The defendant has been charged with two counts of criminal possession of a weapon in the second degree and disorderly conduct. A Mapp-Huntley hearing has been held in this case. The testimony that was offered during the hearing was quite different and the court does not find either testimony to be wholly credible. At the end of the hearing each party requested more time to submit post hearing memoranda of law and they both have.
On the 21st of December, at around eight in the evening, a group of five or six people including the defendant was congregating in front of a public housing complex known as Hamel Houses. The group was blocking the walkway for pedestrians to get into the building.
The Sergeant along with two other officers was driving by in an unmarked car. They saw the group and pulled over. The sergeant told the group to leave the area. The group nodded and started to walk away. The officers left as the group walked away.
A few minutes later the sergeant returned to the area. The defendant was there again. It remains unclear as to whether the other members of the group were with him or if these were different people. The group was asked to leave again and once again appeared to do so.
The officers left and again returned a couple of minutes later and the group was there again. The officers got out of the car for the first time. The sergeant believed that the group was impeding the pedestrian walkway and as the group had been asked to leave twice already the officers were going to stop, question, and frisk the individuals who were in front of the building.
The officers frisked the individuals and when they checked the defendant he had a gun. The defendant told the sergeant, “you know what is going on here, and I need the gun for protection.”
Case Discussion and Decision
The people argue that the seizure of the weapon was justified as the product of a search incident to a lawful arrest. The police had probable cause to arrest the defendant for disorderly conduct either as an obstruction of pedestrian traffic or as a refusal to comply with a lawful order of the police to disperse where the defendant was congregating with others in a public place or resisting arrest.
The court has reviewed the facts of the case and determines that the police did not have probable cause to search the defendant. There were no complaints by pedestrians who could not get into the building. As such, there is no probable cause to justify the search.
For this reason, the gun will be suppressed from evidence during the trial. The statement made by the defendant to the officer is also suppressed as it came from an unlawful stop, search and seizure of the defendant.
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