New York Criminal Lawyer Blog
Search and seizure incidents, especially those that involve gun crimes or other weapons usually come down to issues of legal precedent. A New York Criminal Lawyer that means that officers have only seconds to decide what their actions are going to be. The courts have months to dissect these actions and make determinations of what the officer should have done in that second or two decision. Because of this, it is not unusual for seizure of weapons to be ruled illegal and excluded from court under the Exclusionary Rule. The Exclusionary Rule states that any item, person, or other object, which is seized by illegal means, is excluded from court. Any item, person, or other evidence that is implicated following the illegal act is also inadmissible in court because it is fruit of the poisonous tree of the illegal means.
In some situations, the rulings do not agree with the law. In some situations, the rulings are completely unrealistic. In both of these circumstances, the court of appeals is called in to correct the injustice. The case at hand is one of those cases.
A police patrol officer was on patrol in Nassau County, New York and observed a subject intentionally impeding the normal flow of traffic. The officer watched as the man turned to walk away. He saw a clip in the man’s back pocket and a metal portion of some object sticking out of the top of the pocket. The officer knew based on his knowledge, experience, and training as a law enforcement officer that the object was either an illegal gravity knife, or an illegal firearm.
The officer turned his car around and attempted to stop the man. A New York Sex Crimes Lawyer said the man continued to walk away without turning around. The officer told him to stop and the man continued walking. At that point, the officer reached forward, snatched the weapon out of the man’s pocket, and placed him under arrest. The object turned out to be an illegal gravity knife and no gun crime had been committed. However, the subject was placed under arrest for the illegal gravity knife. He was placed in the back of the patrol car and transported to jail. On the way down the road, the man stated that he only had the knife because he was afraid that someone he knew was trying to kill him.
The subject was charged with criminal possession of a weapon in the fourth degree and unlawful possession of a knife. He made a motion to suppress the evidence of the knife and any statements that he made to police because he stated that the officer’s search of his person was an illegal search. His contention is that the officer had no right to take the knife from his pocket. He contends that the officer could not have known that the object in his pocket was an illegal knife.
A Mapp/Dunaway hearing was held which looks into the allegations of illegal searches and seizures as well as the admissibility of the statements. The judges stated that the police officers action of taking the knife from the pocket was not justified because the officer testified that he had taken the weapon while the subject was walking away. The officer testified that the weapon had placed him in fear for his safety. A Nassau Sex Crimes Lawyer said the judge ruled that the officer was not in fear of his safety because he did not have his gun drawn. This is a ridiculous statement. A police officer would not have a job if he or she pulled their gun out every time that they were placed in fear. Besides that, had the officer had his gun in his hand, he would not have had a hand to remove the weapon from the defendant without using force. The judge, however, ruled that the officer was not in fear and that he should have stopped the subject and spoken to him to see if he would make furtive actions toward the weapon. Only then should he have frisked the man and seized the weapon. The reality check for this decision is that if the man had reached for the weapon, he might have been killed by the police officer.
On appeal, the state won a reversal of that judge’s opinion based on the facts stated above. It was determined that the officer took the path of least resistance in this case. He opted to remove the threat of violence to his person without a full Terry Frisk, which would have been more personally invasive than his merely taking the weapon from the man’s pocket. A Queens Sex Crimes Lawyer said the court found that this officer took the necessary steps to deescalate the situation. Had he taken the steps indicated by the judge in the first hearing, there is little doubt that the situation would have escalated and someone likely would have been injured.
It is understood in most situations that an officer has the right to frisk the exterior of any person’s clothing if they have articulable suspicion. That means that in that officers training and experience, he believes that a crime is afoot. The landmark case that established the police officer’s right to frisk a subject for weapons was Terry v Ohio. That case demonstrated that a police officer given their knowledge and experience may notice that a crime is afoot when an average person may not notice the situation is dangerous. In Terry, the officer noticed three men casing a convenience store. They were wearing clothing that was not seasonal. They were acting in a furtive fashion looking in the windows of the store and returning to discuss things together on the corner. The officer approached them and patted down their outer garments because he suspected that they were concealing weapons. The unseasonal clothing was only useful for concealing weapons and the officer was correct. He retrieved an illegal handgun from Mr. Terry. Mr. Terry appealed and lost his appeal. This landmark case made it possible for an officer to pat down and then remove any item that they think might be a weapon that could injure them. The pat down is for the officers own safety.
The question was that since the officer in this case, did not pat the pocket before removing the knife that the search was an illegal seizure and not protected under Terry v Ohio because the judge did not believe that the officer was in fear because his gun was not drawn. The appeal justice also made note that he did not think that the officer was placed in fear, but that the lack of fear in itself did not preclude the fact that he recognized the item in the pocket to be a weapon and he chose to act in a prudent fashion to remove it. Since he could identify the threat based on the clip and the portion sticking up, there was no need to pat the pocket first. Indeed that act might have elicited a violent reaction from the suspect and lead to someone becoming injured. The seizure of the knife did not involve a physical restraint of the subject and was less physically intrusive, a lesser breach of his privacy, than a frisk.
It is important that anyone who feels that they have been seized illegally for a criminal offense contact a Nassau County Criminal Lawyer. A Nassau County Arrest Lawyer can help protect your rights and help you decide if you want to make any statements.