November 8, 2017

Pardalis & Nohavicka Criminal Law Update

Pardalis & Nohavicka Criminal Law Update: Arresting Officer’s Hunch Correct, But Search Was Not

“Patrol gives the gift of proper perspective.”  [Lt. Dan Marcou, NYPD]

Police rely heavily on instinct. In this week’s case, the police officer had a hunch that an individual was armed.  He was right. But the hard truth is that a police officer's fear for their safety is not dispositive of whether contraband was properly seized.

The Officer saw Hassan C. carrying an empty bottle of booze and told him to stop.  Hassan, continued to walk away from the Officer despite his commands to walk to him and was moving his hands a lot. Hassan exclaimed that he could not be stopped because he did not do anything wrong. So, the Officer approached Hassan and smelled the strong odor of alcohol coming from his breath, and saw that he was unsteady on his feet and slurred his speech. The Officer frisked Hassan and recovered a folding knife (more than 4” blade) from his pants pockets because, as he testified, he feared for his safety. Hassan explained that he had to protect himself: “I got jumped the other day."  The Officer continued his search and recovered four bags of marijuana from his left front jacket pocket. Hassan was then placed under arrest.

Hassan’s lawyer argued that the stop was illegal. At a hearing the Officer testified that he was in fear of his safety when he frisked Hassan. The Court ruled that the Officer’s hunch alone was insufficient for a frisk. The Court suppressed the knife and the weed.

The rule is that the detaining officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed and dangerous. In this case, Hassan was merely breaking New York’s Open Container Law, a violation, not a crime. Committing a violation even with the Officer’s fear was not enough to warrant a frisk.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2017/2017_51478.htm

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