You are here: / / Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His...
,

Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents

The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:

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 … . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense … . 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. * * *

…[W]hen 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” … . The removal of Jamal's shoes was far more intrusive than a frisk or 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 . . .” … . 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” … . The standard of reasonableness still applies … . 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 … . 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. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14

 

You might also like
EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).
DEFENDANT HOSPITAL DISCHARGED A PATIENT WITH A HISTORY OF SCHIZOPHRENIA BUT NO HISTORY OF THREATENING OR ASSAULTING PEOPLE; THE PATIENT ASSAULTED PLAINTIFF, THE CAB DRIVER PAID BY THE HOSPITAL TO TAKE THE PATIENT HOME; THE HOSPITAL DID NOT OWE A DUTY OF CARE TO PLAINTIFF (SECOND DEPT).
Criteria for Evaluating County Bidding Process Explained
Court Properly Accepted Defendant’s Consent to the Determination He Is a Sex Offender Requiring Strict and Intensive Supervision and Treatment (SIST)—The Relevant Statute Does Not Mandate a Hearing
Subcontractor’s Breach of Contract Cause of Action Should Not Have Been Dismissed Despite Absence of Privity
THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).
DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).
THE INSURED, WHO WAS SEEKING UNINSURED MOTORIST BENEFITS, DID NOT TIMELY NOTIFY HER INSURER OF THE TRAFFIC ACCIDENT; THEREFORE THE INSURER’S PETITION TO PERMANENTLY STAY ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

The Public Administrators of Two Counties Claimed the Authority and Jurisdiction... Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies...