NY court reverses gun conviction over illegal search

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A state appeals court has reversed a weapon conviction and suppressed physical evidence in the case because of an illegal police search.

Defendant Jamel Cunningham pleaded guilty, in July 2023, before Erie County Court Judge James F. Bargnesi, to two counts of second-degree criminal possession of a weapon.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction, vacated the plea, dismissed the indictment, and granted a defense motion to suppress the physical evidence.

Cunningham’s appellate lawyer, Nicholas T. Texido, argued that Bargnesi should have suppressed two guns that were found in the glove box of the vehicle Cunningham was driving because the guns were found during an unlawful inventory search.

“We agree,” the Fourth Department wrote.

An inventory search is a search designed to properly catalog the contents of the item searched. The objective is to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments.

“An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, and an inventory search will be constitutionally invalid where the search was merely a pretext to search for evidence of a crime,” the court wrote.

An inventory search should be conducted under an established procedure clearly limiting the conduct of officers to assure that it’s carried out “consistently and reasonably,” the court wrote.

“The purported inventory search was actually a pretext to search for contraband,” the court wrote.

Following the traffic stop, while Cunningham was being detained on an arrest warrant, an officer identified Cunningham’s car as one that police thought he would be using and would be keeping a weapon in, according to the decision.

An officer promptly began searching the front passenger area of the vehicle. He opened the glove box and found a weapon. A second weapon was found in the same spot.

“As one of the police officers who testified at the suppression hearing admitted, the police essentially conducted two searches of defendant’s vehicle following the traffic stop and detention,” the court wrote.

“The first search resulted in the discovery of the weapons, whereas the second search was conducted to inventory the contents and damage to the vehicle,” the court wrote.

“In our view, based on the evidence at the hearing, the first search was clearly a ruse to find weapons possessed by defendant and was not a proper inventory search,” the panel found.

“The evidence at the suppression hearing demonstrated that the officers’ purpose in conducting the first search was to find specific weapons in a specific vehicle possessed by a specific person,” the court wrote.

“We also note that the officers did not begin the second search until about 10 minutes after the weapons were discovered, and it was only at that time that an officer began filling out an inventory search form,” the court wrote.

“The facts that the inventory search form was not made contemporaneously with the first search, as required by Buffalo Police Department policy, and that it was incomplete to the extent it failed to note, as required, obvious damage to the vehicle, merely underscores and corroborates our conclusion that the first search of the vehicle was pretextual,” the court wrote.

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