In the Eastern District of New York, over the last year, judges appear
to setting a stricter standard for police when considering whether or
not to suppress evidence obtained in a warrantless search. In five different
decisions handed down since April 24, 2013, judges have granted defendants'
motions to suppress firearms obtained either through searches incident
to unlawful stops or arrests (those without probable cause), or searches
based on invalid search warrants. The common theme among the cases is
the courts' finding of facts that indicate that police officers testifying
at hearings have been not credible or have been actually misleading in
their representations to the court.
Police, of course, may search, and any evidence recovered is admissible,
pursuant to a valid search warrant. On the other hand, it is fundamental
Fourth Amendment jurisprudence that warrantless searches are presumptively
unreasonable. There are, however, a plethora of exceptions that allow
police officers to search without a warrant. Two of the most common are
searches incident to a lawful arrest and "pat-down" searches,
conducted for police officer safety, during an investigatory stop.
Since 1968, police officers have been able to make investigatory Terry
stops, stopping and briefly detaining a person for investigative purposes,
"if the officer has a reasonable suspicion supported by articulable
facts that criminal activity 'may be afoot, even if the officer lacks
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). For officer safety, a police
officer is permitted to conduct a pat-down of a suspect during such a
Terry stop if "the police officer . . . reasonably suspect[s] that
the person stopped is armed and dangerous."
Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784 (2009).
While an officer is not permitted to search for contraband during a
Terry stop, if, during the pat-down, the officer feels what he believes to be
a weapon he may seize it and immediately arrest the suspect for possession
of a weapon.
United States v. Mims, 237 F. App'x 634, 636 (2d Cir. 2007). Thus, at any suppression hearing,
the burden of the officer would be to be able to offer 1) credible testimony
establishing the articulable facts supporting a reasonable suspicion of
criminal activity and 2) a reasonable suspicion that suspect is armed
and 3) the pat-down conformed with the parameters set down by Terry and
its progeny. Most importantly, a Terry stop is limited to officer safety
and is not license to search for any and all contraband.
Subject to a valid arrest, conversely, an officer may conduct a full search
of a defendant and his immediate area. It is not necessary that the arrest
be for an offense related to any subsequently recovered weapon or contraband.
Hypothetically, if an officer validly arrest a defendant for disorderly
conduct, he may conduct a warrantless search of that defendant. If that
search uncovers drugs or a weapon, that evidence would be admissible.
Thus, at a suppression hearing, an officer must offer credible evidence
that the arrest was valid; that is based on probable cause.
To many defense attorneys, suppression hearings often feel like little
more than pro-forma exercises. At these hearings, police officers testified
to vague and conclusory circumstances that include furtive movements,
high-crime areas, nervous behavior, lack of eye contact and suspicious
bulges in pockets until a court determines that the "totality of
the circumstances" supports reasonable suspicion (or in the case
of arrest—probable cause). For those practicing long enough, there
is the uneasy suspicion that this is legacy of a
United States v. Bayless, 913 F. Supp. 232, 234 opinion vacated on reconsideration, 921 F. Supp.
211 (S.D.N.Y. 1996).
This case presented almost unheard of situation in which a district court
judge reversed himself. Judge Baer, of the Southern District of New York,
held a suppression hearing concerning cocaine that was seized from the
trunk of a defendant's car. The defendant's attorney argued that
the police did not have reasonable suspicion to make a Terry stop of the
After conducting the hearing, Judge Baer decided that the police officers'
testimony was not credible, and found that the stop was not based on reasonable
suspicion; as such, he suppressed the drugs. Without the drugs, the government's
case, which was based entirely on the possession of the drugs, fell apart.
The defendant's case would be dismissed.
Word of the suppression traveled fast. The press got wind of the decision
and soon the public expressed its opinion of the decision. For the most
part, that expression was one of outrage – which, in a media-driven
democracy, led politicians and pundits to express their disagreement and
disappointment with the decision. Talk shows, Sunday political shows focused
on Judge Baer's decision. Judge Baer was a President Clinton appointee,
and the decision was issued in the early part of 1996, still in the shadow
of the disastrous (for President Clinton) 1994 mid-term elections that
saw the republicans retake the House of Representatives. The republican
response was not unexpected.
In an extremely unique chain of events, Judge Baer did something judges
rarely do, he decided to re-consider his opinion and reversed himself.
He was able to save some face by referring to the government's coming
forth with additional evidence, but, in essence, he subsequently ruled
that he overlooked some of the facts, thought about them again, and came
to another conclusion. This time he denied the defendants motion and did
not suppress the cocaine from the case.
While reasonable people strongly debated whether Judge Baer was influenced
by public opinion or came to another decision in spite of the public outcry,
a question that will never be resolved, what should be taken from this
event is that the public was outraged and made its voice heard. Arguably,
defendants and defense attorneys have been dealing with fallout from this
case in suppression hearings for last two decades.
Recently, however, five cases in the Eastern District of New York may have
signaled a shift or new trend, when it comes to suppression hearings and
the police' burden of proof. Judge Raymond Dearie, in
U.S. v Cox; Judge Jack Weinstein, in
U.S. v. Shakeel Wiggins; Judge Roslynn Mauskopf, in
U.S. v. Martese Price; and Judge John Gleeson, in
U.S. v Ronald Mayo and U.S. v. Raymond Jones all have issued decisions mostly in defendants'
favor regarding suppressing the admission of weapons obtained in violation
of the Fourth Amendment.
Mayo, Price and
Jones the courts found the testimony of the officers not credible. The Judges
pointed to conflicting testimony from the officers present at the scene,
inconsistency in individual officer's accounts and purported observations
that strained credulity. In both
Price the Judges were particularly critical about the fact that the officers
who claimed to see what they believed to be a weapon, failed to mention
that fact to other officers on the scene.
Most telling, however, is the fact that the Judges specifically found on
the record that the testifying police officers were untruthful. In Jones
Judge Gleeson stated, "[the officer] falsely denied that he followed
Jones' car with the intention to follow it. He falsely denied that he told
the officers in [the other] car that he was going to stop that car." In
Price Judge Mauskopf stated, "[c]ritically, the Court finds the officers'
observations . . . inherently and transparently false." In Wiggins,
Judge Weinstein held, "[e]vidence] obtained . . . is suppressed because
the judge issuing the warrant had been knowingly misled." Finally, in
Mayo, Judge Gleeson observed, "the first reason [offered by the officer]
was false. . . The second reason provided by [the officer] was nonsense."
These decisions are important, not just for the individual defendants whose
cases, particularly possession cases, often become impossible to prosecute
if improperly obtained evidence is suppressed, but also for defense attorneys
in general. The decisions may perhaps be signaling a shift and, like in
Bayless case, it may be a shift predicated on public opinion. Unlike Bayless,
there is no public outrage at these suppression decisions. Instead the
fodder of Sunday morning talk shows have been focused in another direction
in the recent past leading up to these decisions: the policy known as
"stop and frisk" implemented by Former New York Mayor Bloomberg
and Police Commissioner Ray Kelly.
In August of 2013, Judge Shira Schiendlin, in a much publicized case and
decision, found New York City liable "for the violation of plaintiffs'
Fourth and Fourteenth Amendment rights" under the stop and frisk policy.
Floyd v. City of New York, 959 F. Supp. 2d 540, 667 (S.D.N.Y. 2013), appeal dismissed (Sept. 25,
2013). Judge Scheindlin's exhaustive analysis pointed out not only
on the dearth of reasonable suspicion to make these stops, but also on
the disturbing racial disparities in those who got stopped and frisked.
She found that 90 percent of those stopped are suspects of color, African-American
or Latino, even though these groups make up a little over 50 percent of
the New York's population. Newly elected Mayor DeBlasio gave his tacit
approval to the decision by stating the City would accept Judge Schindlin's
decision and not appeal.
So are times changing? Has public opinion, and thus political and judicial
policy swung in the other direction? The City's policy, now found
unconstitutional and disavowed by the current administration, has perhaps
left a mark in the minds of judges. The apparent public acceptance of
the EDNY judges, decisions, without any hint of protest, may indicate
a mark left on it as well.