Define That Term #250
The New York Legal Blog Round Up

NY Court of Appeals--No Dice Officer

Gavel2 At issue in Matter of Victor M., 2007 NY Slip Op 07742 was the legality of the seizure and subsequent search of a 15-year-old juvenile that resulted in the discovery of narcotics. 

The defendant was gambling with dice when a Brooklyn police officer came upon him.  The officer decided to issue a summons for the violation of Loitering, but neither the defendant nor his mother, who happened upon the scene, had any identification on them.  Rather than allow the defendant to obtain ID, the officer handcuffed him, took him down to the station, and searched him.

The New York Court of Appeals rejected three different arguments offered in support of the search. 

First, that the misdemeanors promoting gambling in the second degree (Penal Law § 225.05) and possession of a gambling device (Penal Law § 225.30) were inapplicable to the facts of this case, and thus could not be used by the People to support the fruits of the defendant's arrest.

Second, if anything, the defendant's actions amounted to the violation of loitering (Penal Law § 240.35 [2]), which is a violation, not a crime.  Accordingly, the officer's "observations of (the defendant) gambling in the hallway" did not provide him with probable cause for the arrest since Family Court Act § 305.2 [2] only authorizes the warrantless arrest of juveniles in situations where an adult could be convicted of a "crime".

Finally, and most importantly, the Court rejected the argument that the detention the defendant amounted to simply a "stop" as opposed to an arrest:

Finally, the presentment agency argues before us that Officer Recio's detention of Victor was not an arrest, but only a stop based on a reasonable suspicion that Victor was trespassing or loitering (see People v Hicks, 68 NY2d 234, 238-239 [1986]; People v DeBour, 40 NY2d 210, 223 [1976]). The flaws in this argument are many. Officer Recio testified to an "arrest," not a temporary detention. Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1]). A temporary detention justifies only a frisk, not a full-fledged search (DeBour, 40 NY2d at 223). And finally, assuming that transporting a suspect to the station house in handcuffs could ever be found to be only a temporary detention under DeBour and Hicks, even a temporary detention is unlawful if it is not reasonable under the circumstances. Here, nothing in the record shows that it was reasonable for Officer Recio to take Victor to the station house, instead of going with him to his apartment to get his identification.

What a decision! 

I only wish the Court had not left open the possibility that transporting a handcuffed suspect to a station house could, under a factual scenario not yet encountered, constitute a detention.   I've wracked my brain and can't come up with a single factual scenario that would not constitute an arrest under those circumstances.  How could any reasonable person, innocent of a crime, feel free to leave when handcuffed in the backseat of a moving and locked police cruiser?  That's the very definition of an "arrest", if you ask me.


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