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Defendant Contends Unlawful Stop and Frisk


Police patrol officers encounter a wide variety of calls for service. Some of these calls are hazardous some are humorous. Some of these calls are somewhere in between the two. That was the case when two seasoned patrol officers in New York responded to a radio call in the early morning hours on August 4, 1979. A New York Criminal Lawyer said the radio operator advised the officers that an anonymous call had come in to the radio call center regarding an Hispanic male with an afro style haircut wearing light blue pants and a light shirt. The description involved his height which was listed as five foot ten inches tall. The caller advised that the subject was concealing a handgun inside a white shirt that he was carrying.

The officers responded to the location and observed several persons at that location, but none of them fit the description that was provided by the radio operator. They began to check the area and noticed the defendant walking on Amsterdam Avenue. He was wearing a light short sleeved shirt and was carrying a white shirt in his right hand. A New York Criminal Lawyer said the shirt that had been described in the radio transmission was a t-shirt, but this subject had on a banlon shirt. The officers determined that it would be accurate to assume that someone observing him from a distance would think that the shirt was a t-shirt. They observed the subject walk up 95th street and stop in front of a building. He walked up the first three steps and began to open the door with his left hand. He was having difficulty with the door, so he set down the white shirt that the informant had stated concealed the gun.

One of the police officers came up beside him and put his hand over the shirt on the ground so that the defendant would not be able to pick it up. He stated that as soon as he placed his hand on the shirt, he could feel that it concealed some type of handgun. The defendant began to struggle with the officer. Both officers were in uniform when the second officer approached with his firearm out. He ordered the man to stop fighting and not to move. The officers discovered that the white shirt contained a .22 caliber handgun. The subject was placed under arrest and was transported to the jail. He filed a motion to suppress the evidence of the gun.

The defendant maintains that he was looking for an apartment that had heat since his apartment did not and he wanted one with heat before winter. Although it was the middle of summer and the officers who arrested him had just come on duty at midnight when they arrested him, he claimed that he was attempting to find an appropriate apartment. He claims that a person who also had an afro hair cut ran past him and tossed the white shirt with the gun in it into the bushes. He stated that he retrieved the gun and was on his way to find a police officer to turn it in to when the officers assaulted him. A New York Sex Crimes Lawyer said he claims that in spite of the fact that the officers who arrested him were in police uniforms, when they approached him, he thought that they were criminals who were trying to rob him. He stated that the arrest did not occur after midnight, but that it took place at about nine at night. He stated that he fought with the officers because they never identified themselves as police officers and he thought he was being robbed. He claimed that the person who discarded the weapon was involved in an altercation in the street in front of a commercial building.

The police officers pointed out that the incident occurred shortly after they came on duty at midnight and could not have occurred at nine at night before they were even on duty. They also point out that there were no commercial buildings in the area of the arrest or even where they observed him before the arrest. They contend that it is unreasonable for anyone to assume that they were criminals attempting to rob them when they were clearly in police uniforms with a marked patrol car. There were no reports of any altercation and there did not appear to be anyone near the location who resembled the description provided by the radio operator with the exception of the defendant.

The defendant also contends that the arrest was illegal because he did not match the description that was provided to the police officers. He is just over six feet tall. A New York Sex Crimes Lawyer said the officers pointed out that eye witnesses are rarely accurate when they estimate a person’s height. They contend that the description was obviously accurate enough for them to identify the subject. The defendant claims that the officers did not have a right to stop him and did not have a right to search him.

The officers contend that the court decision in Terry v Ohio, 1968, provided the authority with which they stopped and frisked the man. When he assaulted the officers, he escalated the encounter and gave them probable cause to arrest him. The precedent case of Terry v Ohio provided officers with the authority to stop and frisk anyone that they can articulate a reason to believe that they may be armed and pose a danger to the officer. In the case at hand, the information that the officers were given specifically stated that the suspect would be carrying a white shirt and that the shirt concealed a handgun. That information in and of itself provided the officers with a reason to believe that the offender was armed. For the officers to ensure their own safety, any reasonable person would take steps to secure the firearm that was presumably inside the white shirt. This information presents all of the necessary elements that are required for the officers to stop and frisk the suspect.

In the trial of the man, he was found guilty of the firearms violation as well as several other charges. The trial jury did not put any faith into his account of the incident or that he did not know that the police officers were members of the New York City Police Department. The trial court convicted him of all charges and he filed an appeal to the Supreme Court. The Supreme Court evaluated all of the evidence and determined that based on the officers’ experience and training that they had reason to believe that the defendant was armed. That means that the officers were justified in the approach that they made toward the subject. There is no evidence that the subject was not able to identify the officers as police officers and his conduct was unacceptable. The Supreme Court determined that the police officers’ actions were justified under the circumstances that were present and that they did not violate the defendant’s rights.

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

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