Milbank Tweed Hadley & McCloy LLP associate Alexis Kim successfully argued an appeal for a pro bono client in a search-and-seizure case before New York’s First Department Appellate Term. This is the second pro bono criminal appeal Ms. Kim, of the firm’s Litigation Group, has won since joining the firm in 2015.
In early 2014, the client was forcibly stopped by police officers who had watched him enter a residential building, exit and enter the freight entrance of the building next door, and then enter and exit a third building, which he left carrying a duffle bag. Characterizing the neighborhood, New York’s Union Square, as a “high crime” area, the officers stopped the client on suspicion of burglary and asked him if he had anything illegal in his possession, whereupon he surrendered a gravity knife and was charged with its possession. During the suppression hearing, both the client and police officer testified about their recollection of the police encounter. The lower court denied the motion to suppress the gravity knife, and the client thereafter plead guilty to possession of a weapon.
On appeal, Ms. Kim revisited the argument to suppress the gravity knife. In New York, she explained, there is a four-tiered method for evaluating the permissibility of police encounters. The lower court had found that the officers had a “reasonable suspicion” that the client was committing or was about to commit a burglary. “Reasonable suspicion” is a level of suspicion that legally supports a forcible police stop. But Ms. Kim argued that the client’s behavior was easily susceptible to an innocuous explanation, which meant that the police had, at most, a “founded suspicion of criminal activity” not a reasonable suspicion of it. And since a “founded suspicion” is not enough to support a forcible stop, the officers did not have authority for the stop. Because the officers lacked the requisite level of suspicion, Ms. Kim argued that the gravity knife should have been suppressed as “fruit of the poisonous tree.”
In its decision, the appellate court provided an explanation of the fact pattern and addressed in detail why the officers did not have “reasonable suspicion” to believe the client was committing a burglary. The client had entered three buildings because he was lost, and exited the third building with a duffel bag because he was borrowing something for his daughter from a friend. “The fact that defendant exited a building with a duffel bag in an alleged high-crime area does not constitute a factor sufficient to create reasonable suspicion that he was committing a burglary,” the court wrote in its opinion, People v. Suazo, 2017 WL 1201016, at *1 (First Dept. App. Term. March 31, 2017). The court accepted Ms. Kim’s argument that the weapon should have been suppressed, concluding that “the officers did not have a reasonable suspicion to forcibly stop and detain defendant,” and consequently reversed the judgment of conviction.
“I’m always impressed by how well the panel of judges prepare and ask questions during oral argument – it’s an invaluable experience for me as a litigator, and of course it’s gratifying to see justice served for our client. Hopefully this decision helps clarify the boundaries of permissible police encounters under New York law,” Ms. Kim says. This case came to Milbank through The Legal Aid Society’s Criminal Appeals Bureau.
