{"id":7359,"date":"2012-06-28T14:17:15","date_gmt":"2012-06-29T00:06:16","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-06-28T14:14:16","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=7359","title":{"rendered":"NY1: NYPD frisk of juvenile was without factual basis"},"content":{"rendered":"

Stop and frisk should not be taken lightly. Even crediting the officer\u2019s testimony, this stop and frisk was completely unjustified. The trial court\u2019s order permitting it \u201cbroadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.\u201d In re Darryl C.<\/a>, 2012 NY Slip Op 05118 (1st Dept. June 26, 2012):<\/p>\n

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual’s involvement in criminal activity (CPL 140.50[1]; People v De Bour, 40 NY2d 210, 223 [1976]) and then “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (CPL 140.50[3]; People v Batista, 88 NY2d 650, 654 [1996]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, \u00a7 12; US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v Holland (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court’s dismissal of the appeal as “not only unsound jurisdictionally, but erosive of this Court’s role in articulating the law governing police-civilian encounters” (id. at 845). He stated:<\/p>\n

“When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court’s proper function to resolve … This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime” (id.).<\/p><\/blockquote>\n

In a footnote, Chief Judge Lippman made reference to Floyd v City of New York (8 F Supp 2d 417 [SD NY 2011]), in which the United States District Court noted, “[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year” (id. at 422 [internal quotation marks omitted]). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department’s stop-and-frisk program (Floyd v City of New York, 2012 WL 1868637, 2012 US Dist LEXIS 68676, [SD NY, May 16, 2012, No. 08-Civ-1034 (SAS)]).<\/p>\n

While the dissent’s opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14-year-old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court’s ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime. <\/p>\n

The facts herein, even crediting the officer, prohibit the search undertaken in this case. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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