Last month, a state appellate court issued a written opinion in a New York gun possession case discussing whether the arresting officer had a “founded suspicion” that there was criminal activity afoot. Ultimately, the court held that the defendant’s motion to suppress the firearm that was found on him should have been granted, because the arresting officer approached, stopped, questioned and subsequently searched the defendant without sufficient reason.
The Facts of the Case
According to the court’s opinion, the defendant was out walking his dog in an area known to be an “open air drug market” when he was approached by a police officer. That night, the temperature was about 40 degrees, and the defendant was wearing a mask that covered part of his face. The officer, who had only been on the force a few months and was working underneath a more experienced officer, pulled his vehicle in front of the defendant’s line of travel, got out of the car, and approached the defendant to ask him why he was wearing a mask. The defendant responded that he was walking his dog.
At this time, the more experienced training officer asked the defendant what was in a bag that he was carrying. The defendant responded that it was “weed.” The arresting officer then frisked the defendant and found a gun. The defendant filed a motion to suppress the gun, arguing that the arresting officer lacked reason to stop and question him, as well as to conduct the pat-frisk that led to the discovery of the gun.
The court agreed with the defendant, and ordered the suppression of the gun. The court explained that there are four levels of street encounters initiated by police. The first level allows a police officer to request information from an individual and must only be supported by a credible reason. The second level, known as the common-law right of inquiry, allows a greater level of intrusion and must be supported by a founded suspicion that criminal activity is afoot. The third level allows an officer to stop a defendant and requires the officer to have a reasonable suspicion that the person was involved in criminal activity. And finally, the fourth level allows an officer to arrest someone, and must be supported by probable cause.
The court held that, even if the arresting officer had a credible reason to approach the defendant, the encounter escalated when the training officer asked the defendant what was inside the bag. The court noted, to ask such a question, the officers would need to be acting on a founded suspicion that criminal activity was afoot. Here, there was no call reporting a crime and no suspicious behavior observed by the police. Thus, the court granted the defendant’s motion.
Have You Been Arrested for a New York Gun Crime?
If you have recently been arrested for the possession of a firearm in New York, contact the dedicated criminal defense attorneys at Tilem & Associates. At Tilem & Associates, we represent clients in all types of criminal matters, including New York gun offenses, drug cases, as well as violent crimes. To learn more, call 877-377-8666 to schedule a free consultation. During the COVID-19 crisis, our physical offices are closed, but our business hours remain unchanged. New clients are welcome to call to speak to an attorney and have an immediate and free case consultation over the phone with one of our experienced attorneys.