At what point does an "illegal" search become a "legal" one? Apparently, the New York County Supreme Court and the Appellate Division, First Department, had some different perspectives on that issue.
In the case of People v. Packer , when Andrew Packer was frisked after his car was pulled over by the police, officers uncovered a small knife. Moments later, when Police Officer Jones asked Packer for identification, Packer reached for a backpack, but was stopped by the officer who then asked if he could retrieve the identification from the backpack. When Packer consented to the search, Jones discovered a second knife.
The New York County Supreme Court concluded that the first knife had been illegally obtained by an unwarranted search and suppressed its introduction at trial. But, as to the second knife, the court held that Packer voluntarily, without coercion, gave his consent to a search. As a result, Packer was sentenced to one-and-a-half to three years in prison for attempted possession of a weapon in the third degree.
On appeal, the Appellate Division, First Department, reversed.
Because the vehicle had been blockaded by the police, and Packer was prevented from leaving the scene, the AD1 was of the opinion that Packer had been in constructive police custody. In order to convict Packer, prosecutors had to show that Packer's consent to the backpack search was voluntary and not the result of coercion.
Consent is not voluntary unless "it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice." Here, the AD1 found that the initial frisk was "highly intrusive police conduct, the coercive effect of which could not have abated when, only moments later, [Packer] consented to the search of his [back]pack." Accordingly, the judgment was reversed and the indictment dismissed.
In a lengthy dissent, Justice Bernard J. Malone, Jr. advocated the application of a balancing test, "weighing the degree of intrusion entailed against the precipitating and attending circumstances out of which the encounter arose." Here, Malone was of the opinion that the "search was not overly intrusive; nor was it an invasion of (Packer's) privacy."
We're wondering if Packer is still packing?
To download a copy of the AD1's decision, please use this link: People v. Packer