Alleged Illegal Searches by NYPD May Be Increasing Marijuana Arrests

[This is the first story in a two-part series. Read the second part here.]

Police arrest 140 people every day in New York City for possessing small amounts of marijuana. It's now by far the most common misdemeanor charge in the city, and thousands of these arrests take place when police stop-and-frisk young men in the poorest neighborhoods. While police say these stop-and-frisks are a way to find guns, what they find more often is a bag of marijuana.

An investigation by WNYC suggests that some police officers may be violating people’s constitutional rights when they are making marijuana arrests. Current and former cops, defense lawyers and more than a dozen men arrested for the lowest-level marijuana possession say illegal searches take place during stop-and-frisks, which are street encounters carried out overwhelmingly on blacks and Latinos.  

Alleged Illegal Searches

Antonio Rivera, 25, said he gets stopped by police up to five times a month. In January, he said he was stopped and frisked near the corner of E. 183rd Street and Creston Avenue in the Bronx. He was arrested for misdemeanor marijuana possession. Critics of the police say his case is an example of how officers may be conducting illegal searches when making marijuana arrests.

Rivera said his marijuana was in his pants and that police pulled it out of his clothes after searching him without his consent.

"So they checked my pockets, my coat pockets, and they patted my jean pockets," Rivera said, "and then once he felt the package I had in my crotch area, he went into my pants and he pulled it out."

Rivera had lodged a soft Ziploc bag of marijuana between his legs inside his pants while still in the room where he bought it.  He said he never took the drugs out when he went outside, but the police officer who arrested him told prosecutors Rivera was openly displaying his drugs.  

In the criminal complaint against Rivera, the arresting officer stated that he "observed the defendant to have on his person, in his right hand 1 ziplock bag containing a dried-green leafy substance with the distinctive odor alleged to be marijuana in public view."

There is no record of how many illegal searches take place every year.  In a written statement to WNYC, police spokesman Paul Browne acknowledged that illegal searches do happen, and officers get disciplined when the department finds out.  

"If an officer conducted an improper search, he is instructed on how to do it properly; unless it was particularly egregious in which case he would face more severe disciplinary action," said Browne.  

Under New York State law, possessing a small amount of pot becomes a crime – a misdemeanor – when it is smoked or displayed "open to public view." If the marijuana is concealed on the person, possession of the drug is only a violation, which is not a crime. The person receives a ticket and fine.

 

 

Robin Steinberg, executive director of South Bronx legal defense organization Bronx Defenders, handles thousands of marijuana arrests a year.  She said, in most of these cases, police either ordered the person to empty his pockets or, as in Antonio Rivera's case, searched his pockets themselves – that's how the drugs get into "public view," she said.

"So the police officer in fact is creating a type of criminality," Steinberg said.

"Now, I've worked in this community for 13 years, and I just never see people standing on street corners with their hands wide open, palms open to the sky, with bags of marijuana sitting in their hand," she  said. "It's nonsensical. Everybody knows it’s not true."

Carrying around small amounts of marijuana was supposed to have been decriminalized by New York State in 1977, when the Marijuana Reform Act made possession of less than seven-eighths of an ounce of marijuana a violation.  But state data shows that police officers now arrest people for the lowest-level misdemeanor marijuana possession at five times the rate they will issue tickets for marijuana possession violations.  

Marijuana That May Never Have Been In "Public View"

WNYC tracked down more than a dozen men arrested after a stop-and-frisk for allegedly displaying marijuana in public view.  Each person said the marijuana was hidden – in a pocket, in a sock, a shoe, or in underwear.  There's no videotape to confirm their accounts, but they each said the police pulled the drugs out of his clothes before arresting him for having marijuana in public view.  None of them had been buying their drugs outside. And none of them were carrying a weapon when they were stopped.
 
Leo Henning (Photo left), an African-American, said he was walking with a Ziploc bag of marijuana in his sock – under his foot – when two officers stopped him in March on a street corner in East Harlem.  He had just bought the marijuana inside a warehouse several blocks away and had tucked the bag in his sock before he stepped outside, he said.  Henning said one of the officers who stopped him placed his hands on him almost immediately.

"They patted me down, and they checked the outside of my sleeves of my coat," said Henning.  

 During the pat-down, the police officer felt two hard objects. He allegedly reached into Henning's jacket and pulled out a cell phone and a bottle of cologne. But the search didn’t end there, Henning said, and the officer began putting his hand inside his pants.

"He went into my front right pocket. Then he went into my front left pocket," Henning said. "Then he went into my right back pocket. Then he went into my left pocket."

Finding nothing, Henning said the officer stuck his fingers down Henning's left sock.

"And then he switched over to my right sock," Henning said. "He stuck his hands in. His fingers was going under my foot inside my sock. That's when he felt it, I gather."


At that point, the officer allegedly pulled out the bag of marijuana and arrested Henning for displaying marijuana "open to public view." Henning spent the night in jail.  

Hasan Covington (Photo right), 32, a black man from Marble Hill, was carrying two small bags of marijuana in his left jacket pocket when he was walking near White Plains Road and Archer Street in the Bronx. Covington has a long rap sheet, including one robbery and a few attempted robberies 10 years ago.

Two officers approached Covington and he said they directed him to stand up against a fence.

"They ask, 'Yo, you got anything on you?'" Covington said. "I was like, 'No.' 'You got anything on you that we can poke ourselves with? Got any guns on you?'  'No.'"

 Covington said the officers began patting him down – starting at the shoulders, moving to his chest and midsection, and then sliding their hands to his legs.  

"Then they’re in the pockets," said Covington.

Covington said one officer slipped his hands into each of his jeans pockets and each of his jacket pockets before he found the marijuana. He said he never consented to a search.

Illegal Searches as a "Fact of Life"

The lawyers for Antonio Rivera, Leo Henning and Hasan Covington all say police found marijuana on their clients only after an illegal search. The law in this area is specific.  


First, for a police officer to stop someone, he needs reasonable suspicion the person is committing a crime. These men say there wasn’t any reasonable suspicion in their cases – they were just walking down the street.  

Second, a police officer can pat down the outside of a person's clothing only if he believes he or she is carrying a weapon.  He can only search a person  – that is, go inside a pocket – if he thinks he feels a weapon there during the pat-down. But Hasan Covington said police officers don’t seem to understand the difference between a search and a pat-down.

"I've never experienced a pat-down in my life, where officers do not go into your pockets, do not go into your pants, do not open your jacket, do not fondle your genitals, do not ask you to take your boots off," said Covington.

Browne, spokesman for the NYPD, said if an officer feels any hard object during a pat-down, he can search the person. But Peter Moskos at John Jay College of Criminal Justice said that's not the law.

"Any hard object does not give you the right to go into a pocket and search," said Moskos.  

He said the hard object has to feel like a weapon, or be big enough to store a weapon – and if it turns out it's not a weapon, the search ends there.  

"If you feel a hard object in one pocket, you can go into that pocket to investigate, but that doesn't give you the right to go into every pocket, and in people’s crotches and shoes and socks," said Moskos.

But Robin Steinberg said her clients get searched all over their clothes so routinely during police stops, she's accepted illegal searches as a fact of life.

"When enough people tell a story in the same way, with the same facts and the same circumstances over and over again – completely different people from different neighborhoods and different backgrounds – you begin to understand that that chorus of voices reflects a reality," said Steinberg.

Source: New York State Division of Criminal Justice Services (Stephen Nessen/WNYC)

Blacks and Latinos Dominate Arrest Numbers

And part of that reality, she says, is that almost all these voices belong to blacks and Latinos.  

Even though national studies show young whites between 18 to 25 years old smoke pot more than non-whites that age, almost 90 percent of the people arrested for marijuana in the city are black or Latino.

"In New York, blacks are arrested at seven times the rate of whites, and Latinos are arrested at about three to four times the rate of whites. All this is happening even as young whites use marijuana at higher rates than blacks and Latinos," said Harry Levine of Queens College, who has been tracking the city's marijuana arrest rates for years. 

Levine said that's because they live in neighborhoods filled with police. Many of the precincts with the most marijuana arrests are the precincts with the most stop-and-frisks – places like Brownsville, Brooklyn, East Harlem and the South Bronx.  

On top of that, Levine said the racial breakdown of the people getting arrested for marijuana is nearly identical to the racial breakdown of the people getting stopped-and-frisked. Almost 90 percent of the people getting stopped-and-frisked are black or Latino.  

Levine said it's not that blacks and Latinos are more likely than other New Yorkers to be smoking a joint in public – it's that they're most likely to get stopped, frisked and sometimes searched.

Antonio Rivera said that fact of life eventually erodes trust in the police.

"People in this neighborhood – they tired of the cops," said Rivera. "Every time they see cops, they see trouble. They know they gonna come around, they gonna bother somebody."

But the police say they're getting results. They claim cracking down on low-level offenses like marijuana reduces violent crime. Rivera’s precinct saw murder drop 85 percent in the last 20 years, and it has one of the highest marijuana arrest rates in the city.  

But law enforcement experts say it's impossible to single out these misdemeanor arrests as the cause of any long-term reduction in violent crime. 

Meanwhile, arrests for marijuana keep climbing under Bloomberg’s Administration – and just broke 50,000 last year.  

"Marijuana is against the law, or smoking marijuana," Police Commissioner Ray Kelly said during a recent press conference. "Officers encounter those situations in the street, they take action. If anyone thinks that’s inappropriate, they should petition the state legislature to change the law."

Leo Henning said police found marijuana on him only after reaching into his sock.