E.D.N.Y.: Finding NYPD officers were “embroidering the truth” about their RS, court finds it elsewhere

The court finds reasonable suspicion for a stop and frisk but not on the grounds offered – the officers were “embroidering the truth” about an alleged parking violation and the smell of marijuana. United States v. Levy, 2016 U.S. Dist. LEXIS 160984 (E.D.N.Y. Nov. 21, 2016):

This case arises during a time in which courts are on the edge of a series of subtle decisions regarding the balance required in encouraging effective police action to protect the public while preventing police abuse; respect by the public for sound police work is essential.

Framing the appropriate symmetry is particularly necessary since New York City’s stop-and-frisk policy as a method for seizing illegal weapons has been appropriately limited by case law and changes in police tactics. See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). This case represents a classic illustration of the current tension between police officers who are carrying out their duty to prevent crime and members of communities who may have experienced police misconduct.

In this case the police did their job well in protecting the public against possible crime — and they violated no constitutional right of defendant while doing so. It would be a travesty to permit the criminal here to suppress evidence of his criminality. Despite the police officers’ gilding of their observations to make them appear more incriminatory than they were, the unvarnished evidence demonstrates that no right of defendant was violated.

. . .

As explained in supra, section II.B, the court finds that the car was parked properly and was not impeding traffic and that neither defendant nor Ms. Beniquez had not been smoking marijuana in the car at any time prior to the officers’ arrival.

These findings lead to the inevitable conclusion that the officers did not approach the Pacifica because it was improperly parked or because they detected the smell of marijuana. These “reasons,” the court finds, are part of the officers’ attempt to justify why they approached and detained defendant and his girlfriend — a justification they did not need.

The officers were embroidering the truth. They had sufficient reasonable suspicion to approach the car and detain defendant and his girlfriend without fabricating the smell of marijuana and a parking violation.