Alleged Illegal Searches By NYPD Rarely Challenged in Marijuana Cases

Illegal searches are more common than people realize, but few end up getting challenged in court, law enforcement officials and defense attorneys say.

Checks and balances within the criminal justice system are intended to ferret out improper arrests, but many defendants and their lawyers say they face insurmountable obstacles when fighting marijuana charges – and the alleged illegal searches that sometimes led to them.

More than 50,000 people were arrested in the city for misdemeanor marijuana possession last year – the highest in a decade. And a substantial number of these arrests take place in the police precincts where the most stop-and-frisks occur, which are predominately black and Latino neighborhoods.

More than a dozen men who were arrested in these precincts for misdemeanor marijuana possession told WNYC the police recovered marijuana on them through illegal searches. None of them challenged these allegedly illegal searches in court.

Limitations of Prosecutors as Watchdogs

The District Attorney is supposed to throw out cases based on illegally seized evidence. But only police, not prosecutors, are at the scene of the arrest. So what prosecutors decide to charge a person with depends largely, at first, on what officers reveal in their paperwork.

Under New York state law, a person can be charged with misdemeanor marijuana possession if he or she is smoking or displaying pot in "public view." Each of the men WNYC interviewed said their marijuana was never in public view until police removed the pot from their clothes.

Jeannette Rucker, a supervising prosecutor at the Bronx District Attorney’s Office, heads the Complaint Room, where prosecutors first review police paperwork before they bring formal charges. She reads thousands of police reports about marijuana arrests.
"When an officer charges somebody for 'marijuana open to public view,' when they write in their paperwork that they found it in the defendant’s pants pocket, I have to dismiss it," said Rucker.

Rucker (Photo left) said her office throws out 10 to 15 misdemeanor marijuana cases everyday because the police paperwork states the marijuana was actually not in public view. These cases she chalks up to honest mistakes. But if a cop lies in his report – and fails to mention that the marijuana was actually found in someone’s clothing – Rucker said there’s no way for her office to know that without a further investigation.

That creates a substantial problem for defendants who were wrongfully arrested. Rucker said in most cases, prosecutors don’t even interview arresting officers until after a defendant is arraigned – but she said too many defendants plead guilty right at their first court appearances. Therefore, Rucker said defendants who think they’ve been illegally searched or otherwise improperly arrested have to stand up for themselves right at the beginning of a case.

"If they’re claiming that, 'I had it in my pants’ pocket,' then you hold that officer accountable, you come in and testify, or you tell us something," said Rucker. "You cannot just stay mute and say, 'Oh, I’m gonna take my plea.'"