth Amendment to the United States Constitution and Article I, Section 12, of the New York State Constitution, defendant's motion to suppress is denied in its entirety.

Defendant's interaction with the police and secret service can be analyzed in more than one way. But however it is analyzed, there was no unlawful conduct on the part of law enforcement.

The court's first of its three alternative conclusions of law follows a traditional De Bour analysis. See People v. De Bour, 40 NY2d 210 (1976).

Defendant's initial encounter with law enforcement, at the security checkpoint, began as a straightforward "level one" inquiry. A level one inquiry, also known as a "request for information," requires only an objective, credible reason, not necessarily indicative of criminality, for questioning a citizen. People v. Moore, 6 NY3d 496, 498 (2006). Here, the request that the defendant place his backpack through an X-ray machine if he wanted to enter Trump Tower was simply a "level one" request for information. The objective and credible reason for scanning the backpack - the need to ensure that the backpack contained nothing dangerous - fully supported this minimally intrusive security measure. It was a routine security check that every person entering the building was subjected to, and hence it could not have reasonably led the defendant to believe that he was suspected of wrongdoing. See People v. Hollman, 79 NY2d 181, 190-91 (1992); People v. Moore, 47 NY2d 911 (1979), revg. for reasons stated in dissenting opn., 62 AD2d 155 (1st Dept. 1978).

Once Officer Talley saw the outline of a knife in defendant's backpack, this became a "level three" case. The image of the knife, in that particular setting at that particular time, gave rise to reasonable suspicion to believe that criminal activity was afoot, and allowed the officer to take steps, including opening the backpack, to investigate further. People v. Herrera, 76 AD3d 891, 893-94 (1st Dept. 2010) (forcible stop of defendant and removal of knife permissible under "level three"). Indeed, in People v. Fernandez, 16 NY3d 596, 600-01, 602 (2011), the Court of Appeals approved of the forcible removal of a knife from the defendant's person - a more invasive move than that which occurred here - based on reasonable suspicion. See also People v. Martin, 88 AD3d 473, 474 (1st Dept. 2011) (officer justified in forcing open defendant's hand on suspicion that it contained drugs).

After the agent opened defendant's backpack and shared its contents - which included several illegal or potentially illegal items - with the New York City Police Department, this became a "level four" case, and the police had probable cause to arrest the defendant. Moore, 6 NY3d at 499.

Alternatively, the Court holds that the defendant's encounter with the police was completely consensual. See, e.g., United States v. Avery, 137 F.3d 343, (6th Cir. 1997) ("Fourth Amendment principles regarding unreasonable seizures do not apply to consensual encounters.") Defendant voluntarily entered the lobby of Trump Tower, in full view of several signs warning him that he and his belongings were subject to search and that by entering he was consenting to that search. And, when he saw the X-ray machine, he freely agreed to place his backpack on the belt. He was under no obligation to do so. If he had objected to having his backpack X-rayed, he [*4]could simply have taken it and left the building.

Having elected to stay and run his backpack through the X-ray machine, defendant made yet another voluntary choice. When Agent Talley asked him to step aside for a secondary inspection, defendant was under no compulsion to do so. He could have simply politely declined, taken his backpack, and left. See MacWade v. Kelly, 460 F.3d 260, 270 (2d Cir. 2006) (an individual may avoid search of his bag under MTA's mass transit search program as long as he leaves the subway). But defendant did not. He agreed to join the agent for a secondary inspection, and his choice to do so was, under the totality of the circumstances, both knowing and voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1973); Florida v. Bostick, 501 U.S. 429, 438 (1991) (bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant, as long as the cooperation is voluntary).

Finally, since defendant was on notice that by entering the building he was consenting to the search of his bag, Officer Talley's search of the bag itself was the product of defendant's knowing and voluntary consent. And, the contents of defendant's backpack, gave rise to probable cause to arrest him. Accordingly, under this alternative theory, defendant's encounter with the police was lawful from its inception.

Finally, as a third alternative, the search was lawful under the so-called "special needs" exception to the Fourth Amendment. Where the terms of this exception are satisfied, a search can be justified outside of the ordinary warrant/probable cause rubric. McWade, 460 F.3d at 268. The exception applies where the type of search at issue has as its immediate purpose an objective distinct from the ordinary evidence gathering associated with a criminal investigation. Id. However, once a proper governmental interest is identified, the search is only lawful if that interest outweighs: (1) the "nature of the privacy interest" affected by the search; (2) the "character of the intrusion," and; (3) the efficacy of the search in advancing the interest. Id. at 269. "Special needs" searches have been upheld not only in the New York City transit system, id. at 275, but also in the form of random airport searches, highway sobriety checkpoints, highway information-gathering checkpoints, border patrol checkpoints, and checkpoints near military installations. Id. at 268, collecting cases.

Some New York State courts, including at least one that is binding on this Court, have also recognized that the "special needs" doctrine places certain types of searches outside of the ordinary application of De Bour. See, e.g., People v. Blake, 39 AD3d 402 (1st Dept. 2007) (collection of DNA sample from persons convicted of certain offenses was justified under the "special needs exception to the prohibition against suspicionless searches"); People v. Codrington, 30 AD3d 355, 355 (1st Dept. 2006) (same, for bag-search checkpoint outside of Central Park during a parade); People v. J.G., 171 Misc 2d 440, (Sup. Ct. Richmond County 1996) (mandatory HIV testing of sex offender lawful under special needs doctrine). See also People v. Hale, 93 NY2d 454, (1999) (dicta recognizing applicability of the exception to searches of parolees and probationers, but not adopting it).

Applying the "special needs" exception here, the Court finds that the search of defendant's bag was lawful. First, the facts clearly point to a compelling governmental interest: the need to regulate security at a building that, among other functions, served as the home of the [*5]then President-Elect of the United States and his family. This need clearly outweighed the factors on the other side of the "special needs" balancing. The nature of the privacy interest here, although not trivial, was nevertheless outweighed by the governmental interest. Running the defendant's bag through an X-ray machine did not affect his privacy interests to nearly as extreme a degree as other types of suspicionless searches - such as a body cavity search or a search of the defendant's home - might have.

In addition, the character of the intrusion was minimal: The use of an X-ray machine would reveal only a general view of those items that might potentially be dangerous, and not the entire contents of the defendant's backpack, or anything genuinely personal, like the contents of his phone or computer, or of any personal writings. And, finally, the efficacy of the search method was closely tailored to, and highly likely to advance, the interest involved, since it was specifically designed to intercept potentially dangerous materials in a highly sensitive area.

Accordingly, the search of the defendant's backpack was lawful under the "special needs" exception to the Fourth Amendment.

These conclusions, then, lead to the following outcomes: First, the search of defendant's backpack was lawful and the motion to suppress the contents of defendant's backpack is denied.

Second, the arrest of the defendant was lawful, and the fruits of that arrest, including defendant's statements, were lawfully obtained as well.

In addition, defendant's statements were not obtained in violation of Miranda. On scene, defendant was not "in custody." It is clear that when the defendant was speaking with Officer Talley alone, there was no custodial interrogation. The agent was by himself, and defendant was free to leave.

Similarly, when Officer Ogle arrived and witnessed defendant's questioning by additional officers, defendant was still not in custody. While Officer Ogle believed that, by this point, defendant was not free to leave, there is more to the custody question than that. A person is "in custody," for purposes of Miranda, either when he is formally arrested or when he is subject to a "restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 461 U.S. 1121, 1125 (1983), citation and internal quotation marks omitted. Since neither of those circumstances was present here, defendant was not "in custody" when he was questioned at the scene, even if he was not in fact free to leave by then. Defendant's later statements - those in the precinct and the District Attorney's office - were properly Mirandized.

Finally, I conclude that, under the totality of the circumstances, defendant's statements were not involuntary.

As for the search warrants, the search of defendant's residence, pursuant to the first search warrant, and the search of his phone and laptop, pursuant to the second warrant, were likewise lawful. Another judge has already denied defendant's motion to controvert those search warrants, and neither this hearing nor the Court's independent review of the materials supporting those warrants merits revisiting those decisions.

However, that the warrant applications themselves established probable cause is not the end of the matter. Evidence obtained pursuant to the execution of a search warrant must be suppressed if the information contained in the application was itself derived from a prior illegal search or seizure. See, e.g., People v. Cirrincione, 207 AD3d 1031 (4th Dept. 1994). Here, [*6]however, the warrant applications were based only information lawfully obtained from the defendant, as discussed at length above. Accordingly, the motion to suppress the evidence obtained from the defendant's apartment after the execution of the first search warrant, and the motion to suppress the evidence obtained from his laptop after the execution of the second, are likewise denied.

For the foregoing reasons, defendant's motion to suppress is denied in its entirety.

This constitutes the Decision and Order of the Court.