NY appeals court overturns gun conviction over illegal search

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A state appeals court has reversed a gun conviction because of an illegal search.

Defendant Trevon Small was convicted in July 2022 of second-degree attempted criminal possession of a weapon, and sentenced to six months in jail, and five years of probation.

According to the decision recently released by the New York State Appellate Division of state Supreme Court, Second Department:

On the night of Jan. 2, 2022, two uniformed police officers, in an unmarked car, were on patrol in Manhattan when one of the officers, who was standing outside the car, saw Small and a woman walking.

The officer saw Small look at him and then cross the street. Small looked at the officer a few more times and adjusted his pants while crossing with the woman back across the street.

Later, at the later suppression hearing, one of the officers testified that Small crossed the street to avoid the patrol car. The two officers followed Small in the police car.

While the officers were following Small, they saw him hand a small unidentified object to the woman. One officer described Small handing the object to the woman as a “hand-to-hand motion usually consistent with narcotics.”

The other officer testified that the object was “plasticy,” but also stated that it was unclear what the object was and “could have been anything.”

The officers waited in the car to see if the woman would hand money to Small, as would take place in a drug sale, but she never did.

The woman was not searched, and no drugs were ever found on Small.

The officers approached Small, who had his right hand by his side and his left hand inside the pocket of his puffer jacket.

One officer testified that he asked Small to take his hand out of his pocket. According to the officer, Small asked the officer why, and the officer responded that the request was “for his safety,” claiming that “it’s a very high crime area” and “very violent.”

The officer also testified that Small did not immediately comply, so the officer asked him one more time, and he took his hand out of the pocket and started to lean toward his left side as if “he was trying to run . . . or walk away.”

The officer testified that he saw that Small’s left pocket had a heavy object in it and there was a “shift of weight.”

The officer testified that he was concerned that Small could “possibly be armed” because he was trying to conceal the object in his left pocket and was “looking away.”

The officers grabbed Small by his wrists, patted him down, and purportedly felt a gun on his left side. The officers arrested and searched Small, finding a gun in his left jacket pocket.

Police body-worn camera footage of the encounter shows that, when the officer asked Small to remove his hand from his jacket pockets, he almost immediately complied, removing his hand from his pocket and showing his empty hands to police.

“No significant bulge can be seen from the left side of defendant’s jacket,” the panel wrote.

State Supreme Court Justice Laura Ward, J. denied Small’s motion to suppress the gun, noting that the issue was “a very close question” that turned on the court’s interpretation of the officers’ actions.

Small’s suppression motion should have been granted, the Second Department concluded.

And the initial inquiry and subsequent seizure by police were unjustified, the court ruled.

“Even crediting the officers’ testimony that their suspicion was aroused when defendant and the woman crossed the street to avoid their patrol car, and then they later observed him pass a small object to the woman, the totality of the circumstances did not give rise to the level of suspicion required for a common-law inquiry,” the court wrote.

“Even if there had been a bulge in defendant’s pocket, that observation alone does not imply a reasonable conclusion that defendant was armed,” the court wrote,

“Since no other admissible evidence exists to establish the crime, and the prosecution would be unable to secure a conviction on criminal possession without the gun recovered from defendant and his statements to the police, the judgment of conviction must be vacated, and the indictment dismissed,” the court ruled.

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