Published on:

Defendant Contends Pat Down Was Illegal

Police officers are required to operate under strict adherence to the laws of the state. That means that every time that a police officer comes in contact with a citizen, they are required to operate under certain rules. A New York Criminal Lawyer said these rules are mandated in the United States Constitution, state laws, federal laws, local ordinances, and case law. In order to determine if the officers have overstepped their authority under the law, it is often critical that a defendant hire a good criminal attorney to represent their side.

The rules of search and seizure and admissibility of evidence can be very complicated and they are often argued in a court of law. A New York Criminal Lawyer said each case is different, and each case requires that the persons who are affected by the conduct of police officers on the street are well represented. One case that illustrates this issue occurred in New York on May 14, 1985.

Two patrol officers were patrolling the area of Eighth Avenue around 136th street. It was in the early morning hours of about 2:30 a.m. when they were flagged down by a well- dressed man who was standing beside the road. When they talked to him, he told them that he had been leaving a bar in the area when he noticed a man in front of the bar with a pistol tucked down the front of his pants. The man described the pistol as a small revolver that was commonly referred to as a snub nose. He stated that it was black in color and was in the front of the man’s pants. The complainant was especially concerned because he was afraid that the man was considering a hate crime against the homosexual population in the area. The bar that he had been in front of was a bar that catered to the homosexual population. A New York Drug Possession Lawyer said the complainant advised that he had followed the man and his companion as they left the area of the bar hoping to flag down a police officer to have him checked out. He described the man with the gun as a short black male in a white t-shirt and dark blue jeans. He stated that he was in the company of a man in a darker shirt with light blue jeans.

He advised the officers that he had watched them for eleven blocks and that at that very minute they were in the convenience store that was on the other side if the street. Based on this detailed description from a well-spoken, clean cut citizen who had no apparent motives to file a false report, the officers advised their radio operator that they were going to check out the two men who had been pointed out to them by the complainant. Back up officers started toward the location as the officers approached the store. They told the complainant to wait for them across the street.

When they entered the store, they noticed the two men whom the complainant had pointed out at the front of the store with their backs to the police officers. There was one other citizen in the store and the clerk who operated the night shift in the store. The clerk was behind a protective glass wall that extended to the ceiling. The two men who matched the description that was provided by the complainant were in front of that glass wall. The officers had entered the store with their pistols out of their holsters. The officers identified themselves and told the men to put their hands up against the wall. A New York Sex Crimes Lawyer said two back up officers had arrived and they secured the second man who had been described by the complainant as the companion of the man with the gun. The man who had been pointed out as having the gun put his hands on the glass wall, but was fidgety and repeatedly attempted to move off of the wall and put his hands down. This behavior is not consistent with a person who does not have anything to hide. The officer performed a frisk of the subject for weapons by patting down his outer clothing. During this frisk, the man kept moving and would not simply stand and comply. His behavior made the officer suspicious that the man was in fact concealing the weapon farther down the front of his pants than he had otherwise assumed. He reached up between the man’s legs and felt deep in the crotch area of the man’s pants. He immediately felt something heavy and metal. He ordered the man to drop his pants.

When the man dropped his pants, the officer observed that he had a leather pouch tied around his waist under his jeans and outside of his underwear. Inside the leather pouch, the officer located a loaded 38 caliber blue steel revolver. The subject was placed under arrest and was charged with various weapons charges. The defense filed a motion to suppress the evidence because they contend that the search was illegal because it surpassed the boundaries of a stop and frisk search under the mandates of Terry v Ohio, 1968.

In the case of Terry, a plainclothes police officer was patrolling an area when he noticed three men standing on a corner near a convenience store. He noticed that they were dressed in unseasonably warm clothing and that they were behaving in a suspicious manner. One of the men would go look inside the window of the store and come back to the group to talk to the others. The officer approached the men and patted down their outer clothing for his safety. At that point, the officer found a gun. The officer explained in court that he had felt the object that he felt he could identify as a firearm based on his touching the outer garments. The court ruled that officers are permitted to pat down a person’s outer garments for weapons when they feel, based on their knowledge and experience that the person may be armed and the officer may be in danger by not knowing if they are concealing a weapon.

Based on Terry v. Ohio, officers are permitted to pat down the outer garments of a suspect whom they believe may be armed. In this case, the complainant had specifically told the officers that the man was armed and had given a very specific description of the weapon that he was armed with and the location on his body where he had it concealed. However, the defendant filed a motion to suppress the evidence of the gun based on the contention that it was the product of an illegal search and seizure under the Fourth Amendment of the Constitution.

The court evaluated the contention and found that it was without merit. The reasoning behind the court decision to deny the motion was that the complainant had given very specific details. The complainant was not identified to the court because when the police officers left the store, he was no longer on the other side of the street. The officers acted in good faith on information that was clear and accurate. They had reason to frisk and even though the search in this case was more intrusive than the usual frisk, they were within their rights to search further for the weapon.

At Stephen Bilkis & Associates with its search and seizure lawyers there are convenient offices throughout New York State and Metropolitan area. Our gun crime attorneys can provide you with advice to guide you through difficult situations. Hiring a criminal Lawyers can prevent you from losing precious time with your family.

Contact Information