Second Department Holds Search Unlawful
November 19, 2015
After officers in a police car saw appellant Wayne Scott talking “irately” on his cell phone, they pulled up to him, and he explained that he was having an argument with his girlfriend. When the officers began to get out of the car, Mr. Scott ran. One officer saw what appeared to be the handle of a gun under Mr. Scott's jacket, and the officers chased him until he entered his home. Officers from the Emergency Services Unit (ESU) arrived and entered the home, where Mr. Scott surrendered.
No gun or contraband was found on Mr. Scott's person. After an initial search by ESU had concluded, the original patrol officers returned to the house to conduct another search. They found 50 bags of marijuana, a substance that appeared to be ecstasy, and, in a closed storage bin, a gun wrapped in a bandana. Marijuana was also found in a backpack that Mr. Scott dropped while being chased by the police. The hearing court suppressed the gun, but denied suppression of the rest of the physical evidence, and the jury convicted Mr. Scott of criminal possession of a controlled substance in the seventh degree, resisting arrest, and criminal possession of marijuana in the fifth degree.
The Second Department suppressed the ecstasy and marijuana found in the house, dismissed those counts, and held that the evidence was insufficient regarding the marijuana in the backpack because the officer was “unable to identify the marijuana specifically recovered” from that bag. (The court affirmed the resisting arrest conviction.)
Nao Terai briefed and argued the case.