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Court Finds that Officer Lacked Justification to Stop and Search Defendant – People v. Nazario, 2020 NY Slip Op 00955


In a case where the defendant faced a burglary charge, the Supreme Court, Erie County,  granted the defendant’s motion seeking to suppress physical evidence and statements on the ground that the police lacked justification for detaining and searching him. The People appealed the decision.

There is a well-established test for determining whether the police can lawfully stop, search and detain a person.  Under People v. DeBour, 40 NY2d 210 (1976), the police can stop and request information from a person if there is a good, objective reason to do so.  The police can question the person if he or she has a reasonable suspicion of criminal activity.  The police have the right to forcibly stop and detain a person if there exists a reasonable suspicion that the person has committed a crime or is about to commit a crime.  If the police have probable cause to believe that the person has committed a crime, then the police can arrest the person.

In People v. Nazario, the incident leading up to the defendant’s arrest started when the arresting officer  responded to a call regarding a burglary in progress.  The officer had also viewed a “be on the lookout” (BOLO) photograph depicting a man who  may have been involved in a prior burglary. Three blocks from the burglary scene, the officer noticed the defendant walking alone carrying a bag and a cell phone. When the officer asked the defendant what he was doing, he responded that the was looking through garbage cans. The officer searched defendant’s bag purportedly to check for weapons. He then drove the defendant back to the scene of the burglary to figure out if he was a suspect in the burglary. At the scene a showup identification was conducted. A showup is a form of eyewitness identification during which the police present a single suspect to an eyewitness and ask the eyewitness whether the suspect is the offender.  The witness identified the defendant as the burglar, and the defendant was arrested and later charged

The defendant filed an  omnibus motion seeking to suppress the physical evidence seized, the statements allegedly made by him, and the identifications of him. The Supreme Court granted his motion. As a result of the evidence being suppressed, the indictment against the defendant was dismissed.

The Appellate Division concluded that the Supreme Court properly determined that the officer was not justified in searching the defendant’s bag, detaining him, or transporting him to the scene of the burglary. While the officer claimed that he recognized the defendant as the person in the BOLO alert, the lower court did not find that the evidence supported that claim as the description in the BOLO alert was vague.  Further, at the time that the officer stopped the defendant, the defendant was not engaged in any criminal activity.  The officer’s claim that he searched the defendant’s bag to look for weapons was not credible. Applying the test in DeBour, there was no legitimate reason to stop him, forcibly detain him, or require that he participate in the showup identification.

Thus, the Appellate Division upheld the lower court’s decision to grant the defendant’s motion to suppress the physical evidence seized, statements allegedly made by the defendant, and the identifications of him.

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