Appellate Division Majority Agrees With Legal Aid Society
TUESDAY, DECEMBER 09, 2014

In a 3-2 decision, the Appellate Division, First Department, reversed a gun possession delinquency adjudication and ruled that the NYPD illegally searched Legal Aid's fifteen-year-old client Jamal S. Officers from the NYPD stopped Jamal for riding his bicycle the wrong way on a one-way street in the Bronx, frisked him (discovering no contraband), handcuffed him, and transported him to the precinct, where a more extensive search discovered a gun in his shoe. Given Jamal's age, the minor nature of his infraction, and the fact the police had no reason to suspect he was armed, the Appellate Division majority agreed with LAS that the police search at the precinct was unreasonable. Two attorneys from the Juvenile Rights Practice, Raymond Rogers on appeal and Eileen Malunowicz at trial, represented Jamal.




New York Law Journal
Split Panel Rejects Search of Juvenile That Uncovered Gun
By Andrew Keshner
December 8, 2014

A divided Manhattan appeals panel upended a juvenile delinquency adjudication for a teenager found with a gun in his shoe after he had already been taken to a police precinct, ruling the search was unreasonable.

The 3-2 majority of the Appellate Division, First Department, said that Jamal S. should not even have been in police custody for riding his bicycle the wrong way on a one-way street.

But even if holding him on a disorderly conduct violation was proper, removing his shoes could not "be justified as a protective measure" when Jamal had already been searched twice by officers "who had no reason to expect that he had 'anything on him' or otherwise posed a danger," the majority observed in an unsigned opinion.

Justice Richard Andrias (See Profile), who wrote a dissenting opinion, said police were well within their powers to take Jamal into custody and then conduct a search that was reasonable "in scope and manner of execu- tion."

"Had the police failed to properly search appellant before placing him in the juvenile room, one can only imagine the public outcry had [Jamal] shot himself or harmed an officer with the gun secreted in his shoe," he wrote in Matter of Jamal S., 12415, joined by Justice Peter Tom (See Profile).

The majority said it was "inflammatory and unsupported by the record" to suggest the search was needed to prevent Jamal from shooting himself or an officer.

"The dissent's position, if taken to its logical extreme, would call for a full search of any juvenile even temporarily detained in a precinct for any reason. This position finds no support in the Fourth Amendment," said the majority, consisting of Justices Rolando Acosta (See Profile), Leland DeGrasse (See Profile) and Rosalyn Richter (See Profile).

The judges heard arguments on April 16.

Jamal and another individual were taken into custody around 10:30 one night in 2012 after police officers spotted them riding their bicycles against traffic, swerving in and out of the path of oncoming cars.

The officers intended to issue summonses for disorderly conduct. When they asked Jamal for identification, he said he did not have any with him but was 16 years old.

Police took Jamal to the 44th precinct in the Bronx to confirm his identity before issuing the summons. He was searched and handcuffed before being put in the patrol car.

Jamal's companion, a legal adult, was also taken into custody.

At the precinct, Jamal was searched again. No contraband was found in either search.

Twenty minutes after being held at the precinct, Jamal said he was 15 years old. Officer Amadeo Leo testified that he talked with Jamal's mother on the phone around 11 p.m.

Though Jamal's mother said she would pick him up, Leo told her to come the next morning.

"The record discloses no reason for such delay in releasing Jamal to his mother prior to the search in question," the majority noted.

When Jamal was put in the juvenile room, he was told to remove his belt, shoelaces and shoes in accordance with lodging protocol.

John Dooley, the officer in charge of the procedure, testified he did not have a reason to expect Jamal had any weapon on him. As he complied with the order, Dooley saw the gun in Jamal's right shoe and arrested him.

In August 2012, Bronx Family Court Judge Peter Passidomo (See Profile) refused to suppress the gun and in November 2012 adjudicated Jamal a juvenile delinquent.

Passidomo said Jamal committed actions that, if an adult, would have constituted second-degree criminal possession of a weapon.

On Thursday, the First Department majority reversed Passidomo, granted suppression and dismissed the delinquency petition.

'Temporary Detention'

The majority noted that Family Court Act §305.2(2) said officers were authorized to take minors under age 16 into custody without a warrant in cases where the officer "may arrest a person for a crime." The majority said "crime" is defined only as felonies and misdemeanors—not violations.

Because the Family Court statute did not categorize disorderly conduct as a crime, the warrantless arrest here was prohibited.

"Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so," the majority found.

The dissent invoked cases for the proposition that the inability to produce identification "justified the police conduct." But the majority said the cases did not apply and even if they did, the search at issue was unreasonable.

When Jamal was in the juvenile room, he was in "temporary detention" as opposed to arrest—a level of custody where only frisks were necessary, not full-fledged searches. The shoe removal was "far more intrusive than a frisk or a patdown," the majority ruled.

"Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes," the majority said, adding that adherence to an alleged standard procedure did not cure an unreasonable search. "The standard of reasonableness still applies."

In dissent, Andrias said as far as compliance with the Family Court Act went, Jamal lied about his age and gave the officer "reasonable justification" to believe he was legally an adult. Moreover, he said, there was probable cause that an offense had been committed.

Turning to the questioned search, Andrias said the majority did not show why the rules to remove belt, laces and shoes were unreasonable or breached legitimate expectations of privacy. Andrias noted the U.S. Supreme Court allowed subsequent searches at a place of detention even after pat-downs may have happened at the arrest.

Moreover, "the state has a significant interest in preserving life and preventing suicidal acts of its detainees, and the legitimate ends of a detainee safety search are broader than a search incident to a lawful arrest."

Raymond Rogers, a staff attorney in the Legal Aid Society's Juvenile Rights Practice, represented Jamal. "We are very happy with the decision of the majority and agree the search was unreasonable," he said.

Rogers stressed that Jamal was only in police custody for riding his bicycle against the flow of traffic­—"not because he was being held for any serious offense."

Assistant Corporation Counsel Tahirih Sadrieh appeared for the city.

"We are disappointed in the result and are reviewing the court's decision," said Law Department spokeswoman Kate O'Brien Ahlers.