Posted on 03/28/2016 8:09:47 PM PDT by Behind Liberal Lines
An appeals court set aside a man's conviction for weapons possession after concluding that his arrest was premised on nothing more than the defendant looking in the direction of police as he walked in a "higher-crime" area of Buffalo.
Under People v. De Bour, 40 NY2d 210 (1976) and People v. Hollman, 79 NY2d 181 (1992), courts have established that police must have some objective, credible reason for initially approaching a defendant and requesting information from them, the Appellate Division, Fourth Department, wrote.
Yet the judges said in People v. Savage, 13-02055, that police lacked that "particularized reason" when they said Damone Savage caught their attention as he and another man walked along a street in Buffalo. One of the arresting officers said he noticed Savage "staring" at him and his fellow officer as they made a traffic stop in a parking lot across the street from where Savage and the other man were walking. The officers said they turned the patrol car around, came up behind Savage and the policeman in the passenger side asked, "What's up, guys?" The officer said Savage did not respond, but put his head down and started walking faster.
The officer said he then saw Savage drop a holster on the ground and after the policeman left his vehicle, he picked up the holster and began following Savage on foot. The officer said he then saw Savage discard a handgun into a bush.
The 5-0 Rochester-based court said they did not agree with prosecution claims that the officer's statement to Savage and his companion of "What's up, guys?" was merely a "friendly greeting" that did not constitute a request for information.
Even before that, the court said, the officer's statement that he became interested in Savage based on the defendant "staring" at him as he and his partner were engaged in the police stop across the street did not constitute a proper ground to initiate the encounter.
Without "any indicia of nervousness, evasive behavior, or other movements in response to seeing the police," the act of Savage "staring" at the officer was insufficient to arouse the officer's interest in Savage's activities, the court said in an unsigned ruling.
"Here, beyond the fact that defendant had stared at the police in a 'higher-crime area' while continuing to walk down the sidewalk, the officers testified to no further observations of defendant or the other men that draw their attention," the court wrote.
It added, "to the extent that the court found that defendant displayed any nervous or evasive behavior upon initially seeing the officers, we conclude that such a finding is unsupported by the record."
The court went on to note that the officers were not responding to any dispatch naming Savage or his companion as suspects in a particular crime. In addition, it said that courts have found a defendant's mere presence in a higher-crime area, without other indications of suspicious behavior, is not enough to justify a police stop such as the one made on Savage.
Because it concluded that the police's interest in Savage was unjustified from its inception, the Fourth Department said "every subsequent stage of the encounter" was invalid.
It ruled that Acting Erie County Supreme Court Justice Russell Buscaglia was in error when he did not suppress the handgun and other evidence police said they seized from Savage after they approached him when he attracted their attention.
The appeals court suppressed the gun and statements Savage made to authorities, dismissed the indictment and sent the matter back to Erie County Supreme Court under CPL 470.45.
Reckless eyeballing?
“The 5-0 Rochester-based court said they did not agree with prosecution claims that the officer’s statement to Savage and his companion of “What’s up, guys?” was merely a “friendly greeting” that did not constitute a request for information.”
The hastily discarded holster and gun should have been a give-away he was a wrong guy, though. I don’t think I read any other interaction? What difference does all that other horse crap make? Does this mean if a cruiser is driving behind a car and the driver guns it and runs through a red light, the cops can’t give chase cause they made the poor guy nervous? WTF?
does he get his weapon & holster back ?
No. It says the police can't pull the guy over simply because they didn't like the way he looked at them.
“does he get his weapon & holster back ?”
...only if he’s an illegal alien...
“No. It says the police can’t pull the guy over simply because they didn’t like the way he looked at them.”
They didn’t pull him over. Or stop him from walking. Or do anything to him.
I’m reminded of the men who stared at goats.
That man, stare!
OTOH, just talking to the guy was not a bad thing - the fact that he decided to discard some evidence of a problem in front of them speaks volumes.
Not every 'questionable stop" by cops is actually an invasion of a person's rights.
PS Just listened to Zappa's source of your tag name yesterday.
So cops’ intuition is no longer allowed? Smart.
Common law right of inquiry. This sounds like a very bad decision if the arrest happened the way it was reported.
“The officer said he then saw Savage discard a handgun into a bush.”
Sounds like the cop was right.
“Common law right of inquiry. This sounds like a very bad decision if the arrest happened the way it was reported.”
Indeed.
Were the cops goats?
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