NY: Cursing police officer didn’t justify disorderly conduct arrest and finding 25 bags of crack

Defendant with 25 bags of crack on him cursed a police officer for about 15 seconds for “harassing” him, and that led to an arrest for disorderly conduct and discovery of the drugs. Defendant was not legally disorderly justifying the arrest. People v Baker, 2013 NY Slip Op 00782 (N.Y. February 7, 2013):

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant’s abusive statements were directed exclusively at a police officer — a party trained to diffuse situations involving angry or emotionally distraught persons — further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; Tichenor demonstrates that this is not the case. But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the “public harm” mens rea necessary to support a disorderly conduct charge.

After consideration of all relevant factors, we conclude that defendant’s arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element. Because the arrest was unlawful under our long-standing precedent, we have no occasion to address defendant’s First Amendment arguments.