A Bronx judge ruled that police can stop and frisk a person suspected of a noncriminal violation when an officer reasonably suspects he or she might be in personal danger.
The decision by Bronx State Supreme Court Judge Dominic Massaro approved a search done by an officer that uncovered a box cutter on a man initially suspected of rowdy behavior outside a nightclub, conduct that normally leads only to the issuance of a summons for a violation.
Officers said that when the defendant, Steven Aponte, was ordered to clear away from a sidewalk, he refused and questioned their authority. In reaction, they ordered Aponte up against a wall, frisked him and found the box cutter. Aponte's lawyers challenged the search, saying there was no reasonable cause to justify the frisk, Massaro noted in his Aug. 14 ruling.
"The court emphatically rejects any claim that law enforcement's right to search for safety reasons suddenly disappears when a violation is involved," Massaro said. "The court finds that the police acted with reasonable suspicion that safety concerns existed; thereby justifying the defendant's frisk during which the box cutter was discovered."
In his ruling, Massaro refused to throw out statements made by Aponte, as well as other evidence, presumably the box cutter, seized by police during the November 2010 arrest.
When cops found the box cutter on Aponte, he replied, "You know how it is out here" when asked by an officer why he had such a device, noted Massaro. Aponte was charged with criminal possession of a weapon in the fourth degree, a misdemeanor.
Acknowledging that police stop-and-frisk tactics in the city have been controversial and the subject of a federal class-action lawsuit, Massaro said the issue he had to address -- whether suspicion of a violation justified a frisk -- had rarely been dealt with by the courts. But at least one state appeals court said a frisk was justified when a suspect is uncooperative, Massaro said.
"The court finds that safety concerns likewise justify stop and frisk here," Massaro ruled. "Stop, question and frisk allows police to investigate suspicious persons and pat them down for weapons."
Aponte's conduct provided officers with "reasonable suspicion" grounds about safety and justified the frisk, Massaro said.
NYPD spokesman Paul Brown applauded the ruling and said it supports the view that cops can frisk when they suspect they may be in danger during a stop.
"The NYPD already is conducting far too many frisks, and this ruling just makes the situation worse by opening the door to frisks of people suspected only of offenses that are not even crimes," said Chris Dunn, an official with the New York Civil Liberties Union. "We expect it will be overruled if appealed."