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.'"

'ARBITRARY ROLE'

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 and marijuana.

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 officers.

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 how provocative."

"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 further proceedings.

The case is People v. David Holland, New York State Court of Appeals No. 236.

For the prosecution: Assistant Manhattan District Attorney William Mahoney.

For Holland: Arthur Hopkirk of the Legal Aid Society.

(Reporting by Dan Wiessner)

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(A previous version of this story misspelled the surname of Judge Susan Read).