Stop-and-frisk conviction overturned despite man’s ‘suspicious behavior’
By REBECCA ROSENBERG
August 28, 2013
The state’s Appellate Division yesterday tossed out a stop-and-frisk gun conviction on the grounds that there was no probable cause to search the suspect.
The panel ruled in a 3-2 decision that cops had no reason to stop and question Jeffrey Johnson in the lobby of a “drug-prone’’ public-housing building, much less frisk him.
Johnson had frozen and “jerked back” when he first spotted the officers as he entered the lobby from a staircase, according to testimony at his nonjury trial in Bronx Supreme Court.
But a person’s “desire to avoid contact with police” doesn’t establish enough suspicion to justify police asking questions or performing a search on him, the majority wrote.
The mere “presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information,” the judges wrote.
But the two dissenting jurists argued that the cops had every right to question Johnson, given his suspicious behavior. “Defendant’s abrupt, halting, and furtive movements provided the police with an objective credible reason” a dissenting judge insisted.“And subsequent events led to a lawful stop-and- frisk . . . [Police] reasonably suspected that they were in danger of physical injury.’’ Cops had said that after Johnson first spotted them, he acted as if he were about to take off back up the stairs to avoid them.He then began nervously moving his hands “all over the place, especially around his chest area,” cops said in court papers.
Police said they thought he might be trespassing, so they asked him if he lived there. He said yes.
But when they then asked him for identification, “he began to stutter and change his story to say that he was visiting his girlfriend,’’ according to court documents.Johnson eventually went to get his wallet out of his coat pocket, and that’s when cops saw a suspicious bulge, they said.
The cops searched Johnson and discovered the loaded gun in the netted interior pocket of his jacket, documents state.
He was convicted in January 2010. A spokesman for Bronx District Attorney Robert Johnson, asked whether his office would appeal the new ruling, said merely that “the decision is under review.”