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Articles Posted in Stop and Frisk

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Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

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Recently, a state appellate court issued an opinion in a New York criminal law case discussing whether a police officer’s search of the defendant’s backpack was lawful. The Court examined whether the defendant abandoned property as a result of lawful or unlawful police conduct.  Ultimately, the court concluded that the police officer was justified in his actions leading up to the point where the defendant discarded the bag. Thus, the court denied the defendant’s motion to suppress the gun.

The Facts of the Case

Police received an anonymous radio call that there was a man with a handgun riding the B9 bus towards Canarsie. Police waited at a bus stop, and when the defendant exited the bus, a police officer approached the defendant and asked him if he would mind talking to the officer for a moment.

At this point, the police officer claimed that the defendant became nervous and put his right hand into his pocket. When the police officer asked the defendant to remove his hand, the defendant refused. The police officer then drew his weapon and forcibly tried to remove the defendant’s hand from his pocket. The defendant fled and the police officer pursued him. Shortly thereafter, the defendant discarded the bag, the police officer searched the bag, and the police officer recovered the firearm.

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Over the last few years, there has been a backlash against the New York stop-and-frisk program, based on the fact that racial minorities were being stopped in far greater numbers than non-minority populations. And while by most accounts, the total number of people stopped and frisked has decreased, the basic principle that allows a police officer to stop and frisk a citizen still remains intact and these principles are important for experienced criminal defense attorneys who handle both gun crimes and drug crimes to be familiar with.

Under New York criminal law, there are four types of interactions with police. First, police may briefly stop someone to request information if they have any “objective and credible” reason. This does not necessarily have to be related to criminal activity. Second, if police believe that someone has, or is about to, commit a crime, they can briefly stop that person. Third, if police believe that the person poses a danger, they can search that person. Finally, if police have probable cause to believe that person committed a crime, they can arrest them.

In the moment, police have a difficult time neatly fitting each situation they confront into one of these four categories. As a result, police generally err on the side of restricting a person’s rights and will frequently exercise more force than is necessary. When this is the case, any evidence seized as a result of an officer’s violation of a person’s rights may be suppressed by the court.

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