Police need to justify their actions. More than just saying hello or “peeking” into the car window, New York police officers must justify a criminal inquiry or a search. Often there are allegations that New York Police might target one individual over another. Justifications for police action, and sometimes police shootings, in New York have been as tenuous as suggestions that there was something in the suspect’s waistband.
This case is no different. Police had recovered some marijuana in a field and, the next day, the Police went back to the same field to investigate. Here, the defendant was one of several men in the field. When police approached they saw the defendant “quickly grab” near his waist/waistband. This rather innocuous behavior was the justification that police gave to search the defendant in People v. Elliot, an appeal from the defendant’s conviction for possession of, inter alia, a handgun.
The New York Law Journal reported that “[t]he movements of a man ‘grabbing’ at his waistline and bending down toward the floor while in a vehicle did not create the requisite suspicion to justify his arrest by a Rochester police officer, an appeals court ruled.” Indeed, the Appellate Court Court observed that
The officers returned to that area the next day along with a police sergeant, and they observed a group of five or six men, who dispersed upon their approach. The sergeant saw defendant “quickly grab near his waistband area” and enter the front passenger seat of a nearby sport utility vehicle, where the sergeant saw defendant bend over, “as if [defendant] was putting something underneath the seat.” The sergeant left his patrol car and approached defendant with his service weapon drawn, demanding to see defendant’s hands.
One should note that this behavior was the predicate for officers to withdraw their weapons from their holsters and approach behavior completely consistent with innocence. Playing it safe or be cautious does not justify the approach with weapons drawn. The defendant asserts that his Fourth Amendment rights were violated by such a seizure and the subsequent search that ensues. The Court states that…
We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention (see Mobley, 120 AD3d at 918; People v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422-1423; People v Guzman, 153 AD2d 320, 323). Inasmuch as the forcible detention of defendant was unlawful, the handgun and other physical evidence seized by the police, and the statements made by defendant to the police following the unlawful seizure, should have been suppressed.
This is yet another case that highlights the importance of vehemently fighting the criminal charges and hiring an experienced defense attorney. Should you need a Florida licensed Criminal Defense Attorney or Long Island Criminal Defense Attorney, call the Law Offices of Cory H. Morris.
In a strange twist, a convicted felon, pro se, wins another crack at a suppression hearing on the basis of ineffective assistance of counsel. The Court noted that the “record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to move to reopen the suppression hearing based on trial testimony” contradicting a previous statement(s) by law enforcement. Pp. 2. Noting the standard for reopening a suppression hearing, the Court observed that:
Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. With regard to the “reasonable diligence” requirement, the People argue that it was not met here because defendant, who was standing several feet from the superintendent when the police arrived, was in a position to know whether the bag was closed or open at the time. Under the rule the People posit, evidence adduced for the first time from a witness at trial — no matter how reliable the witness, how unlikely he or she would have been to cooperate with the defense investigation before trial, or how conclusively his or her testimony would undermine the suppression ruling — would never entitle a defendant to a reopened hearing, so long as the defendant was in a position where he or she could have observed the same events as the witness. We reject such a narrow reading of the statute (see e.g. People v. Figliolo, 207 AD2d 679 [1st Dept 1994]). While, as a general matter, a defendant may be presumed to have knowledge of the circumstances surrounding his or her arrest (see People v. Hankins, 265 AD2d 572 [2d Dept 1999], lv denied 94 NY2d 880 ), that presumption is not mandatory, and the principle does not mandate the conclusion that such knowledge existed under the particular facts of this case.
The Court notes that the Defendant “could not have known that a People’s witness would completely contradict the police officers on the critical suppression issue. Moreover, if at the hearing, he had taken the stand to present his account of the arrest, his credibility would have been subject to impeachment because his status as an interested witness and his lengthy criminal record.” Pp. 2. In making its conclusion, the Court finds that “it is far more likely that counsel, who did not represent defendant at the suppression hearing, did not focus on the contradiction and gave no thought to a motion to reopen. More importantly, even if the dissent is correct about counsel’s subjective belief that the superintendent was mistaken about the police opening the bag, it is difficult to comprehend how opting not to give the court the opportunity to make that credibility determination for itself can be deemed a competent strategy.” P. 3. more