Police Find Gun in Purse

On March 13, 2014, in Criminal, by John A. Weber IV, ESQ.

Legal Search or Illegal Search

Was the warrantless search legal?

FACTS

Just before noon on May 23, 2008, police responded to a radio run reporting a burglary in progress at 2255 Barker Avenue in the Bronx, an apartment building participating in Operation Clean Halls, a program through which police officers are authorized entry into privately owned buildings to conduct patrols. The radio run included descriptions of the suspects provided by the 911 caller, who had reported that two Latino males, between 5′9″ and 5′11″, were attempting to burglarize a fifth-floor apartment. Sergeant Manzari and his partner, Officer Aldas, were the first to arrive on the scene. They began by checking the rear exterior of the building, which was boarded up due to ongoing construction, leaving no rear access. Manzari and Aldas then circled back to the front entrance, where they were soon joined by between four and six additional officers. Manzari sent a pair of officers upstairs to conduct a vertical sweep and to locate and interview the 911 caller.

Upon entering the building, Manzari and Aldas observed defendant coming into the lobby from what appeared to be a stairwell. She was in the company of a Latino male, Alberto Sanchez. Another woman, who was later identified as the building superintendent, pointed at defendant and Sanchez and “made a face” in a manner Manzari interpreted as a request for the police to stop them, though she gave no intimation of weaponry. Manzari also directed an officer to move the superintendent aside “for safety reasons.” At Manzari’s direction, Officer Aldas then questioned defendant “to find out what she was doing in the building, if she was trespassing in the building.” Her answers were contradictory and equivocal: while she initially stated that she was there to visit a friend, she then claimed she was in search of a notary, but could provide neither names nor apartment numbers associated therewith. There were “No Trespassing” signs posted in the lobby.

At this point, Sergeant Manzari instructed two of the officers present to arrest defendant and Sanchez for trespassing. Officer Pagan approached defendant while another officer prepared to arrest Sanchez. Pagan proceeded to remove from defendant’s shoulder a large purse, which—from Officer Barnes’ standpoint—appeared to be heavy. Pagan then opened the bag and saw a handgun inside. After Pagan informed Manzari that the bag contained a gun and that it appeared to be loaded, the Sergeant instructed her to secure the weapon. Thereafter, Pagan handcuffed defendant and transported her to the precinct for processing.

Holdings

The trial court denied defendant’s motion to suppress the gun and the Defendant was convicted after a jury trial.

The Appellate Division affirmed the trial court’s decision.

The Court of Appeals reversed. Holding that no exigency justified the warrantless search of the large purse found in defendant’s possession.

The PEOPLE, Respondent, v. Josefina JIMENEZ, Appellant.

Criminal Attorney on Long Island

If you have been the victim of an illegal search, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 today.

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