One evening in November of 2004, Officer Gagliostro was on "vertical patrol" -- or, "on foot," as others might say -- dutifully monitoring the streets of Manhattan when, through the well-lit vestibule windows of a public housing project, he observed Kasime Hendricks standing idly beneath a conspicuously posted "No Loitering" sign.
Since this building was believed to be a veritable turnstile for vice traffickers, Gagliostro approached Hendricks and inquired whether he was a resident or an invited guest. Dissatisfied with the responses received, Gagliostro placed Hendricks under arrest for trespass. When backup arrived, a search uncovered $794 in cash and a box cutter in Hendricks's right pants pocket and a rolled up paper bag in the left pocket.
Gagliostro opened the bag and discovered a small stash of crack cocaine. At trial, the officer testified that he had the situation under control, that he did not believe that Hendricks was a flight risk or that the bag contained a weapon.
When Hendricks moved to suppress the evidence taken from his person, arguing that there had been no probable cause to arrest him and that the warrantless search of the paper bag was unlawful, the New York County Supreme court ruled against him on both counts and convicted him for criminal possession of a controlled substance in the fifth degree and sentenced him to 2½ years in prison.
On appeal, the Appellate Division, First Department, disagreed with that outcome and reversed.
While upholding the lawfulness of the arrest, the court found that, in order to justify the search of the bag, Gagliostro must have had reason to believe that the contents posed a danger to him, or, that there was a legitimate need to preserve the evidence thought to be inside the container. Since Gagliostro conceded that he did not suspect that the bag concealed a weapon nor contained evidence relating to the trespass, the AD1 concluded that Hendricks's motion to suppress the evidence should have been granted.
As a result, the conviction for criminal possession was reversed and the indictment was dismissed.
Someone may want to consider playing the lottery while his luck holds.*
For a copy of the Appellate Division's decision, please use this link: People v. Hendricks
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*That reminds us of an old joke, which goes something like this:
A devout religious man found himself in dire financial straights and reached out to the Almighty for assistance.
"G*d, I am in need of your help," implored the man. "I am destitute. I've lost my entire business and, if I don't get some money soon, I'm going to lose my home. Could you please help me win the lottery? I would be eternally grateful."
The night came and went, and the local news announced that somebody else had won the multi-million dollar prize.Distraught, yet resolute, the man again resorted to prayer.
"Oh Lord, maybe you didn't hear me the other night, but please, I need to win the lottery! I've lost my home, and I'm going to lose my car. Could you please cut me a break here?"
Lottery night came and went and, yet again, someone else captured the jackpot.
Distraught, and at the precipice of despair, he again reached out to the Almighty, "I've lost my business, my home, AND my car. My children are starving. My wife is threatening to leave me. I've never asked you for anything, I have always been a loyal servant. Why, oh why, have you forsaken me?"
Suddenly, there was a blinding flash of light, the earth trembled, and, as the heavens opened, the thunderous voice of G*d commanded:
"BUY A TICKET, DUMMY!"