First Department Overturns Conviction In Legal Aid Case, Faulting Police Questioning
WEDNESDAY, AUGUST 28, 2013

In the New York Law Journal and The New York Times, Steven Banks, the Attorney-in-Chief of The Legal Aid Society, praised the Appellate Division, First Department ruling in People vs. Johnson faulting police questioning and overturning the conviction. Banks told the New York Law Journal that the ruling "stands for the proposition that the Fourth Amendment applies in the New York City Housing Authority, which in light of over-policing in recent years is an important protection" to reinforce. "The mere fact that someone is on Housing Authority grounds doesn't relieve the police of the requirement to have an objective and credible reason to approach somebody," Banks said. Harold Ferguson, a Staff Attorney in The Legal Aid Society's Criminal Appeals Bureau, argued the case.

The appellate panel held that being present in a crime-ridden public housing building did not give the police a right to question the individual. "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," a 3-2 majority of the Appellate Division, First Department, said in suppressing gun evidence. "Nor does an individual's desire to avoid contact with the police—even in a high-crime neighborhood—constitute an objective credible reason for making [an] inquiry," the appellate majority concluded.

Banks told The New York Times that “It is yet another state court ruling that the ends don’t justify the means.”

Media coverage in The New York Times, the New York Law Journal, and the Daily News appears below.




The New York Times
August 27, 2013
Court, Faulting Police Questioning, Overturns Gun Conviction
By MARC SANTORA

Two New York City police officers had been patrolling inside a public housing building in a drug-prone neighborhood in the Bronx when they saw a young man walking down the stairs.

The young man, seeing the police, “froze” and “jerked back” but did not flee.

Did the police have the right to ask the man if he lived in the building?

A state appellate panel, in a split decision, ruled on Tuesday that the police did not have sufficient grounds to make such an inquiry.

Ultimately, the officers’ stopping of the young man, Jeffrey Johnson, led to the discovery that he was carrying a gun, for which he was convicted in 2010 of illegal possession of a weapon.

Tuesday’s ruling, by the First Department of the Appellate Division of the New York State Supreme Court, overturned that conviction.

The ruling also provided a glimpse into the difficult snap decisions police officers must make every day in balancing individual liberty and public safety. In finding for Mr. Johnson, the five-judge panel did not address broader questions about the Police Department’s application of its stop-and-frisk policy, which a federal judge, Shira A. Scheindlin, found unconstitutional two weeks ago.

Instead, the court examined a more basic question: When can the police stop and ask someone a question? And what if that person is in a public housing building? Or a high-crime neighborhood?

The majority’s decision rested in part on a 2006 ruling by the state’s top court that determined that an officer is allowed to request information from a person if there is an “objective, credible reason, not necessarily indicative of criminality.”

Mr. Johnson’s behavior before he was questioned did not meet that standard, the court found.

“It is yet another state court ruling that the ends don’t justify the means,” said Steven Banks, the chief lawyer for the Legal Aid Society, which represented Mr. Johnson.

The Bronx district attorney’s office, which prosecuted the case, declined to comment on the ruling.

The court noted that when the prosecutor asked one of the two officers who stopped Mr. Johnson why they had done so, the officer responded that they are allowed to ask anyone questions in a public housing building, later adding that it was in a drug-prone neighborhood.

When the police asked Mr. Johnson if he lived in the building, he initially said he was a resident, according to court records. However, when asked for identification, he changed his story and said he was visiting a girlfriend.

Mr. Johnson then fumbled about, looking for his identification, leading an officer to take him by the arm, at which point the officer saw a gun under Mr. Johnson’s jacket.

Justices Karla Moskowitz, Helen E. Freedman and Sallie Manzanet-Daniels, voting for the majority, ruled that since the initial questioning was illegal, the gun itself could not be admitted into evidence.

“Although subsequent events led to an otherwise lawful stop-and-frisk, those events were the result of an unauthorized encounter,” the court ruled. In the dissenting opinion, written by Richard T. Andrias and joined by Paul G. Feinman, greater emphasis was placed on the officers’ description of both the initial encounter with Mr. Johnson and his later behavior.

“Defendant’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,” Justice Andrias wrote.

He noted the role that the police play as custodians of public housing buildings, writing that their “duties include keeping the buildings free of trespassers.”




New York Law Journal
Panel Says Police Action Failed to Meet 'DeBour' Standard
By John Caher
August 28, 2013

In the latest foray into the minefield of police-citizen encounters, a deeply divided Manhattan appellate panel held Tuesday that the presence of a suspicious-looking man in a crime-ridden public housing building did not give police a right to question the individual.

"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," a 3-2 majority of the Appellate Division, First Department, said in suppressing gun evidence. "Nor does an individual's desire to avoid contact with the police—even in a high-crime neighborhood—constitute an objective credible reason for making [an] inquiry."

In People v. Johnson, 9779, police officers patrolling inside a Bronx housing authority building encountered the defendant descending the stairs.

Jeffrey Johnson "froze" when he saw an officer and then "jerked back" as if he was going to go back upstairs, according to the decision. But when an officer asked Johnson to come downstairs, he complied.

The officer asked Johnson if he lived in the building and the defendant initally said he did but then said he was visiting a friend. Johnson told police he had identification in his pocket, but began moving his hands "all over the place, especially around his chest." One officer grabbed Johnson's arm, causing his jacket to open and revealing a gun, according to court papers.

Acting Supreme Court Justice Harold Adler (See Profile), presiding over the suppression hearing, declined to suppress the gun after an officer testified that it was his understanding that police can question anyone inside a New York City Housing Authority (NYCHA) building. Johnson was subsequently convicted of gun-related charges at a bench trial before Criminal Court Judge Seth Marvin (See Profile) and sentenced to an unconditional discharge.

On Tuesday, the First Department reversed the suppression ruling and the conviction.

In an unsigned decision, the court said the circumstances of this encounter did not yield the requisite "objective credible reason" for police to request information pursuant to People v. DeBour, 40 NY2d 210 (1976), in which the Court of Appeals identified four levels of police-citizen encounters and the standards for escalating levels of intrusion.

At the first level, a police officer with an "objective credible reason" may approach a citizen and request basic information. The second level permits an officer with a "founded suspicion that criminal activity is afoot" to request more detailed information and ask accusatory questions. To stop and detain a suspect, an officer needs a reasonable suspicion that the individual is committing, has committed or is about to commit a crime. In order to take the suspect into custody, the officer must have probable cause to believe the suspect committed a crime in his or her presence.

In Johnson, the majority, consisting of justices Karla Moskowitz (See Profile), Helen Freedman (See Profile) and Sallie Manzanet-Daniels (See Profile), said in an unsigned opinion that the stairwell encounter did not meet the DeBour standard for an initial inquiry.

The majority relied on the First Department's 2011 decision in Matter of Michael F., 84 AD3d 468, in which officers approached a group of young men on a street corner, followed one of them and asked him what he was doing. In Michael F., the court said the defendant's behavior was ambiguous and amounted to nothing more than his "right to be let alone."

Moskowitz, Freedman and Manzanet-Daniels said police had no more right to question Johnson inside the building than they did to question Michael F. on a public street in a high-crime neighborhood

"Even if defendant's conduct on the staircase can be equated with flight—which is extremely doubtful, given the testimony that he simply stopped descending the stairs upon viewing the officers—there were no equivocal circumstances," the majority said. "The right of police to patrol inside NYCHA buildings does not eliminate the requirement that each level of intrusion be supported by the corresponding level of suspicion."

Justices Richard Andrias (See Profile) and Paul Feinman (See Profile) disagreed in a dissent by Andrias.

Andrias noted that the New York Police Department is the "lawful custodian of NYCHA apartment buildings, and its duties include keeping the buildings free of trespassers." He said that when officers viewed Johnson "in a drug-prone building and saw him freeze, jerk back and begin to retreat," they reasonably suspected him of trespassing—giving rise to a DeBour Level 1 inquiry.

Further, when Johnson changed his story about whether he lived in the building and began moving his hands, "the officers reasonably interpreted defendant's actions to be indicative of possession of a weapon, and reasonably suspected they were" in danger, Andrias wrote. "This provided an objective basis for the frisk that resulted in the recovery of the loaded pistol concealed in defendant's interior jacket pocket."

A Confusing Guide

DeBour, written by Sol Wachtler who was then an associate judge on the Court of Appeals, has set the standard and guidelines for police-citizen encounters for 37 years. But its practical application continues to puzzle the New York trial and appellate courts, and in some cases even the federal courts, resulting in a continuous flow of DeBour-related decisions and opinions.

For example:

  • In December, the Court of Appeals in People v. Garcia, 205, extended DeBour to traffic stops and said police officers must have a "founded suspicion that criminality is afoot" before asking the occupants of a pulled-over vehicle if they have weapons in their possession. Until Garcia, DeBour's applicability to traffic encounters was unclear.
  • In January, Southern District Judge Shira Scheindlin in Ligon v. New York City, 12-Civ.-2274, issued a preliminary injunction after finding the New York Police Department violated the Fourth Amendment rights of individuals who were stopped while entering or leaving Bronx apartment buildings as part of the Operation Clean Halls trespass enforcement initiative.

"There could be a simple way to ensure that officers do not unintentionally violate the Fourth Amendment rights of pedestrians by approaching them without reasonable suspicion and then inadvertently treating them in such a way that a reasonable person would not feel free to leave, Scheindlin wrote. "Officers could, for example, begin

In February, the Appellate Division, Fourth Department, suppressed a handgun discarded by a suspect under police pursuit. In April, the Appellate Division, Third Department, declined to suppress a handgun discarded by a man under police pursuit.

Last year, different panels of the First Department held in separate 3-2 rulings that skitterish teenagers encountered by police in high-crime areas of Manhattan and the Bronx were not behaving so suspiciously as to justify a stop-and-frisk, even though the searches yielded loaded guns in each case. Johnson was argued by Harold Ferguson Jr. of the Legal Aid Society and Robert Sandusky III of the Bronx district attorney's office.

Steven Banks, attorney-in-chief of the Legal Aid Society, said the ruling "stands for the proposition that the Fourth Amendment applies in the New York City Housing Authority, which in light of over-policing in recent years is an important protection" to reinforce.

"The mere fact that someone is on Housing Authority grounds doesn't relieve the police of the requirement to have an objective and credible reason to approach somebody," Banks said. "The ends don't justify the means"

Steven Reed, spokesman for the Bronx District Attorney's Office, said the decision is under review and declined further comment.




NYDaily News
State appeals court throws out Jeffrey Johnson gun conviction in stop-and-frisk case
By Dareh Gregorian
Wednesday, August 28, 2013

A state appeals court has thrown out a gun conviction in a stop-and-frisk case after finding cops didn’t have a legit reason to question the gunman in the first place.

In a 3-2 decision, a panel of state Appellate Division judges dismissed all charges against Jeffrey Johnson, who was found with a gun in his coat pocket in a Bronx housing project in 2007.

Two officers had testified that they questioned Johnson in the lobby of the unidentified NYCHA building because he “froze” when he saw them, “jerked back,” and appeared “as if he was going to go back up the stairs,” court papers say.

One of the officers then asked him if he lived in the building, and Johnson said he did. Then the officer asked to see his ID, and Johnson said he was only in the building to visit his girlfriend as he began to fumble around looking for identification. They then spotted a gun in his coat pocket and arrested him. Johnson — now 51 and working as a security guard — was convicted of attempted gun possession.

At trial, the officers had problems articulating why they’d questioned him.

“It’s a NYCHA building and we’re allowed to ask anybody inside the building,” one of the unidentified cops said.

The appeals court said that’s not true. While not citing Judge Shira Scheindlin’s federal court decision this month ruling that the way the NYPD uses the practice is unconstitutional, they echoed her finding that a person’s mere presence in a drug-plagued location isn’t enough of a reason to question them.