[This is the second part of a two-part series. Read the first part here.]
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.'"
The Cost of Fighting a Case in Court
But longtime public defenders say fighting a marijuana charge to the end is simply infeasible in most cases.
Marijuana possession is now by far the most common misdemeanor charge in the city. Defense lawyers say if everyone with a marijuana charge actually fought his or her case to the fullest, the already overextended court system would grind to a halt. 
"People can't afford to fight a case," said longtime public defender Ed McCarthy (Photo right), who supervises a small staff of Legal Aid lawyers at Night Court in Lower Manhattan.
McCarthy said challenging a charge can mean coming back to court eight to 10 more times for the next year and a half.
"'I have to be home to pick up my kid, I have to get to my job tonight. I have to do a million things other than come back and forth and sit on a bench in a courtroom for six hours to hear that the People aren’t ready or to hear that there’s no courtrooms available,' which is such a common thing here."
McCarthy said therefore most of his clients just plead guilty right away.
Complaints About Alleged Illegal Searches
Last year, 1,142 people told the Civilian Complaint Review Board (CCRB) they were improperly searched during a stop-and-frisk. The CCRB is an independent agency that oversees police misconduct. The police department disciplined three percent of the officers involved in those 1,142 cases. According to the CCRB, the punishment most of those officers got was "instructions" on how to perform a proper search. The most severe discipline – doled out to eight officers – was docked vacation days.
Defense lawyers say these penalties are too flimsy to deter officers from conducting illegal searches.
Harold Crawford, a police officer for almost 30 years in Brooklyn who is now retired, said he would see cops do illegal stops and illegal searches -- and they would lie about it later.
"You could see a kid, walking down a street minding his business – him and his buddy – and out of nowhere, cops just stop, throw these two kids up on the wall, search them," said Crawford.
But Crawford said it's rare to see someone sticking up for his constitutional rights during a stop-and-frisk.
"You gotta remember – when you in these communities, when you’re these younger brothers and sisters walking the streets, when you got four officers surrounding you, telling you, 'Go into your pockets and do this, do that,' we recommend that's not the time to challenge an officer," said Crawford. "For the moment, comply, because all you gonna do by not complying is escalate."
So Crawford said these young men stay quiet as cops go into their pockets, their shoes, even their underwear – where they sometimes find marijuana.
"If police officers policed the Upper East Side of Manhattan the way they do in this community, there would be an uproar," said Robin Steinberg, who directs a legal defense organization in the South Bronx called The Bronx Defenders. "There would be an outcry. It would on the front page of the New York Times tomorrow, and I guarantee you there would be a lawsuit."
Source: New York State Division of Criminal Justice Services (Stephen Nessen/WNYC)
Pressure to Make Arrests
According to the New York State Division of Criminal Justice Services, the vast majority of people convicted in New York after a misdemeanor marijuana arrest ultimately walk away with a non-criminal charge called a violation and pay a fine. Even though most misdemeanor arrests turn into lesser charges, a study by the Drug Policy Alliance, an advocacy group, said the city continues to spend more than $75 million a year to keep arresting people for misdemeanor marijuana possession.
Several police officers who asked not to be identified because they didn’t want to get in trouble with their superiors, offered one reason: supervisors like to see arrests – it’s a sign of productivity.
That can put intense pressure on street cops to get results, said Eugene O’Donnell, a former cop and former prosecutor who teaches at John Jay College of Criminal Justice. And he said that’s the kind of pressure that can lead to illegal searches.
"The numbers-driven policing is a concern because officers may – in order to make those numbers – feel pressured to represent things that were true that weren’t true," said O’Donnell. "The department needs to state over and over again – out loud, unequivocally – that you don’t break the law to enforce the law."
Bronx resident Antonio Rivera, who was stopped on the street by police, initially wanted to challenge the improper search in his misdemeanor marijuana case. Rivera said they reached into his pants without his consent and pulled out a small bag of marijuana from his groin area.
Then he found out a misdemeanor drug conviction could cost him some of the financial aid he’s getting as a freshman at DeVry University.
"Even if I tried to fight it, I would probably still get bit for trying to pursue it," said Rivera.
So like thousands of others, he pleaded guilty to a lesser charge – in his case, disorderly conduct. Even though all he had to do was pay a fine, Rivera said he thinks the police only found his marijuana by searching him illegally.
"It makes me feel hopeless, basically, that they could just get away with stuff," said Rivera. "I feel completely powerless because it doesn’t matter – it’s up to them."
In the end, he said, challenging his arrest in front of a judge would have come down to a he-said, she-said game. Ultimately, it would have been his word against the police's.
Ailsa Chang is an award-winning journalist who covers criminal justice, terrorism and the courts for WNYC. She found her way into public radio after practicing law for five years, and can definitely say that walking the streets of New York City with a microphone is a lot more fun than being holed up in the office writing letters to opposing counsel.
Comments [31]
If blacks and latinos are the primary targets of such illicit behavior on the part of five-oh, why are blacks and latinos demonstrating such exquisite stupidity or laziness in refusing to stand up and resolve this issue intelligently?
As u can c ppl, john from the office, talks like an idiot. Millionaires even Billionaires smoke weed. How idiotic can u b 2 not understand weed was around b4 he or the lawmakers were around. Weed came from the earth legal, who are u 2 put a stop on natural growth in the name of population control. When u didn't make the man, how can u enforce a law upon him or her and call that legal. Communism @ it's finest and the idiots applaud...until it happens to them. Watch and c john from the office, watch and c.
It's not just happening on the streets, there are entering people's houses and apartments all the time without warrants. In those cases most of the time they become felony convictions - talk about pressure to plead when you loose all rights to appeal! This is a very serious violation of the 4th amendment of our Constitution which few people understand today. When the police violate the law and the prosecutors and courts protect the police there is no law.
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Blacks are the targets of illegal searches for pot, whites aren't. It doesn't matter who smokes more or who carries it more. Obviously, the propensity to smoke is the same across races, so targeting blacks for searches suggests racial animus. For you non-lawyers out there, that is raw proof of intentional discrimination. Why this hasn't become a matter for civil rights litigation is beyond me. If whites were the targets of these searches, it would not be tolerated politically. Why targeting blacks illegally doesn't get a legal response also is beyond me. And, where is the Black leadership on this? Their kids are the targets for enforcement that has almost nothing to do with public safety. It's impossible to talk about this without talking about race.
these searches take place constantly. we filmed this police officer, who excitedly showed us the ONE rolled up joint he found on the man as if this justified his actions. sad but true.
http://www.youtube.com/allthingsharlem#p/search/0/jSxUgiobcT8
John from the office...I'm sorry to say, you completely miss the point. The question here isn't what is illegal or legal. Everyone knows possessing marijuana is illegal (though more and more people are starting to agree it shouldn't be). The question here is to WHAT LENGTHS should the NYPD be allowed to go in order to nab an otherwise law-abiding citizen for this minor infraction, then jam-pack the judicial system with these cases that waste tax dollars and do NOTHING to improve the quality of life of the city.
If we agree that stop and frisks are a good way to arrest people we suspect might have possibly committed a crime at some point in his life, I suggest we follow this idea to its logical progression: warrant-less visit-and-search procedures of people's homes. That's right: if you live in neighborhood where the crime rate is higher than the crime rate in another area, the police should be allowed, on their own volition, to bust down your door anytime they please. Chances are the old women and kids who live there are completely innocent and have nothing to hide. Then again, who knows what the police might turn up? Maybe they'll find an mp3 someone downloaded from a fileshare site. Hey, it's illegal! Therefore, by NYPD standards it is worth the trouble, and worth violating someone's rights.
I think what a lot of the "Well, they're doing something illegal so who cares" people miss is that the number of arrests is only part of the story. What's missing is the number of people who are stopped, "frisked," and let go because they actually don't have anything on them. I live in Harlem and I've seen this happen plenty of times. I can't imagine the NYPD keeps detailed records of everyone they stop, search, or ask for ID who are in fact doing absolutely nothing wrong.
I think it would be interesting if you did a segment on Marijuana delivery services in NYC. When I lived in Manhattan it was common practice to have marijuana delivered to one's residence. A customer would call a particular phone number and it was basically like ordering pizza. Within an hour a courier would show up at your apartment, come inside, show you a selection of wares, you would pick out your desired product, give the guy some money, and he'd head out the door to make his next delivery. You would get the number of a delivery service by asking around one's social network among people you knew consumed cannabis.
Ask around the young people on your staff, they, or at least some of their friends most likely do this, especially if they live in Manhattan in a "nice" neighborhood. Or better yet do a call in and let the public tell you their experiences with delivery services.
This is part of the way that white folks reduce their risk of arrest. I don't think delivery services serve poor neighborhoods with predominantly people of color residing in them.
I think this would be an eye opener for people who aren't hip to the way it works in NYC.
Looks like NYC would have one hell of a turnout to protest these actions. Heck, they got 100,00 to turn out in WI. Over workers rights. This is the civil rights of the citizens of NYC (and the U.S. I might add).
How can anyone who considers themselves an American really support any part of these actions? I see "it's illegal so don't do it" as a response? Really??? Supporting these actions might be you're idea of protecting Society, but it sure is a lot closer to Nazi Germany than many would realize.
As for decrimilization. If it has been decriminalized, why are people in possession of it being treated like criminals? What is wrong with a ticket for a violation? Surely that was the original intent of decriminalizing possession.
Two of my white middle class friends have been victims of NYPD abuses so I am very inclined to believe that this is worse for people of color in NYC.
And yes, you do not want to contradict NYPD officers, or they may hurt you. And they will most likely suffer no adverse consequences.
I appreciate Ailsa Chang for doing this reporting, and kudos to Brian for having her on the show and doing a follow up. This is part of a necessary feedback loop to get the NYPD to act within the law.
Bloomberg and Kelly need a dose of shame to force them to take our civil rights seriously.
P.S. I bet a good chunk of Bloomberg's staff uses cannabis on a regular basis. It is a common practice among young, white, college educated professionals in NYC.
I hope Brian has a show on the themes in these discussions. The underlying themes seems to be civic responsibility and involvement and how individuals should respond to injustice.
One theme seems to be that smoking weed is harmless. The Mexican journalist and HighTimes' journalists disagreed in a recent show; these reports should expand that discussion . A caller into that earlier show pointed out minority neighborhoods suffered from drug wars; white neighborhoods don't. The show could include discussion on the exploited labor making knock-off handbags sold on the street and also street harassment of young women. No one forces men to make rude and threatening remarks to women; if they are trash talking with an open container it gets frightening. Why shouldn't minority women have the same right to walk in their neighborhood as white women? There seems to be an expectation of high levels of street crime and unpleasantness in minority neighborhoods; I don't see why citizens should tolerate that.
There are many points I would love to raise here but the article speaks for itself. NPR did attempt to include the NYPD's point of view, but Ray Kelly refused to be interviewed on the subject, and when confronted during a press conference he arrogantly side-stepped the issue saying, "It's illegal, if you don't like it, petition your local legislators."
It's absolute nonsense to argue the 'broken window' theory of low-level pot arrests reducing overall crime. One simply has nothing to do with the other. In fact, it's marijuana prohibition that leads to the majority of violence involved in the supply-side, most notably in Mexico.
In a state where legislators decriminalized marijuana right after Nixon began the war on drugs in the 1970s, I'm pretty sure the intent was to divert police attention towards minor pot possession, not concentrate presence in black and hispanic communities.
I could go on and on but most rational minded people are on the right side of the argument, notwithstanding former police officers.
This is awful. What a disturbingly petty violation of basic human rights.
John from office:I am a young white female, I smoke weed everyday. I am quite successful and find that weed has no negative effects on my life. Maybe you should rethink your gross generalization of weed. Additionally, EVERYONE smokes weed, not just blacks or latinos in poor neighborhoods. However, they are being targeted and unjustly searched. The underlying racism and classism in this situation is truly incredible. I can walk around the city with weed in my bag and never feel fearful that an officer would ask to search me. Furthermore, I can think of countless times that I have smoked a joint in public, had police pass by me and say nothing.... Lucky for me.
There is a simple solution, John from Office. Legalize it! That would prevent many of the illegal searches, protect civil rights, save $millions, and save lives. That's right, the most dangerous effect of marijuana is its prohibition. Look it up.
I can imagine it because I am hispanic and a former cop in the bronx. The fault lies with the lack of parenting in these area. Sorry, I dont have any sympathy here. It is illegal, dont do it.
You invite police action by your behavior. Pull up your pants.
JOHN FROM THE OFFICE...I wonder how many great works of literature were written by authors who used "stupefying substances". I would imagine quite a few.
But regardless of what you think about a citizen's decision to casually use marijuana, the fact remains that the police to do not have the right to "stop and frisk" random citizens, which is really just sanctioned racial profiling.
Imagine leaving your office and as soon as you're walking down the street, a police officer stops you and says that you look like you "might have" perperrated a crime. Then that officer, along with another officer props you against a wall, frisk you, go through your pockets, take out everything in your briefcase, remove everything from your wallet, then spend about 45 minutes running your ID through the system. All the while you protest saying that they have made a mistake, you never did anything wrong. To which the police say, "Shut up", or say nothing at all. Then imagine that this happens to you a few times each week. That's the way a great deal of people currently live in NYC.
I know what you're saying to yourself: "But those people the police stop and frisk are not coming from a hard day's work; they're just standing around on a street corner doing nothing with their lives." However, the truth is a large majority of people who are on the receiving end of stop and frisks ARE employed and/or students. In fact, it doesn't even matter what person's life goals (of lack of) might be. The reality is that in a democracy there are (and must be) limits to police powers.
It's troubling how many citizens in a democracy think these relatively new policies of stop-and-frisk procedures should be welcomed or even tolerated.
to answer Brian's question: MOST people do not know what a legal or illegal search is.. Most people accept the behavior of police officers without challenging. you have to remember that if any man of color shows ANY indication of challenging authority and is not completely SUBMISSIVE he will be executed on the spot - There is a consistent track record of extra judicial execution of innocent men of color during the Giuliani and Bloomberg administrations. - Bloomberg does not get much attention because it's done its done in a nicer, gentler mode - No 'In your face" attitude as exhibited during the Giuliani administration
'John from Office' : Maybe you should ask why marijuana is illegal in the first place. The quick answere is that after alcohol prohibition failed in the 1920's and the 18th Amendment to the Constitution was repealed by the 21st Amendment in 1933, it was easy to demonize marijuana because it was not a popular drug back then. The Marijuana Tax Stamp Act was passed by Congress in 1937. Since then the government has perpetuated outright lies about the effects of marijuana.
I totally disagree that marijuana brings nothing positive. It has medicinal value and is far less toxic than alcohol, tobacco and other illegal drugs. As this story shows, marijuana prohibition causes more harm than the drug does.
I just assume that when they frisk for pot they are looking for guns.
If so, then there is no doubt they would be frisking for pot wherever violent crime was normal.
Comparable to stopping cars with headlights out in order to look for, you guessed it, guns.
This is sickening. Regardless of the fact that marijuana is illegal, so are illegal search & seizures.
Police are supposed to protect and serve, not going out looking for and minorities in shadier neighborhoods. You cannot break the law to enforce the law. It's profiling and it makes my stomach turn.
Some comments here really get to me. I can't believe anyone is ok with this blatant violation of fundamental rights. Our whole system throughout the country is fundamentally flawed.
I usually find NPR to be fair and balanced, but not here. NPR: the police focusing on poor neighborhoods, reality: NYPD are focusing on high crime neighborhoods. NPR: illegal arrests, reality: marijuana is an illegal drug. NPR: Police do this to bolster stats, reality: this is the broken window theory at work that we all know works to prevent more crime. NPR: Arrestee too busy to defend himself in court, reality: stop smoking weed and take care of your responsibilities.
Landless: It starts at home, there is no parenting going on. Those boys you mentioned dont have any at home supervision. Brian, being white, is unwilling to approach the story from the stand point of why there is illegal activity, so the police are to blame for finding illegal activity. Marijuana brings nothing positive and further degrades the educational chances of hispanics and blacks.
This story and the comments bother me. Once again, as a leftist I am expected to side with problem people. Now, these arrests are bogus, but why carry weed and make yourself a target? Why carry an open container?It's stupid. In job sites, the union agitators know that they have to be hardest and best workers on site so the boss has no grounds for criticism. Just last week, I saw three young men of color riding the subway mid-day; I think school was out. They stank of weed and they were marking up the subway walls with black marker. Why not agitate for an education for them? They had nothing to do; why not have them learn calculus or improve their writing skills? Of course, the arrests are harassment, but the black community should demand more of its members and of society.
LANDLESS: That is the problem. Fighting for the right to get high is not fighting for your right to a good life. Cici is angry at the police and not at her son for getting into the situation. What if they searched him and found a book or a great work of literature instead of a stupifying substance.
The community is fight for the right to get high, poorly parent their children and dress like clowns, verifying the most racist stereotypes.
What might be worse is to be illegally searched and NO drugs or other controlled substances are found. What should one do in that case? Who do you complain to? The police?
Angela's neighborhood needs a police sweep. Mrs. Cici's son needs to wise up and stop giving the nypd reasons to arrest him. I wish the black community would regain its militancy for full lives instead of accepting this victimized life dominated by petty crime. Race relations would improve.
Cici, did you ever stop and think your son should not be smoking pot. Is he in school did he graduate high school, get a GED. How about parenting him and not blaming the police.
I live on Ludlow Street in Manhattan,
the new hot spot for many. In the evenings the street is spilling with young, majority white youth smoking cigs, drinking, some behaving very rowdy. If this was a majority black or latino crowd the police would be hot on their tail, for sure. Usually there are one or two police parked in the neighborhood sitting in their car.
My son has been arrested multiple times for possession of small amounts of marijuana. Though not always the result of stop-and-frisk, there are few things that are not kosher about the whole thing.
- In more than an instance my son had money on him which I have given him, yet it was claimed that it was the result of drug dealing.
- In more than an instance while in the precinct he has felt the smell of marijuana smoke in the precinct
- If one thinks that something wasn't right about the arrest, one should plea not guilty and let a judge and a jury decide. Instead the public defenders push people to accept a guilty plea to a lesser charge and the prosecutors are more than happy to oblige. The problem with that however is the fact that even if you only get a violation, the arrest remains on your record. Nobody explains this to eh people arrested. It is part of the expediency of the judicial system. Most people arrested are young adults and their record will be scarred for the rest of their lives, especially than NY state has no expunging laws.
Note that Mrs. Rucker is a woman of color.
Something similar happened to me recently. My brother was stopped by NYPD for holding an open container. Instead of writing him a ticket, the police inexplicably placed him under arrest. When my brother protested, 4 officers tackled him, handcuffed him and continued to punch in the head and knee him in the groin. This was all caught on videotape. I watched this unfold from about 10 ft away. When a witness came forward to try to give me his phone number, the officers grabbed me, slammed me into a wall, and placed me under arrest. When I asked the arresting officer why I was under arrest he replied, "I don't know. Shut the f*ck up." At the precinct they went through my jacket pockets and found, among old receipts and lint, a small empty bag that had once contained drugs. They then charged me with misdemeanor possession. I don't see how they had the right to even arrest me.
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