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Controlled Substance Conviction Thrown Out Due to Illegal Search – People v Ortiz (David) 2019 NY Slip Op 29095


In a possession of a controlled substance case, the court considered whether the police officers properly stopped and arrested the defendant for disorderly conduct.  When the officers stopped the defendant, they found cocaine on his person, leading to a charge of possession of a controlled substance in the seventh degree.

The events that eventually led to the defendant’s conviction on a drug charge started when the three police officers who were on patrol in an unmarked car observed the defendant running down a sidewalk and across a street into oncoming traffic. A couple of cars had to slow down as the defendant ran across the street in front of them. The officers decided to issue the defendant a summons for disorderly conduct because he ran across the street disrupting traffic.  In other words, by running across the street into traffic, the police officers had concluded that the had reasonable cause to believe that the defendant was committed the crime of disorderly conduct.  However, when they approached the defendant, they observed him clutching something in his waistband and feared that he had a weapon.  The officers ordered the defendant to put his hands in the air, handcuffed him, and searched him. They discovered a knife in the defendant’s pocket along with 5 clear bags of cocaine.  The defendant was eventually convicted of attempted possession of a controlled substance in the seventh degree.

Under N.Y. Pen. Code § 240.20[5], a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he obstructs vehicular or pedestrian traffic. For the police to have found that there was reasonable or probable cause to stop and arrest the defendant, his actions must have led them to believe that the defendant was intentionally or recklessly creating a substantial risk that public inconvenience, annoyance or alarm would occur. The court found that merely causing 2 cars to momentarily slow down did not amount to disorderly conduct, but was only a momentary inconvenience at best.  This was not sufficient to satisfy the public inconvenience or annoyance element.

If the defendant’s conduct did not amount to a risk of public harm, then the police did not have reasonable cause to stop the defendant to issue him a summons for disorderly conduct or for any other reason.  The fact that he was clutching an unidentifiable object in his waistband was also not sufficient to suspect that the defendant had a gun or had committed a crime.  In other words, the police had no reason to stop him.  If they hand not stopped him, they would have never found the drugs.  The court concluded that the drugs that they found on the defendant should have been suppressed.

A basic component of New York criminal procedure is that defendants are afforded due process. This means that evidence submitted by the prosecution must have been collected in a legal manner.  The police can only arrest a person and conduct a search as a part of that arrest if they have a legally sufficient reason to do so.  This is referred to as reasonable cause.

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