ALBANY, N.Y., Dec 21 (Reuters) - New York's high court has
dismissed an appeal brought by a man who moved to suppress
drugs found on him during an unlawful detention by the police,
a ruling Chief Judge Jonathan Lippman called "jurisdictionally
unsound" and "erosive" of the top court's "role in articulating
the law governing police-civilian encounters."
On Tuesday, the Court of Appeals held 5-2 that the
suppression motion by the man, David Holland, involved a "mixed
question of fact and law" which the court did not have the
authority to hear under the statute that outlines the types of
appeals the court may hear, CPL 450.90(2)(a).
But in a sharply-worded dissent, Lippman, joined by Judge
Carmen Ciparick, argued that Holland had only committed a crime
as a result of unlawful activity by the police and that
dismissing the appeal was "erosive" of the court's role in
determining appropriate police conduct.
"When courts with the factual jurisdiction to make
attenuation findings employ facile analytic shortcuts operating
to shield from judicial scrutiny illegal and possibly highly
provocative police conduct, an issue of law is presented that
is, I believe, this Court's proper function to resolve,"
Lippman wrote. He added that the "alternative is to turn a
blind eye to 'tactics ... any person might be approached,
detained, intimidated, harassed, even provoked into a display
of aggression and thereupon arrested, effectively eviscerating
Fourth Amendment protections and 'abandon[ing] the law-abiding
citizen to the police officer's whim or caprice.'"
Holland was stopped by police in December 2007 outside a
Manhattan housing project. He initially cooperated when asked
to show identification, but was immediately approached by two
more officers who began asking him questions, according to the
decision. Holland became agitated and punched or pushed one of
the officers. After being arrested for assault and disorderly
conduct, he was searched and found to be in possession of crack
In 2008, a trial judge ruled that the drug evidence should
be suppressed because Holland's aggression was justified due to
his unlawful detention by the police. Last year the Appellate
Division, First Department, reversed that ruling, finding that
the unlawful detention was "attenuated" by Holland's assault on
The Court of Appeals found that the reversal by the First
Department was not "on the law within the meaning of CPL
450.90(2)(a)," and therefore was not for the court to decide.
But in a seven-page dissent, Lippman faulted the First
Department for failing to conduct the proper analysis to
determine whether the unlawful police conduct was, in fact,
rendered irrelevant by Holland's alleged assault. The question
was "purely legal," Lippman wrote, and was thus properly
preserved for the Court of Appeals.
The First Department, he wrote, created an "arbitrary rule"
that so long as an officer does not initiate unlawful physical
contact, such contact "will be deemed distinct and
unattributable to any precedent official illegality, no matter
"There is nothing in our cases that could be construed as
permitting the substitution of such a rule for an attenuation
analysis," Lippman wrote.
'NOT AN EXAGGERATED CONCERN'
The ruling comes as civil-rights groups and some
policymakers have stepped up criticism of the New York Police
Department for its "stop and frisk" policy, which authorizes
police officers to stop, search and question anyone they deem
suspicious. According to the New York Civil Liberties Union,
police stopped more than 3 million people between 2003 and
2010, almost 90 percent of whom were minorities. Only one stop
out of every 10 resulted in a summons or arrest.
"This is not an exaggerated or purely academic concern in
(New York City) where ... hundreds of thousands of pedestrian
stops are performed annually by the police," Lippman wrote in
his dissent, adding that "only a very small percentage of which
actually result in the discovery of evidence of crime."
Judges Victoria Graffeo, Eugene Pigott, Theodore Jones, and
Susan Read, and Robert Smith made up the majority.
Holland's attorney, Arthur Hopkirk of the Legal Aid
Society, said the court should have taken up the appeal because
it arose from a "new legal principle" created by the First
Department and was not, as the majority held, based simply on a
"mix of fact and law." The First Department's ruling creates "a
dangerous incentive to engage in overly-aggressive policing
created when the courts do not hold the police to account,"
Hopkirk said. "The logic is you could have a police officer who
provokes or taunts somebody into reacting, in the hope that it
will provide legal justification for searching them."
The Manhattan District Attorney's office did not return a
request for comment.
Holland's case will now go back to the trial court for
The case is People v. David Holland, New York State Court
of Appeals No. 236.
For the prosecution: Assistant Manhattan District Attorney
For Holland: Arthur Hopkirk of the Legal Aid
(Reporting by Dan Wiessner)
Follow us on Twitter: @ReutersLegal
(A previous version of this story misspelled the surname of
Judge Susan Read).