Gun Conviction Buckles Under Stop and Frisk
(CN) - Concluding that police had used illegal stop-and-frisk tactics to seize a loaded handgun from a man in the projects, a New York appeals court ordered suppression of the evidence.
The ruling came down with two weeks to go until Primary Day in New York City. Stop and frisk, one of the more controversial policies embraced by the outgoing Mayor Michael Bloomberg, has been a rallying point for hopeful candidates.
All of the Democrats vying for Bloomberg's seat have vowed to either curtail or abolish the practice that a federal judge recently slammed as "indirect racial profiling."
Though supporters of the practice claim that it has led to a dramatic drop in crime, skeptics say there are another of other factors in play.
Indeed, the NYPD's latest data shows that the drop in the city's murder rate has coincided with a steep decline in the number of stop-and-frisk encounters that followed recent public scrutiny.
Jeffrey Johnson had been arrested on weapons charges when the practice was still going strong.
Two police officers patrolling a New York City Housing Authority apartment building said they began questioning Johnson when he caught sight of them and "froze" on the staircase he was descending.
The officers said Johnson's demeanor outed him as a trespasser, and that he initially identified himself as a resident only to then say he was actually visiting his girlfriend, who was a tenant.
During the encounter, Johnson was allegedly moving his hands near his chest, prompting one of the officers to grab his arm and pull his hand behind his back, revealing a loaded handgun in his coat pocket.
Johnson said he had only been trying to get his Ida and moved to suppress the evidence. A judge in the Bronx refused and ultimately convicted him of attempted criminal possession of a weapon and ammunition.
Reversing Tuesday, a divided five-justice panel of the Appellate Division's First Department said "the police action was impermissible at its inception."
Police officers may question an individual "where there is an 'objective, credible reason, not necessarily indicative of criminality,' to initiate the level one encounter," the unsigned opinion states.
Johnson's conduct, however, "did not provide an objective credible reason" for the officers to question him.
The officers said their suspicions were heightened because of a history of crime and drug dealing in the building, but the appellate majority rejected that explanation.
"Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information," they wrote.
"Nor does an individual's desire to avoid contact with police - even in a high-crime neighborhood," they added.
Though Johnson's evasive answers and furtive hand movements would have independently justified the stop and frisk, those events had been the product of an illegal stop.
Justices Karla Moskowitz, Sallie Manzanet-Daniels and Helen Freedman made up the majority.
Justice Richard Andrias wrote the dissent, joined by Justice Paul Feinman, in which they said that Johnson's hesitation on the staircase justified the interrogation.
At that point, Johnson's "abrupt, halting, and furtive movements provided the police with an objective credible reason for asking defendant if he was a resident of the New York City Housing Authority building, and subsequent events led to a lawful stop and frisk," Andrias wrote.
He added: "When defendant said that he lived in the building, the request to see his identification was reasonably tailored to address the officer's suspicion that defendant was trespassing. When defendant changed his story, stuttered, and began moving his hands 'all over the place, especially around his chest area,' although he had said his wallet was in his pocket, the officers reasonably interpreted defendant's actions to be indicative of possession of a weapon, and reasonably suspected that they were in danger of physical injury. This provided an objective basis for the frisk that resulted in the recovery of the loaded pistol concealed in defendant's interior jacket pocket."
The majority noted that Johnson had never actually retreated after hesitating on the staircase and that he complied with the officers' request to approach them.
In calling for an overhaul of stop and frisk earlier this month, U.S. District Judge Shira Scheindlin noted that police had made 4.4 million stops between 2004 and 2012, and that 80 percent of these stops were of blacks or Hispanics.
"In 98.5% of the 2.3 million frisks, no weapon was found," she wrote.