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First Amendment

On a spring evening at around 6:30 P.M., a police officer and another police officer were parked in separate marked police vehicles on a residential street in Rochester. One of the officers noticed that a woman (later determined to be the defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, the officer ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota – not a Cadillac. He briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, the defendant man approached the open passenger-side window of the officer’s car, leaned his head in and inquired why the officer had checked the license plate. The officer said something to the effect that he could run a plate if he wanted to.

The defendant man started backing away from the police vehicle towards the middle of the street, swearing at the officer. When the officer asked what he said, the defendant repeated the profanity and accused the officer of harassing him. After radioing his partner that he intended to make an arrest, the officer exited his vehicle and, with the assistance of his partner, placed the defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind the defendant and his girlfriend. In a search incident to arrest, the police discovered that the defendant was with 25 bags cocaine in his possession. The defendant man was subsequently indicted and charged with criminal possession of a controlled substance third degree, criminal possession of a controlled substance fourth degree and disorderly conduct.

The defendant moved to suppress the drugs found on his person, contending that the arrest for disorderly conduct was illegal, rendering the contraband fruit of the poisonous tree. At the suppression hearing, the officer testified to the events described above and the People introduced the videotape of the incident made by the defendant’s girlfriend, which largely corroborated the officer’s testimony. At the close of the proof, the defense counsel argued that the police lacked probable cause for the disorderly conduct arrest because the defendant’s statements were not uttered with the intent to annoy, harass or alarm, the culpable mental state under the disorderly conduct statute. The defense counsel further asserted that the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that the defendant was doing in this case.

Crediting the officer’s uncontradicted testimony, the County Court found that the police had probable cause to make the arrest meaning that the resulting search was lawful and the contraband discovered incident thereto was admissible at trial. Following the denial of the suppression application, the defendant was presented with a plea proposal that would simultaneously resolve the drug possession charges and unrelated assault charges from a separate pending indictment. If the defendant pleaded guilty to one count of criminal possession of a controlled substance third degree in satisfaction of this indictment and one count of assault second degree in satisfaction of the assault indictment, the County Court promised that he would receive concurrent terms of six years in prison plus appropriate post-release supervision (five years on the assault conviction and three years on the drug conviction). The court clarified that this disposition would not preclude the defendant from challenging the denial of suppression on appeal, which defense counsel indicated was his intent. The defendant accepted this resolution, pleading guilty to the two offenses in satisfaction of both indictments, and the County Court imposed the agreed-upon sentence.

In an appeal from the judgment in the drug possession case, the defendant sought review of the suppression ruling but the Appellate Division summarily affirmed. In a separate appeal, the defendant sought vacatur of his plea in the assault case in the event that he succeeded in his challenge to the suppression order. That appeal was also rejected by the Appellate Division. A Judge of this Court granted the defendant leave to appeal from both Appellate Division orders and the County Court reverse.

The defendant argues that, if applied to criminalize his statements and conduct, Penal Law – the disorderly conduct statute underlying his arrest – violates the First Amendment. He contends that the Court should avoid this result by construing the provision narrowly to permit prosecution only when the statements uttered by the accused either constitute obscenity (as that term has been defined in First Amendment cases) or fighting words and he claims that his arrest was unlawful because his utterances did not fall into either category. Before the court can address what is, in effect, an as-applied challenge to the constitutional validity of the statute, the court must first determine whether the Penal Law arrest was lawful under the existing precedent. Thus, the threshold issue presented in this case is whether there was a record basis for the finding of the courts below that the defendant’s disorderly conduct arrest was supported by probable cause. Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the drug offense has been committed.

Under Penal Law 240.20, a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof in a public place, he uses abusive or obscene language, or makes an obscene gesture. The offense has existed in one form or another for more than a century and has spawned a significant body of case law. As is clear from the precedent, critical to a charge of disorderly conduct is a finding that the defendant’s disruptive statements and behavior were of a public rather than an individual dimension. This requirement stems from the mens rea component, which requires proof of intent to threaten public safety, peace or order (or the reckless creation of such a risk). Thus, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem. Marijuana can be the cause.

The public harm element is what distinguishes the disorderly conduct statute from other offenses that contain similar requirements but encompass disputes of a more personal nature. As the court has previously explained, this element performs an important narrowing function.

The court has clarified that the risk of public disorder does not have to be realized but the circumstances must be such that the defendant’s intent to create such a threat (or reckless disregard thereof) can be readily inferred.

In a related case, the Court upheld a conviction involving a newlywed who created a disturbance that spilled from the parking lot of a hotel into the area outside a mini-mart and gas station in the middle of the night. When a police officer drove up to the hotel, which was situated in a quiet village, she found the defendant yelling and waving his arms at his bride, who was seated on a curb weeping while still in full wedding attire. In the presence of the officer, the defendant issued a stream of obscenities at his wife in a loud, aggressive and threatening tone. He then turned his attention to the police officer who had attempted to intervene, telling her that if she put her hands on him, she would be taking him to jail. After failing to heed repeated warnings to stop his disruptive behavior and calm down, the defendant was arrested for disorderly conduct. The court held that the arrest was lawful, concluding there was sufficient evidence that the defendant’s statements and conduct evidenced intent to create a risk of public harm given the late hour, the quiet nature of the surrounding community and the protracted, increasingly aggressive nature of the defendant’s vocalizations. Heroin could have been involved.

Likewise, in another case, the court declined to disturb a conviction that arose from a late night encounter between a bar patron and a police officer on the threshold of a busy drinking establishment. There, the defendant uttered an obscenity and spit at the officer, who was walking by; the defendant then shoved the officer as he approached. Intending to make an arrest for disorderly conduct, the officer who was alone on foot patrol directed the defendant to step onto the sidewalk. A crowd of patrons gathered, yelling at the officer to leave the defendant alone. At this juncture, the defendant retreated into the bar, the officer followed and a scuffle ensued between the defendant, the officer and a number of other bar patrons. The Court had no difficulty inferring that the mens rea requirement was met – that there had been the intentional or reckless initiation of a risk of public harm. There, the risk came to fruition since the defendant’s statement and conduct led to a brawl involving himself, the officer and other bar patrons – a predictable result given the drug context of his obstreperous statements and conduct.

In contrast, the court concluded that the public harm element was lacking in a case where a landowner engaged in a confrontation with a State Power Authority construction crew that was attempting to erect a transmission line on a right-of-way that cut through his farmland. After firing a shot into the air (and being divested of his gun), the defendant positioned himself in the path of a backhoe and, when he refused to move after being ordered to do so by police, he was arrested for disorderly conduct. Eight or ten people witnessed the incident but no one was attracted to the scene by the defendant’s conduct, nor did they get involved in his protest. The court determined that the evidence was insufficient to support the disorderly conduct conviction since the defendant’s actions took place in broad daylight on his own property far removed from any public thoroughfare, business or residence. Based on these facts, the Court observed that there was no indication that the defendant sought to incite or involve the spectators, who were in the area before the Marijuana confrontation, and the only fair inference was that the differences between the authority and the defendant were confined to these two disputants rather than spread to the public.

Although it is true in this case that a group of bystanders gathered around the defendant and his girlfriend – a fact certainly relevant to the public harm analysis – there is no evidence that the bystanders expressed any inclination, verbally or otherwise, to involve themselves in the dispute between the defendant and the officer, nor did the suppression court draw any such inference.

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that the defendant’s abusive statements were directed exclusively at a police officer – a party trained to diffuse situations involving angry or emotionally distraught persons – further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored the defendant. After consideration of all relevant factors the defendant’s arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element.

When faced with unexpected situations, people who are hiding something illegal react guiltily. If you want to pursue a cocaine or drug possession lawsuit and you want to make sure that you will get a favorable verdict, the New York City Drug Possession Lawyer or the New York Cocaine Possession Attorney from Stephen Bilkis and Associates.

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