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Police Sergeant acted reasonably

By petition, the respondent is alleged to have committed an act which, were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree. The respondent is also alleged to be a juvenile delinquent by reason of his alleged violation of Penal Law which prohibits the possession of weapons by persons less than sixteen years of age.

Claiming to be aggrieved by an unlawful search of his person, the respondent has moved to suppress the introduction of tangible property recovered by police officers on the date of his arrest.

With respect to tangible evidence, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct, while the criminal respondent bears the ultimate burden of proving that the evidence should be suppressed.

In order to determine whether evidence should be suppressed this Court conducted a hearing at which the sole witness was New York City Police Sergeant. Based upon the credible testimony of the Sergeant, the Court makes the findings of fact and conclusions of law.

The Police Sergeant has been a police officer for 9½ years and he is presently assigned to the 103rd Precinct where he is responsible for supervising school safety officers assigned to New York City public schools located within the precinct. At approximately 12:25 P.M. on May 21, 2004 he received a radio run which reported that a student had been observed with a gun inside of Intermediate School which is located in Jamaica, Queens County. The Police Sergeant and another Police Officer who is the Youth Officer at the Precinct proceeded to the reported location. When the Police Sergeant arrived at the school, he spoke to school safety officers assigned to the school and possibly the principal of the school. The Police Sergeant was informed that the school safety officers had the respondent in custody and he was a student that they said pointed a gun at the classroom, but they did not have the firearm. The Police Sergeant testified that when he arrived at the school, it was in some kind of lock down because he did not observe students to be moving about the hallways which added to the sense of urgency concerning the presence of a gun in the school.

During his conversations with the school safety officers, the Police Sergeant learned that an individual had pointed a — what they believed to be a gun into a classroom, and that a teacher had observed this. The Police Sergeant stated that someone described that the alleged firearm has a slide lock to the rear of the gun which indicated that the weapon was a semi-automatic pistol. While the Police Sergeant was at the school he was approached by a teacher who was with an individual who the Police Sergeant subsequently learned was the respondent.

According to the Police Sergeant, the respondent told him that some girls took the gun. The Police Sergeant testified that he was suspicious because respondent had approached him with this information and because the information was not consistent with other information he had acquired during his investigation at the school. The Police Sergeant then asked the respondent to look in his bag on his back and as he asked the respondent, he tapped the bag which was on his back. When he tapped the respondent’s knapsack he felt what he believed was a firearm and it felt like a gun, a nine millimeter. The Police Sergeant then proceeded to open and search the respondent’s knapsack and recovered what appeared to be a handgun but, upon inspection, proved to be an air pistol that resembled a semi-automatic pistol. The respondent was then arrested for mischief charged in the petition.

In deciding whether the police acted properly in this criminal case, the inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances. The touchstone of any analysis of a governmental invasion of a citizen’s person under the Fourth Amendment and the constitutional analogue of New York is reasonableness.

The events in this case indisputably involved an emergency situation inside of a public school and the Police Sergeant Collins and another Police Officer were responding to a report of a gun in a crowded public school. Based upon the information then known to the Police Sergeant, he had a reasonable basis to conclude that the respondent had not told him everything that he knew about the gun or its whereabouts. The Police Sergeant than asked the respondent whether he could look inside of his knapsack and as he did so he simultaneously tapped the bag and felt the outline of what he believed was a firearm.

The issue here is whether the Police Sergeant acted reasonably when he tapped the outside of the respondent’s knapsack. In a similar case, the Court of Appeals held that an investigative touching of the outer surface of a book bag fell within a class of searches which are far less intrusive than searches which would require the application of the reasonable suspicion standard. The Court applied the balancing process set forth in another similar case and held that the respondent had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for the purposes of learning something about its contents. In addition, the Court stated that in the balancing process, prevention of the introduction of hand guns and other lethal weapons into New York City public schools such as the said high school is a governmental interest of the highest urgency. The extreme exigency of barring the introduction of weapons into the schools by students is no longer a matter of debate.

While the Police Sergeant cannot be said to have had reasonable suspicion as to the respondent at the time that he tapped the outside of the knapsack, there may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of such reasonable suspicion.

The facts here establish that this is such a case. The respondent clearly had a diminished expectation of privacy in the contents of his book bag which were undoubtedly subject to a search by school officials upon his entry to the building. Balancing that expectation of privacy against the information known to the Police Sergeant, including a report of a gun inside of a crowded public school and the respondent’s seemingly incredible story concerning a gun, and the risk that a gun in the school posed to the life and safety of students and staff, the facts in this case presented truly exigent circumstances which were not present in another similar case, and the Court concludes that the Police Sergeant had sufficient justification for the investigative touching of the outside of the respondent’s knapsack. Once the Police Sergeant felt the outline of what he believed to be a gun in the knapsack he had a reasonable criminal suspicion that the respondent possessed a weapon which justified the search of the knapsack.

Accordingly, the actions of the Police Sergeant did not violate the respondent’s rights and the motion to suppress the air gun is denied.

When a young person possesses a weapon, his or her ability to control anger is lesser than that of someone who is empty handed. If your kid got himself in a possession of a weapon case, seek for the Queens County Gun Crime Lawyer or the Queens County Possession of a Weapon Attorney from Stephen Bilkis and Associates.

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