In the Eastern District of New York (EDNY), over the last year, Federal Judges appear to be setting a stricter standard for police when considering whether or not to suppress evidence obtained in a warrant-less search. In five different decisions handed down since April 24, 2013, judges have granted defendants' motions to suppress firearms obtained either through searches incident to unlawful stops or arrests (those without probable cause), or searches based on invalid search warrants. The common theme among the cases is the courts' finding of facts that indicate that police officers testifying at hearings have been not credible or have been actually misleading in their representations to the court.
It is fundamental 4th Amendment law that police may conduct a search, and any evidence recovered, pursuant to a valid search warrant, is admissible. Furthermore, warrantless searches -- or searches without a search warrant -- are presumptively unreasonable. There are, however, a plethora of exceptions that allow police officers to search without a warrant. One such exception is the "pat-down" searches -- otherwise known as a Terry stop -- which is conducted for a police officer's safety, during an investigatory stop.
Since 1968, police officers have been able to make Terry stops, and stopping and briefly detaining a person for investigative purposes, "if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot, even if the officer lacks probable cause." For officer safety, a police officer is permitted to conduct a pat-down of a suspect during such a Terry stop if "the police officer... reasonably suspect[s] that the person stopped is armed and dangerous." Most importantly, a Terry stop is limited to officer safety and is not license to search for any and all contraband.
To many criminal defense attorneys, suppression hearings often feel like little more than pro-forma exercises. At these hearings, police officers often testify to vague and conclusory circumstances that include furtive movements, high-crime areas, nervous behavior, lack of eye contact and suspicious bulges in pockets until a court determines that the "totality of the circumstances" supports reasonable suspicion (or in the case of arrest -- probable cause).
In stark contrast to this trend in the EDNY, one such suppression decision -- U.S v. Bayless -- comes to mind. In Bayless, Judge Baer, of the SDNY, held a suppression hearing concerning cocaine that was seized from the trunk of a defendant's car. The defendant's attorney argued that the police did not have reasonable suspicion to make a Terry stop of the defendant's car. After conducting the hearing, Judge Baer decided that the police officers' testimony was not credible, and found that the stop was not based on reasonable suspicion; as such, he suppressed the drugs. Without the drugs, the government's case, which was based entirely on the possession of the drugs, fell apart.
Word of this decision to suppress traveled fast. The press got wind of the decision and soon the public expressed its opinion of the decision. Suddenly, the Bayless decision became a hot topic of discussion. For the most part, that expression was one of outrage -- which, in a media-driven democracy, led politicians and pundits to express their disagreement and disappointment with the decision.
Then, Judge Baer did something Judges rarely do, he decided to re-consider his opinion and reversed himself. He referred to the government's coming forth with additional evidence, but, in essence, he subsequently ruled that he overlooked some of the facts, thought about them again, and came to another conclusion. This time he denied the defendant's motion and denied the suppression of the cocaine. Whether Judge Baer was influenced by public opinion or came to another decision in spite of the public outcry is a question that may never be resolved, but, what is significant from this event is that a good portion of the public was outraged by Judge Baer's decision and they let their voices be heard.
Now, fast forward almost 20 years later. Recently, five cases in the EDNY may have signaled a shift or new trend, when it comes to suppression hearings, a police officer's credibility and the government's burden of proof. (U.S. v Cox, U.S. v. Wiggins, U.S. v. Price, U.S. v Mayo and U.S. v. Jones) In all of these cases, federal judges have issued decision in defendants' favor regarding suppressing the admission of weapons obtained in violation of the 4th Amendment.
Specifically, in Mayo, Price and Jones, judges found the testimony of the officers not credible. The judges pointed to conflicting testimony from the officers present at the scene, inconsistency in individual officer's accounts and purported observations that strained credulity. In both Mayo and Price, the Judges were particularly critical about the fact that the officers who claimed to see what they believed to be a weapon, failed to mention that fact to other officers on the scene.
Most telling, however, is the fact that the judges specifically found on the record that the testifying police officers were untruthful. In Jones, Judge Gleeson stated, "[the officer] falsely denied that he followed Jones' car with the intention to follow it. He falsely denied that he told the officers in [the other] car that he was going to stop that car." In Price, Judge Mauskopf stated, "[c]ritically, the Court finds the officers' observations... inherently and transparently false." In Wiggins, Judge Weinstein held, "[e]vidence] obtained... is suppressed because the judge issuing the warrant had been knowingly misled." Finally, in Mayo, Judge Gleeson observed, "the first reason [offered by the officer] was false... The second reason provided by [the officer] was nonsense."
What is most interesting, however, is that unlike the Bayless case, there is no public outrage at these suppression decisions. The talk shows (exponentially many more since 1996) are silent on the issue. Instead, the fodder for talk shows have been focused in another (and opposite) direction in the recent months leading up to these decisions: The policy known as "Stop and Frisk" implemented by Former New York Mayor Bloomberg and Police Commissioner Ray Kelly.
In August of 2013, Judge Shira Scheindlin, in a much publicized case (US v. Floyd) found New York City liable "for the violation of plaintiffs' 4th and 14th Amendment rights" under the stop and frisk policy. Judge Scheindlin's analysis pointed out not only on the dearth of reasonable suspicion to make these stops, but also on the disturbing racial disparities in those who got stopped and frisked. She found that 90 percent of those stopped are suspects of color, African American or Latino, even though these groups make up a little over 50 percent of the New York's population. Newly elected Mayor de Blasio gave his tacit approval to the decision by stating the city would accept Judge Scheindlin's decision and withdrawal the appeal.
So what do we have here: an increased number of decisions to suppress, but fewer incidents of public displeasure with those decisions. So are times changing? Has public opinion, and thus political and judicial policy swung in the other direction? The city's recently terminated "Stop and Frisk" policy, now found unconstitutional and disavowed by the current administration, has perhaps left a mark in the minds of judges. The apparent public acceptance of the EDNY judges, decisions, without any hint of protest, may indicate a mark left on it as well.
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This article was written by Steven Brill and James Healy of Sullivan Brill, LLP. If you like what you read, and would like to follow the firm Sullivan Brill, LLP, please "like" our Sullivan Brill, LLP Facebook Page. You can also feel free to email Steve at steven.brill@sullivanbrill.com or James at james.healy@sullivanbrill.com.