The following excerpt is from People v. Allen, 176 Misc.2d 858, 675 N.Y.S.2d 482 (N.Y. City Ct. 1998):
The officer testified that he discovered the glassine of heroin in the cigarette box the defendant "was holding," Tr. at 7, but it was never shown that defendant retained possession of the cigarette box during the arrest. In fact, the witness stated that upon confronting defendant, he "attempted to place the cigarette box next to his right leg." Id. at 6. On this record, it cannot be determined whether, after attempting to conceal the cigarette box against his leg and then being arrested and handcuffed, defendant retained the capacity to destroy whatever evidence the cigarette box might have contained. When defendant was "subdued and his closed container ... within the exclusive control of the police," the only concern that might have justified a search would have been ensuring the safety of the officer or the public. People v. Smith, 59 N.Y.2d at 458, 465 N.Y.S.2d 896, 452 N.E.2d 1224. Based on the record, so small and innocuous a container apparently did not raise any such issue here.
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