Matter of Jamal S.

123 A.D.3d 429, 999 N.Y.S.2d 7

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 2014
• Docket: 12415
• Status: Published

Opinions

Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about November 19, 2012, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and placed him on probation for a period of 18 months, reversed, on the law, without costs, the motion to suppress granted, the dispositional order vacated, and the petition dismissed.

We hold that the police search that yielded the firearm found in Jamal S.’s shoe was unreasonable as a matter of law and that the weapon should have been suppressed.

Officer Leo and other police officers took Jamal and another individual into custody after seeing the two riding bicycles in the wrong direction on a one-way street. Both were charged with disorderly conduct under Penal Law § 240.20 (7). The officers intended to issue summonses for the violations. Jamal, who said he was 16 years old, could not be given a summons because he had no identification. The officers therefore decided to take him to the precinct, ascertain his identity and issue the summons afterwards. Jamal was handcuffed, searched and taken to the precinct in a motor patrol car. Upon his arrival at the precinct, Jamal was searched again at the desk. No contraband was recovered as a result of either of these two searches.

After 20 minutes of detention at the precinct, Jamal admitted that he was only 15 years old. Once informed of Jamal’s actual age, Officer Leo testified that he intended to notify his parents of his whereabouts and then complete a juvenile report. Officer Leo testified that he then spoke with Jamal’s mother at approximately 11:00 p.m. Although the mother said she would come and get Jamal, Leo instructed her to “come in the morning.” The record discloses no reason for such delay in releasing Jamal to his mother prior to the search in question. At Leo’s request, Officer Dooley lodged Jamal in the juvenile room where the police intended to hold him pending his parents’ arrival at the precinct. Dooley testified that he had no reason to expect that Jamal “had anything on him” at that time. At Dooley’s direction, Jamal removed his belt, shoelaces and shoes. Dooley found the gun inside of Jamal’s right shoe after Jamal removed it as directed. When asked why he directed Jamal to remove his shoes, Officer Dooley responded, “Just he could be hiding anything [sic].” This unfounded suspicion provided no basis for the search.

CPL 140.10 permits a police officer to arrest a person for any “offense” that is committed in the officer’s presence. The term “offense” is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2 (2), however, provides that “[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . .” The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00 [6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime (see e. g. Matter of Curtis H., 216 AD2d 173, 174 [1st Dept 1995]). As disorderly conduct is not a crime, Family Court Act § 305.2 (2) prohibited Jamal’s warrantless arrest for that offense (see Matter of Victor M., 9 NY3d 84, 87 [2007]). Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so.

The dissent cites People v Ellis (62 NY2d 393 [1984]) and People v Copeland (39 NY2d 986 [1976]) for the proposition that Jamal’s failure to produce identification “justified the police conduct.” Each of these cases involved an authorized arrest for a traffic infraction in a situation where an adult could not be issued a summons on the spot because of his inability to produce identification (see e.g. Ellis, 62 NY2d at 396-397). In Matter of Charles M. (143 AD2d 96 [2d Dept 1988]), the Court held that the arrest of a juvenile for a violation was not vitiated by section 305.2 (2) because of the youth’s physical appearance which gave the police reason to believe he was 16 years of age or older (id. at 97). Even assuming Jamal’s arrest for disorderly conduct was justifiable under Ellis, Copeland and Charles M., the gun was recovered from his shoe by means of an unreasonable search.

The police had no reason to believe Jamal was more than 15 years old when he was searched for the third time and directed to remove his shoes. To be sure, on the presentment agency’s direct examination, Officer Leo testified as follows: “Q. And upon learning that the respondent was, in fact, 15 years old what did you do? [emphasis added] A. I asked Officer Dooley to lodge him in the juvenile room . . ."

* At this point, when Jamal was being held pending his parents’ arrival, he was under temporary detention as opposed to arrest. “A temporary detention justifies only a frisk, not a full-fledged search” (Victor M., 9 NY3d at 88). The removal of Jamal’s shoes was far more intrusive than a frisk or a patdown (compare Matter of Shamel C., 254 AD2d 87 [1st Dept 1998] [momentary lifting of a pant leg held to be incidental to a patdown]). We find no merit to the presentment agency’s argument that safety required the removal of Jamal’s shoes. “The touchstone of the Fourth Amendment is reasonableness . . . .” (People v Molnar, 98 NY2d 328, 331 [2002] [internal quotation marks omitted].) Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. “[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed” (People v Galak, 80 NY2d 715, 718 [1993]). The standard of reasonableness still applies (id.). We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees’ self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces (cf. State Bank of St. Charles v Camic, 712 F2d 1140, 1146 [7th Cir 1983], cert denied 464 US 995 [1983]). Nonetheless, the removal of Jamal’s shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had “anything on him” or otherwise posed a danger.

The dissent’s suggestion that the search conducted here was necessary to prevent Jamal from shooting himself or a police officer is inflammatory, and unsupported by the record of events in this case, which began with the detention of a juvenile who did nothing more than ride a bicycle in the wrong direction on a roadway. The dissent’s position, if taken to its logical extreme, would call for a full search of any juvenile even temporarily detained in a precinct for any reason. This position finds no support in the Fourth Amendment.

Concur — Acosta, DeGrasse and Richter, JJ.

This testimony refutes the dissent’s position that Jamal’s actual age was in question when the officers decided to hold him.