Published on:

Defendant Claims Illegal Search and Seizure by Police


On October 10, 1979, three uniformed police officers in a marked police car approached the vicinity of Seventh Avenue between 143rd and 144th Streets. At that time, one of the police officers saw the defendant at 144th Street and Seventh Avenue, a known area for drug crimes. A New York Drug Crime Lawyer said the defendant was known to the police officers as he was arrested several times for marijuana possession. The officers had been instructed to keep that particular block clear of drug trafficking. In compliance with the orders, the police officer ordered the police vehicle to stop and called to defendant so that he might ascertain his address and instruct him to leave the area in the event that he did not reside in it.

The police officer called the defendant and asked him to approach the police car. The defendant walked toward the car, stopped at a distance of 15 feet away and refused to come closer. The police officer assured the defendant that he only wanted to talk with him, but the defendant refused to comply. In this instance, the police officer then emerged from the police car and the defendant, began to run. Neither officer drew his own gun at anytime. When the police officers were within ten or fifteen feet from the defendant in a schoolyard, the officers observed that the defendant reached into his waistband and threw an object to the ground. The object, a revolver, was retrieved. A New York Drug Possession Lawyer said the defendant was thereafter arrested and charged with two counts of criminal possession of a weapon in the third degree under criminal law.

The defendant filed a motion to suppress the evidence based on the principle on search and seizure that where the abandonment was coerced by unlawful police action for lack of probable cause, the property may be not used for evidentiary purposes.

The Supreme Court denied the motion to suppress.

The Court held that a distinction must be made between an arrest and a seizure incident to a street encounter. In the case of the former there must be a full blown demonstration of probable cause; and where the record is barren of any objective evidence evincing criminal activity thus physical evidence seized must be suppressed. A Nassau Drug Possession Lawyer said here, however, the encounter is initiated by activity occurring on the street, the touchstone becomes the reasonableness of the police activity.

Admittedly, the direction by the police officers to defendant that he wished to speak with him constituted a seizure. When a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. But the court opined that there is a need to evaluate the police conduct in the context of the circumstances which confronted the police to determine whether the police invasion of defendant’s expectation of privacy was reasonably related in scope and circumstance to the situation spelled out by the record. It was stressed that there is no claim that the action of the police was excessive or that it constituted an arbitrary invasion of defendant’s right of privacy. Indeed, there can be no such claim for the intrusion was minimal and was warranted even though at that point there was no indication of criminal activity.

According to the court, everything which followed- police officer’s exiting the police vehicle, defendant’s flight–a highly relevant circumstance in the context of the fact pattern here presented, the chase and defendant’s throwing of the object which turned out to be a gun, flowed from defendant’s refusal to accede to a reasonable police request. Moreover, police had knowledge of defendant’s prior criminal behavior (e.g. cocaine possession) and his presence in the general area where that past criminal activity had been conducted. A Queens Drug Possession Lawyer said the initial unexpected confrontation with the police did not result in any endeavor by defendant to rid himself of the weapon. Accordingly, his flight was a calculated act by which he sought to obtain time so that the gun could be discarded. Thus, the court maintained that defendant’s precipitous act of running away gave the officers probable cause to arrest him.

Stephen Bilkis & Associates with its New York Criminal Lawyer has offices located throughout the New York Metropolitan area. Our New York Criminal Lawyers can provide you legal advice to avoid suppression of your rights.

Contact Information