Ed McCarthy on WNYC and National Public Radio Discussing Illegal Searches And Increases in Marijuana Arrests
THURSDAY, APRIL 28, 2011
Ed McCarthy

Ed McCarthy, a Supervising Attorney in the Manhattan Criminal Office, was on National Public Radio and WNYC discussing illegal searches and increased marijuana arrests. Possession of marijuana is now the most frequent misdemeanor charge in New York City, especially in low-income neighborhoods.

"People can't afford to fight a case," McCarthy said, because challenging a charge could mean returning to court eight to 10 more times for the next year and a half.

Alleged Illegal Searches By NYPD Rarely Challenged in Marijuana Cases
By Ailsa Chang
Wednesday, April 27, 2011
WNYC.org

Illegal searches are more common than people realize, but few end up getting challenged in court, law enforcement officials and defense attorneys say.

Checks and balances within the criminal justice system are intended to ferret out improper arrests, but many defendants and their lawyers say they face insurmountable obstacles when fighting marijuana charges – and the alleged illegal searches that sometimes led to them.

More than 50,000 people were arrested in the city for misdemeanor marijuana possession last year – the highest in a decade. And a substantial number of these arrests take place in the police precincts where the most stop-and-frisks occur, which are predominately black and Latino neighborhoods.

More than a dozen men who were arrested in these precincts for misdemeanor marijuana possession told WNYC the police recovered marijuana on them through illegal searches. None of them challenged these allegedly illegal searches in court.

Limitations of Prosecutors as Watchdogs

The District Attorney is supposed to throw out cases based on illegally seized evidence. But only police, not prosecutors, are at the scene of the arrest. So what prosecutors decide to charge a person with depends largely, at first, on what officers reveal in their paperwork.

Under New York state law, a person can be charged with misdemeanor marijuana possession if he or she is smoking or displaying pot in "public view." Each of the men WNYC interviewed said their marijuana was never in public view until police removed the pot from their clothes.

Jeannette Rucker, a supervising prosecutor at the Bronx District Attorney’s Office, heads the Complaint Room, where prosecutors first review police paperwork before they bring formal charges. She reads thousands of police reports about marijuana arrests.

"When an officer charges somebody for 'marijuana open to public view,' when they write in their paperwork that they found it in the defendant’s pants pocket, I have to dismiss it," said Rucker.

Rucker (Photo left) said her office throws out 10 to 15 misdemeanor marijuana cases everyday because the police paperwork states the marijuana was actually not in public view. These cases she chalks up to honest mistakes. But if a cop lies in his report – and fails to mention that the marijuana was actually found in someone’s clothing – Rucker said there’s no way for her office to know that without a further investigation.

That creates a substantial problem for defendants who were wrongfully arrested. Rucker said in most cases, prosecutors don’t even interview arresting officers until after a defendant is arraigned – but she said too many defendants plead guilty right at their first court appearances. Therefore, Rucker said defendants who think they’ve been illegally searched or otherwise improperly arrested have to stand up for themselves right at the beginning of a case.

"If they’re claiming that, 'I had it in my pants’ pocket,' then you hold that officer accountable, you come in and testify, or you tell us something," said Rucker. "You cannot just stay mute and say, 'Oh, I’m gonna take my plea.'"

The Cost of Fighting a Case in Court

But longtime public defenders say fighting a marijuana charge to the end is simply infeasible in most cases.

Marijuana possession is now by far the most common misdemeanor charge in the city. Defense lawyers say if everyone with a marijuana charge actually fought his or her case to the fullest, the already overextended court system would grind to a halt.

"People can't afford to fight a case," said longtime public defender Ed McCarthy (Photo right), who supervises a small staff of Legal Aid lawyers at Night Court in Lower Manhattan.

McCarthy said challenging a charge can mean coming back to court eight to 10 more times for the next year and a half.

"'I have to be home to pick up my kid, I have to get to my job tonight. I have to do a million things other than come back and forth and sit on a bench in a courtroom for six hours to hear that the People aren’t ready or to hear that there’s no courtrooms available,' which is such a common thing here."

McCarthy said therefore most of his clients just plead guilty right away.

Complaints About Alleged Illegal Searches

Last year, 1,142 people told the Civilian Complaint Review Board (CCRB) they were improperly searched during a stop-and-frisk. The CCRB is an independent agency that oversees police misconduct. The police department disciplined three percent of the officers involved in those 1,142 cases. According to the CCRB, the punishment most of those officers got was "instructions" on how to perform a proper search. The most severe discipline – doled out to eight officers – was docked vacation days.

Defense lawyers say these penalties are too flimsy to deter officers from conducting illegal searches.

Harold Crawford, a police officer for almost 30 years in Brooklyn who is now retired, said he would see cops do illegal stops and illegal searches -- and they would lie about it later.

"You could see a kid, walking down a street minding his business – him and his buddy – and out of nowhere, cops just stop, throw these two kids up on the wall, search them," said Crawford.

But Crawford said it's rare to see someone sticking up for his constitutional rights during a stop-and-frisk.

"You gotta remember – when you in these communities, when you’re these younger brothers and sisters walking the streets, when you got four officers surrounding you, telling you, 'Go into your pockets and do this, do that,' we recommend that's not the time to challenge an officer," said Crawford. "For the moment, comply, because all you gonna do by not complying is escalate."

So Crawford said these young men stay quiet as cops go into their pockets, their shoes, even their underwear – where they sometimes find marijuana.

"If police officers policed the Upper East Side of Manhattan the way they do in this community, there would be an uproar," said Robin Steinberg, who directs a legal defense organization in the South Bronx called The Bronx Defenders. "There would be an outcry. It would on the front page of the New York Times tomorrow, and I guarantee you there would be a lawsuit."

Pressure to Make Arrests

According to the New York State Division of Criminal Justice Services, the vast majority of people convicted in New York after a misdemeanor marijuana arrest ultimately walk away with a non-criminal charge called a violation and pay a fine. Even though most misdemeanor arrests turn into lesser charges, a study by the Drug Policy Alliance, an advocacy group, said the city continues to spend more than $75 million a year to keep arresting people for misdemeanor marijuana possession.

Several police officers who asked not to be identified because they didn’t want to get in trouble with their superiors, offered one reason: supervisors like to see arrests – it’s a sign of productivity.

That can put intense pressure on street cops to get results, said Eugene O’Donnell, a former cop and former prosecutor who teaches at John Jay College of Criminal Justice. And he said that’s the kind of pressure that can lead to illegal searches.

"The numbers-driven policing is a concern because officers may – in order to make those numbers – feel pressured to represent things that were true that weren’t true," said O’Donnell. "The department needs to state over and over again – out loud, unequivocally – that you don’t break the law to enforce the law."

Bronx resident Antonio Rivera, who was stopped on the street by police, initially wanted to challenge the improper search in his misdemeanor marijuana case. Rivera said they reached into his pants without his consent and pulled out a small bag of marijuana from his groin area.

Then he found out a misdemeanor drug conviction could cost him some of the financial aid he’s getting as a freshman at DeVry University.

"Even if I tried to fight it, I would probably still get bit for trying to pursue it," said Rivera.

So like thousands of others, he pleaded guilty to a lesser charge – in his case, disorderly conduct. Even though all he had to do was pay a fine, Rivera said he thinks the police only found his marijuana by searching him illegally.

"It makes me feel hopeless, basically, that they could just get away with stuff," said Rivera. "I feel completely powerless because it doesn’t matter – it’s up to them."

In the end, he said, challenging his arrest in front of a judge would have come down to a he-said, she-said game. Ultimately, it would have been his word against the police's.