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by Peter Moskos

August 28, 2013

This is a big deal

This is far more radical than anything Judge Scheindlin ruled in her well publicized stop and frisk decision.
In a 3-2 decision (People v. Johnson is not long and worth reading in its entirety) the court managed to rule the following unconstitutional:
In a New York City Housing Authority building, which the testifying officer characterized as a "drug-prone" location, the officer observed defendant descending the stairs to the lobby. Upon seeing the police, defendant "froze," "jerked back," and appeared "as if he was going to go back up the stairs," although he never retreated up the stairs. The officer asked defendant to come downstairs, and defendant complied. The officer inquired whether defendant lived in the building, and defendant replied in the affirmative, whereupon the officer asked defendant to produce identification. Defendant immediately clarified that he was visiting his girlfriend, who lived in the building, and informed the officer that his identification was located in his pocket. As defendant moved his hands to retrieve it, the officer's partner grabbed defendant's left arm and pulled his hand behind his back, revealing a handgun inside defendant's coat pocket. The officer seized the gun and placed defendant under arrest.
Seems like good policing to me. This is from the dissent:
Defendant initially told the officers that he lived there. However, when asked for identification, he began to stutter, and changed his story to say that he was visiting his girlfriend. Although defendant stated that he had his identification in his pocket, he began moving his hands "all over the place, especially around his chest area," which the officers interpreted to be threatening and indicative of possession of a weapon. To "take control of the situation" before it could "get out of hand," an officer grabbed defendant's left arm and brought it behind defendant's back, which caused defendant's open jacket to open up further and reveal a silver pistol in the netted interior coat pocket. One officer removed the pistol from the pocket, and another handcuffed defendant.
You can also read the New York Times article.

What are police officers now allowed to do? Where exactly in this arrest did police overstep their bounds? I don't get it. The court said it had a problem not with subsequent stop and frisk, but with the initial questioning!? I cannot fathom (maybe somebody can explain to me) why this isn't covered under what is known as the "common-law right of inquiry." See, for instance, People v. Moore, which limited but defined that right.

I don't see how to downplay this decision and say it's no big deal (which is my usual reaction). If you were trying to get police to stop policing, telling officers they don't have the right to question suspicious (and, in the end, armed) suspects seems like the ideal way to do so.


Dana King said...

I believe stop-and-frisk was abused, but this decision is way too far in the other direction. As you said, this sounds like good police work. I wonder what the judges would liked for them have done.

PCM said...

I've just never heard of a decision that questions the right of police to ask basic questions, the common-law right of inquiry.

Anonymous said...

because if the guy had turned and walked back up the stairs then he would have been arrested for obstruction. three judges got that and two did not.

basically, the law is moving toward a new paradigm such that in situations where police are merely requesting voluntary compliance / consent then the burden is on police to make that super clear up front. that did not happen here. instead police said something that they considered to be a request (if suspect complied) and a command (if he did not). can't have it both ways and courts are getting sick of this fact pattern.

PCM said...

That helps me understand. But... in the court decision, doesn't the majority say it was a request and the suspect complied.

What you're saying makes perfect sense, both in logic and in the understanding the message the court is trying to give (which does make sense). But where in the decision do they talk about the ambiguity between request and command?

Anonymous said...

Seems to me the court is saying that attempting to avoid the police or not speak to them is not suspicious behavior, and therefore not actionable.

The previous comment put it very well; essentially everyone is a suspect, so not engaging in a supposedly voluntary encounter is then actionable.

They also pointed out that the suspect only stopped and did not flee.

It makes sense to me. No way could the police get away with that in a good neighborhood.

Tony M. Seyfi said...

The court noted that "The circumstances herein did not provide an objective credible reason for a level one request for information." How do cops know whether the situation rises to level one to justify further questioning and investigation?

Anonymous said...

When they have RS that a CRIME is being committed, not when they just want to interrogate an unwilling citizen. Being in a building does not give RS for trespassing, and detaining and asking for ID is not legal without RS for a crime. People are getting sick of being assumed guilty and having to prove innocence, against all legal standards. It is like Nazi germany : " Papers please" at every encounter, persoanl questions, and detentions without cause..no wonder the vast majority of the poor hate cops.

PCM said...

But asking for ID is legal, without a stop. And the suspect's lack of a good answer would raise suspicion. Right?

Tony, this is the heart of the matter. As far as I understand it, police need no reason for "level one request for information." My problem is I don't understand what "level one" means (though I think I can guess) and what standard police need to ask for basic info. I thought police can always ask for basic info.

Donald said...

Is the dissent wrong when it mentions the Police role in enforcing trespassing laws in NYCHA buildings? If that's right, then stopping or retreating to avoid police, while it may not raise reasonable suspicion by itself on the street, certainly seems to in this context.

Which is to say, when the crime you're suspected of is being where you aren't supposed to be, wouldn't trying to avoid police fairly raise a reasonable suspicion?

Anonymous said...

Obviously an officer cannot justify his/her actions by what they find but the defendant in this case clearly was acting out of the norm. If someone seems to be retreating when police approach them, and lie about where they live when questioned I think that would make any good law enforcement officer suspicious of the individual.