July 13, 2012


2nd Appellate Panel Tosses A Search That Found Gun

City to Appeal, PBA Incensed


Patrick Lynch; Decries scapgoating     

PATRICK J. LYNCH: Taking away cops’ discretion.


An appeals-court judicial panel ruled 3-2 on July 3 that police had erred in stopping and frisking a 14-year-old found to be carrying a gun, saying officers had insufficient indication that the youth was doing something criminal and therefore no reason to search him.

Does that sound familiar? It might; a similar decision was handed down June 26. This time it was a different panel of judges, a different 14-year-old and a different set of circumstances.

'New Obstacles for Cops'

But the reaction from the city was the same. "The majority opinion creates new obstacles for police officers who reasonably suspect that someone is carrying an illegal gun," Corporation Counsel Michael Cardozo said of the most recent ruling. "We intend to appeal both cases."

"They are basically saying officers need to wait for someone to stick a gun in their face before looking for a weapon," said Marc La Vorgna, a spokesman for Mayor Bloomberg. "They are establishing a precedent that is going to keep more guns on the street and get people killed."

Patrick J. Lynch, president of the Patrolmen's Benevolent Association, was also critical. "This police officer's testimony describes a legally executed and appropriate stop that resulted in the confiscation of a dangerous and illegal handgun from a juvenile in a neighborhood overrun with guns," Mr. Lynch said in a statement. "The ability of a police officer to stop, question and frisk an individual is a highly effective tactic when left to the discretion of a police officer...Police officers' discretion to use the appropriate tool in any given set of circumstances is critical to effective policing."

The First Appellate Division reversed the conviction in Juvenile Court of a minor identified as Jaquan M. for criminal possession of a weapon. It dismissed his penalty of 15 months' probation.

Saw a White Object

According to facts outlined in the majority opinion, police said they saw Jaquan in West Harlem at 9:35 p.m. on June 11, 2010, peering up and down the street, then removing a white object from his waistband and placing it in a pocket of his backpack. The officers believed the object to be a gun because it had been in his waistband and he was handling it carefully, but could not tell from observation whether it was a weapon.

The officers stopped Jaquan and asked him where he was going. He said he was visiting his uncle and showed them an address, written on his forearm, of a South Bronx housing project known to be a drug-prone location. One of the officers asked what was in the backpack and Jaquan replied, "Nothing." The officer asked for identification and Jaquan said he believed there was some school paperwork in his backpack with his name on it.

"You could check if it's in any of those papers in my bag," he said. The officer opened the main compartment of the backpack, found nothing, and opened the outer pocket. He saw a white bag, felt it and found it contained something hard and heavy. He said he believed he had felt a firearm, opened the bag and found that to be the case. Jaquan was arrested. The gun was found to be loaded with 11 rounds of ammunition, and a further search of Jaquan turned up $930 in cash.

The Juvenile Court rejected an attempt by Jaquan's attorney to suppress the gun on the grounds that it had been seized illegally, so the case was appealed to the Appellate Division.

Court: No Reasonable Suspicion

The majority opinion issued by the appeals court said the stop was justified, but not the search. "This court has specifically held that the mere fact that an officer sees a person holding something near his waistband is not enough to form a reasonable suspicion, 'absent any indication of a weapon, such as the visible outline of a gun,'" the opinion said. "...Certainly the [dissenting judges] would not argue that any person on the street, even in a high-crime area, is presumed to be carrying a weapon based only on a drooping pocket or backpack."

In their own opinion, the dissenting judges cited other cases they said indicated the officers had sufficient justification for a search. "While it may be true, as the majority finds, that individually these circumstances were 'susceptible of an innocent interpretation,' here, they have to be viewed as a progression of actions, with each circumstance increasing the level of the police officer's suspicion," wrote Justice James M. Catterson. "Thus, I would find that taken together, they provided the officer with reasonable suspicion that the appellant was illegally carrying a gun in his backpack."

'Reasonable Suspicion Existed'

The dissent echoed a major point made in the dissenting opinion in the June 26 case, in which a 14-year-old identified as Darryl C. was found to have been subjected to an illegal search because officers did not have sufficient evidence that he was, had been or was about to be engaged in criminal behavior. In both cases, the majority opinion said an officer's hunch was not enough to justify a search.

"This case has a somewhat different fact pattern than the recent Darryl C. decision, in which the majority opinion found a frisk of a juvenile who illegally possessed a concealed, loaded firearm invalid," Mr. Cardozo said. "However, today's decision is the second in one week from the First Department in which three of the five judges reversed the trial court and found—erroneously, we believe—that the police lacked 'reasonable suspicion' to conduct a frisk. In each case, the facts gave rise to a reasonable suspicion of danger to the arresting officer. Interestingly, the police officers' searches also revealed dangerous weapons.

"In this particular case, the police officer observed the juvenile engage in suspicious behavior at night in a high-crime neighborhood," Mr. Cardozo continued. "In particular, the police officer saw him kneel down between parked cars and carefully transfer an object—large enough to be a gun—from his waistband to his backpack. Under the circumstances, the police officer had reasonable suspicion to stop and frisk the juvenile. As the encounter proceeded, and the juvenile falsely denied that he had anything in his backpack, the police officer had at least reasonable suspicion, if not probable cause, to search the backpack. At any rate, the juvenile consented to the backpack search."