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THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress items taken from his person should have been granted because the sequence of events which would have legitimized the search was not proven at the hearing:

… [W]e agree with the People that the police had reasonable suspicion to detain defendant based on the detective’s report that he saw a possible drug transaction in which a Hispanic man later identified as defendant, who was wearing a black leather jacket, handed a bag containing two small white objects to another man before walking away, in close temporal and spatial proximity to defendant’s apprehension … . However, this information did not establish probable cause to arrest and search defendant. The detective did not testify that he observed anything that appeared to be money being exchanged or handled by either of the two men, that there was anything furtive about their behavior aside from the sheer brevity of their encounter, or that the area was particularly drug prone … .

When the detective recovered a bag containing drugs after the apparent buyer discarded it, this clearly raised the level of suspicion to probable cause. However, the nontestifying officers had detained defendant based only on the information known at the time of the initial radioed report. The People’s assertion that the search occurred after the testifying detective made a confirmatory identification of defendant is unsupported by the record. In fact, the detective could not specify when the search occurred, or when he learned about it, and the People did not call any witnesses to testify about the nature and timing of the search based on personal knowledge. People v Ayarde, 2018 NY Slip Op 03750, First Dept 5-24-18

​CRIMINAL LAW (STREET STOP, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/STREET STOPS (SEARCH, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/SEARCH AND SEIZURE (STREET STOPS, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))

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