Weapon conviction overturned due to ‘unlawful police conduct’

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A state appeals court has reversed a weapon conviction because of “unlawful police conduct.”

In October 2019, defendant Aaron Johnson pleaded guilty in state Supreme Court before Justice Charles A. Schiano Jr. to second-degree criminal possession of a weapon.

In a decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, overturned the conviction and granted a defense motion to suppress the key evidence in the case.

Johnson’s appellate lawyer, Tonya Plank, argued that Schiano should have granted the motion to suppress the evidence, including a gun that Johnson was charged with possessing.

“We agree. As the People correctly concede, the police did not have reasonable suspicion to stop or pursue defendant based on information received from an anonymous 911 caller and, thus, the weapon defendant discarded during his flight and the other evidence recovered from defendant upon his arrest must be suppressed,” the Fourth Department wrote.

The incident leading to Johnson’s arrest started when two police officers in separate patrol cars responded to a report of a man with a gun.

Someone called 911 and said that a Black man in an orange jacket had threatened him with a silver, chrome handgun near a particular intersection, which was less than a mile from where the officers were when the call was received.

The caller only gave his first name and provided no contact information, such as a telephone number or address.

When police arrived at the intersection the officers saw three Black men, two of whom were on bicycles. One of the men with a bicycle was Johnson, who was wearing an orange jacket.

One officer got out of his patrol car and ordered them, at gunpoint, to show their hands. The other officer also exited his car but did not draw his weapon.

After raising his hands for a moment, Johnson got off his bicycle and ran away, ignoring the officers’ repeated requests to stop. Both officers chased him.

During the pursuit, Johnson took off his jacket and threw it on the ground. The officers eventually caught Johnson and subsequently found a loaded chrome handgun in the jacket that Johnson discarded.

The prosecution acknowledged that Johnson’s case is very similar to People v Moore, a 2006 New York State Court of Appeals decision.

In that case, police received an anonymous tip that a Black male with a gun, who was about 18 years old and wearing a gray jacket and red hat, was involved in a dispute at a particular location.

Police arrived at the scene within a minute of being dispatched and saw the defendant, a Black male wearing a gray jacket and red hat, with no similar individuals nearby.

As the officers got out of their cars, Moore started walking away as the officers yelled: “Police, don’t move.” Moore continued to walk away but eventually stopped when the officers demanded that he put his hands in the air. He was frisked and a gun was found in his jacket.

The Court of Appeals ruled that, the anonymous tip authorized only an inquiry, but the police “failed to simply exercise their common-law right to inquire.”

In Johnson’s case, as in Moore, the Fourth Department wrote: “The anonymous tip was simply that of a man with a gun at a particular location. It follows that the officer’s gunpoint stop of defendant was unlawful, as was the officers’ subsequent pursuit of defendant after he took flight.”

The Fourth Department ruled that Schiano “erred in refusing to suppress the tangible evidence obtained as a result of the unlawful police conduct.”

“Because our determination results in the suppression of all evidence in support of the crimes charged, the indictment must be dismissed,” the court wrote.

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