In re Victor M.

OPINION OF THE COURT

We hold that the police search at issue in this case was unreasonable as a matter of law, and that the drugs found on Victor M. during the search must be suppressed.

Facts and Procedural History

Officer Orlando Recio, patrolling a Bronx apartment building, came upon Victor and several other people gambling with dice. The officer decided to issue Victor a summons, but Victor had no identification, and his mother, who appeared on the scene, had none either. Victor offered to get identification but, for reasons not explained in the record, the offer was not accepted. Instead, the officer handcuffed Victor and brought him to the station house, where he searched him and discovered narcotics.

In the resulting juvenile delinquency proceeding based on Victor’s possession of a controlled substance, Victor moved to suppress the narcotics as being the result of an unlawful search. Family Court denied the motion, adjudicated Victor a delinquent, and placed him in the custody of the Office of Children and Family Services for a period of up to 18 months. The Appellate Division, by a 3-2 vote, affirmed the order of disposition. Victor appeals to us as of right, pursuant to CPLR 5601 (a), and we now reverse.

The only issue on appeal is whether Officer Recio’s search of Victor was lawful. Three theories have been advanced to support the search—one by Family Court, a second by the Appellate Division majority, and a third by the presentment agency in its brief to us. We reject all three theories.

Family Court held the detention and subsequent search of Victor lawful because it believed Officer Recio had seen him commit two misdemeanors, promoting gambling in the second degree (Penal Law § 225.05) and possession of a gambling device (Penal Law § 225.30). Neither of these statutes is applicable to the facts of this case. Under the first, a person is guilty “when he knowingly advances or profits from unlawful gambling activity”—but the definitions of the terms “advance gambling activity” and “profit from gambling activity” specifically exclude actions taken “as a player” (Penal Law § 225.00 [4], [5]). Nothing in the record suggests that Victor was anything but a player in the dice game. The second statute, as relevant here, applies when a person possesses a gambling device “believing that the same is to be used in the advancement of unlawful gambling activity” (Penal Law § 225.30 [a] [2]). Whatever its precise scope, this statute cannot fairly be read to apply to every player in a dice game who touches the dice.

The Appellate Division majority agreed with Family Court that “Recio’s observation of appellant gambling in the hallway provided him with probable cause for an arrest” ( 35 AD3d 180 , 181 [2006]). But the Appellate Division ignored the two statutes relied on by Family Court and cited two others, those prohibiting trespass (Penal Law § 140.05) and loitering (Penal Law § 240.35 [2]). We see nothing in the record to indicate that Victor was trespassing, but he apparently did violate the loitering statute, applicable to anyone who “[l]oiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia.” The point is moot, however, because neither simple trespass nor loitering is a “crime” as the term is defined in the Penal Law (§ 10.00 [6]); each is a violation, not a misdemeanor or a felony. A warrantless arrest of a juvenile is authorized only in cases where an adult could be arrested “for a crime” (Family Ct Act § 305.2 [2]). Victor was 15 years old at the time of his arrest, and there is no evidence in the record that the officer either believed or had reason to believe that he was older.

Accordingly, the order of the Appellate Division should be reversed, without costs, the motion to suppress granted and the petition dismissed.

Chief Judge Kaye and Judges Ciparick, Grafpeo, Read, Pigott and Jones concur.

Order reversed, etc.