No, Police May Not Search You For Staring: New York Court Suppresses Handgun Found After Man Stares at Police

A recent case in Western New York has unsurprisingly confirmed that staring at a police officer does give police the right to search you. In People v. Savage, an appellate court in Buffalo, New York, recently tossed a conviction for possession of a loaded handgun after a man stared at police in a high crime area and the weapon was found. In other words, it is unconstitutional for police to search a person--no matter what contraband may be recovered after the fact--simply for starring at the police.

Police come up with all kinds of troubling reasons for stopping and searching people. The New York City Police Department's former policy of stop and frisk was disproportionately aimed at minority men. As part of a civil rights lawsuit, a federal judge took the NYPD to task in a 195-page decision in part for making stops based on the seriously vague notion of furtive movements. The issue of policing along racial lines not confined to New York City. An investigation by the U.S. Justice Department found similar problems with searches in Newark, New Jersey, and the same issue came to light decades ago in Chicago and Los Angeles, where a division of the department planted evidence on a regular basis.

More recently in Brooklyn a U.S. postman was arrested in the middle of his rounds after he challenged a car full of plainclothes police officers for nearly hitting him. William Bratton, Commissioner of the New York City Police Department, expressed "strong concerns" about the mailman's arrest.

In People v. Savage, New York's Fourth Department overturned the lower court's decision and suppressed the evidence of the loaded handgun. The criminal case started when Damone Savage and two other men were spotted by Buffalo police officers as they made an unrelated traffic stop in a gas station. One police officer testified at a hearing that "they observed defendant and two other men walking down the sidewalk on the other side of the street in a 'higher crime area.' [And] [d]efendant was 'staring' at him and his partner or at their marked patrol vehicle." The police officers then drove up to the men and asked "What's up, guys?" That is when Mr. Savage started walking at faster and then one of the officers testified that he saw Mr. Savage drop a gun holster to the ground and then a handgun in bushes.

After a lower court judge found the circumstances surrounding the recovery of the handgun constitutional, thereby refusing to suppress the evidence, Mr. Savage pleaded guilty to possessing a loaded handgun. In New York, that crime is known as Criminal Possession of a Firearm in the Second Degree, a serious felony that carries a mandatory minimum period of incarceration. He was sentenced to seven years in prison. That is until an appellate court had its say.

Although laws may differ among the states, in New York, the police need some credible reason to approach a person to ask even the most basic questions like a name, address or destination. Throughout the United States, police need a much higher level of suspicion often called reasonable suspicion in order to conduct a search for weapons. And searches are generally permitted if the police have probable cause that a crime was or is being committed or is there is some other exception to the warrant requirement (and there are many).

The Court in Mr. Savage's case ruled that the conduct of the police officers "was not justified from its inception." The Court concluded that "merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one's way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police" was not sufficient to justify the officers' encounter with the men. Under the fruit of the poisoners tree doctrine, the Court suppressed all of the evidence that was recovered, the handgun as well as Mr. Savage's statement.

Mr. Savage's case was sent back to a lower court. It is a good bet that the District Attorney's Office in Erie County will appeal the ruling to the state's highest court, the Court of Appeals. Until then, while parents might tell their children that is not polite to stare, people should feel comfortable looking in the direction of police without the fear of being searched as a reprisal.