Andrew D. Correia,
First Assistant Wayne County Public Defender
The Court of Appeals recently issued a decision on two consolidated cases (People v Brannon and People v Fernandez (2011 NY Slip Op 03676, _ NY3d _ [5/11/11) which set forth the level of knowledge a police officer must possess before, consistent with DeBour, he or she has reasonable suspicion to believe an individual possesses a gravity knife as opposed to a legal pocketknife.
In People v Brannon , the officer testified that the defendant’s behavior was “somewhat suspicious” in not wanting to walk near the officers. The officer observed a hinged top of a knife in a back pocket. He asked the defendant to stop twice before he complied. The officer saw the outline of what he believed to be a knife. When asked, Defendant admitted he had a knife. The offficer frisked defendant and took the knife. It turned out to be a gravity knife. Officer claimed 4 ½ years experience and 24 previous arrests for the same crime. However he stated that the knife had appeared to him to be a “typical pocketknife.”
In People v Fernandez, the officer stopped the defendant for walking at 12:30 AM with a partially visible knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. The officer approached and “retrieved the weapon” asking defendant if he had any other weapons. Defendant stated he had another knife in his left jacket pocket. Both knives were opened and confirmed to be gravity knives. The officer claimed 4 ½ years experience and 300 arrests involving gravity knives. He described the difference between a knife and a gravity knife. He said that gravity knives are often clipped to a pocket with the ‘head” sticking up outside the pocket.
The issue in these cases was whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.
The Court held that the search in Brannon was bad, but not for the reason you might think, such as: no one can know if a pocket knife is a gravity knife until it is seized and opened. Instead, the Court reasoned that since the police officer was “unable to testify that he suspected or believed it to be gravity knife”, it was a bad search and the indictment was dismissed. Although, Mr. Brannon was, thus, able to win, this decision potentially provides a path to conviction for every other person searched by a police officer, who unlike the officer in Brannon, who is more willing and able to testify that the knife appeared to be a gravity knife. Especially since, when the police guess wrong, and it’s just a regular pocketknife, that police action will likely never see judicial review.
In Fernandez, the officer testified that, based on his remarkable weapon-gathering experience [averaging about one gravity knife every 5.4 days for his entire career at the time of his testimony] that gravity knives are commonly carried clipped and sticking out of the pocket. Despite the fact that, as pointed out by Judge Jones in dissent, a gravity knife can only be confirmed by its operation, this speculative information, couched in terms of the officer’s experience, was enough to persuade the other judges on the Court that this was a lawful search. Thus, the boastful and imaginative officer is rewarded.