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CD player was recovered from the left pocket


By petition filed, a juvenile is alleged to have committed acts which, were he an adult, would constitute the crimes on criminal possession of a weapon in the third and fourth degrees and possession of pistol or revolver ammunition.

The matter arose from incident where a police officer was on patrol with his partner in an unmarked police vehicle. At approximately 8:30 p.m., the police vehicle was situated at the corner one street, an area of mixed residential and commercial structures, which was well-lit by street lights and the light coming from homes.

From the police officer’s seat on the front passenger side of the car, he observed an individual walking alone. He observed that the said individual, who apparently had not noticed their vehicle because there had been no eye contact with them. The individual, as observed by the officer, looked like going to cross the street and when he got a quarter of the way he stopped and looked down, reached for his waist to adjust something. The criminal individual then turned and returned to the corner.

Based upon the police officer’s training and experience, when he saw the individual reach for his waist area and adjust something, he believed that he was adjusting something that was possibly a weapon. The police officer also believed that the man may have been adjusting a weapon because of the way he originally came in the street.

The police officer further stated that the man was wearing a waist-length jacket, a white tee-shirt and a hooded sweatshirt. Subsequently, the officers proceeded to drive past as the man continued walking. They also made a u-turn and headed back as they tried to approach the man.

The officers decided to investigate the man further. They pulled their vehicle up alongside with the man. The police officer rolled his window down, took out his shield and from like a car length away from the man, he said the word police and asked the man how was he. At that point, the man lifted his hands up immediately and said he just found it on the corner.

Then, believing it likely that the man possessed a weapon, the police officer immediately exited the vehicle and went over to where the man was standing.

According to the police officer, when he was about a foot away from the man, he saw where the gun was and where his tee-shirt was over it. He could see an outline and a bulge on his right waist, which he described as the handle of a gun and a little part of the body of the gun. The officer subsequently told the man to relax and lowered his hands.

The police officer then put his hand on the right side of the man’s waistband where he had seen the man adjusting something and he felt the handgun which he grabbed from the man’s waistband.

Upon inspection, the officer learned that the gun he recovered was a loaded 9 millimeter semi-automatic pistol which is made of metal and somewhat less than10 inches in length. The officer’s partner, who was standing behind the man, patted him down after the officer recovered the pistol. The man was then placed under criminal arrest and a further search of his person led to the discovery of a portable CD player in his left coat pocket.

Based on criminal records, any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. Therefore, the criterion of any analysis of a governmental invasion of a citizen’s person under the fourth amendment and the constitutional analogue of the city is reasonableness.

The court also cited previous related case where the decision, in which the court of appeals set out a four-tiered framework representing the degree of permissible warrantless police encounters with citizens in a public place and which correlates the degree of the officer’s objectively credible belief with the permissible scope of the officer’s intervention, is applicable to this case.

Sources revealed that the police may approach an individual for the purpose of requesting information the least intrusive level of police inquiry, in the absence of any indication of criminality, provided that there is an objective and credible reason for doing so. Further, a request for information is a general, nonthreatening encounter in which a criminal individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. If the individual is carrying something that would appear to a trained officer to be unusual, the police officer can ask about that object. While an officer may not forcibly detain a person as part of a request for information, an officer may request that a person stop so that information can be requested.

Moreover, the police officers may stop an individual without the use of force, for the purpose of questioning that person where there is a founded suspicion of criminal activity. In addition, the right of the officer to stop a person for questioning necessarily entails an interruption with the individual’s movement. However, a brief stop for the purpose of questioning has been found not to constitute a seizure under the fourth amendment or the constitution.

The criminal court then found that the conduct of the police officer and his partner was entirely reasonable and lawful. Further, the actions of the officer and his partner in pulling their unmarked vehicle next to the man who was walking were based upon their observation of the man having twice stopped walking and his adjustment of something in his right waistband area. While the detective did not testify that he initially observed a bulge in the man’s waistband area, which would have been considered a telltale of a weapon, it is generally recognized that an object stored in the waistband is most likely to be a weapon, and the fact that the officer twice observed the man stop walking and look down as he adjusted something in his waistband in an attempt to secure or secrete an object strongly suggested the presence of a weapon, justifying more disturbing action by the officers.

The court also stated that the observations of the officer justified at the very least of common-law right of inquiry based upon a founded suspicion of criminal activity, and justified the officers’ pulling their vehicle alongside with the man for the purpose of making inquiry. While the testimony establishes that a portable CD player was recovered from the left pocket of the man’s jacket, the officer’s testimony establishes that he was focused on the man’s adjustment of an item on the right side of his waistband.

Moreover, after the officer asked the man, the man reflexively lifted his arms and stated that he was in possession of something he found on the corner which revealed the outline of a pistol on the right side of man’s waistband under his white tee-shirt, the officers lawfully recovered the gun from his person which provided probable cause to arrest him for possession of the firearm.

Consequently, as the court found the actions of the officers was lawful and the pistol was properly recovered from the man, the court denied the man’s motion to suppress the pistol.

It is your right to obtain your legal counsel and retain your constitutional rights. If you get arrested for a gun related offense, you can seek assistance from the Queens County Arrest Attorney. But if you opt to hire the Queens County Possession of a Weapon Lawyer from Stephen Bilkis and Associates, they will be pleased to provide you with legal representation.

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