New York Criminal Attorney Blog
Earlier this month, a state appellate court issued an opinion in a New York burglary case requiring the court to determine whether a police officer’s actions violated the defendant’s rights prior to his arrest. Ultimately, the court concluded that the officer lacked justification to stop the defendant, search his bag, and then transport him to the scene of the crime so that a show-up identification could be made. Thus, the court affirmed the lower court’s decision to grant the defendant’s motion.
According to the court’s opinion, police officers received a report of a burglary. Several officers went directly to the scene and others canvassed the area looking for a suspect. The description given by the caller stated only that the suspect was a male.
An officer saw the defendant walking with a cell phone and a bag a few blocks away from the scene. The officer asked the defendant what he was doing, to which the defendant responded he was looking through garbage cans. The officer searched the defendant’s bag and then told him that he was going to be transported to the scene. At the scene, the defendant was identified as the burglar.
The defendant filed a motion to suppress any physical evidence that was taken from him, as well as the identification made by the owner of the property. The defendant argued that the police officer who stopped him lacked reasonable suspicion to do so, based on a total lack of evidence suggesting he was involved in a crime. For the first time, the officer stated that he had previously seen a “Be on the Lookout” or BOLO alert with the defendant’s photograph, indicating the defendant may have been involved in a prior burglary. The trial court found that the officer was not credible, agreed with the defendant, and granted his motion. The state appealed.
On appeal, the lower court’s decision was affirmed. The court explained that the evidence in the record was sufficient to support the lower court’s conclusion that the officer was not believable when he claimed to have recognized the defendant as the person in the BOLO alert. The court noted that the initial report of the burglary was only for a male, and that this vague description did not provide the officer with justification to stop the defendant, who was not involved in any criminal activity at the time he was stopped.
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