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 probable cause." 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 defendant's car.
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.
Specifically, in 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 Mayo and 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 Judge Baer's 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.