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Study: NYPD violating Kelly edict to end improper marijuana arrests

Bronx Defenders survey of hundreds arrested for possession finds most were improperly forced to show drugs to police

Six months after New York City Police Commissioner Ray Kelly ordered all police officers under his command to cease arresting people carrying marijuana, many are still being handcuffed and sent to jail after officers coerce or trick them into displaying the drug.

That’s the conclusion of a close review of 517 cases by Bronx Defenders, a criminal defense and legal advocacy organization, which found that nearly half of those picked up for small amounts of marijuana possession in recent months were not displaying the drug before they were stopped.

Scott Levy, an attorney at the Bronx Defenders, the legal and advocacy organization that led the survey, said: “This is clearly an illegal practice. And the fact that it hasn’t stopped since Commissioner Kelly issued his memo, suggests there is a deep disconnect between what happens on the street and what the top brass in the NYPD are saying happens.”

Under New York law, possession of 25 grams or less of marijuana is a misdemeanor offense, a violation that brings a $100 fine. Only when the drugs are in public view are the police permitted to make an arrest for drug possession.

Last September, Kelly issued an order to officers not to arrest people caught with small amounts of marijuana. Yet the number of those arrested increased after the order was made. In all, about 50,000 people were arrested in 2011 for marijuana possession; some 30,000 of these came after police stops.

In August 2011, the NYPD made were 2,486 arrests after police stops. In October – after the Kelly order – the NYPD arrested 2,661 people on the same charge. That number dipped slightly in November and December, but was still higher than the same months in previous years.

Until now, no one has been able to tell how many of those arrested may have occurred only after a police officer compelled a suspect to pull the drugs out of his or her pocket, which gave them cause for arrest.

To get more detailed data, Bronx Defenders teamed up with attorneys from the law firm Cleary, Gottlieb, Steen and Hamilton to review police records and personal accounts. According to the survey, before the Kelly order, 33 percent of those arrested reported being coerced to show marijuana that had been hidden. After the order, the share increased to 44 percent.

The NYPD did not respond to a request for comment. In the past, it has vigorously defended its policies, arguing that stop and frisks save lives.

But members of communities impacted by stop and frisks disagree, arguing that the policy has resulted in a form of institutionalized degradation that disproportionately impacts African American and Latino youth. They say the tactic leads to harassment and erodes trust between police and the public.

Darnell, who lives in the South Bronx who and requested his last name not be used, was stopped by the NYPD as he was crossing 170th and Valentine streets last October. He said two officers patted him down but stopped short of searching him in public. Instead, they took Darnell back to the precinct and asked him to remove his pants and underwear.

“They went through everything, and finally found about $20 of marijuana in my hat,” Darnell said. “They didn’t give me no reason for stopping me in the first place.” Darnell was held for 12 hours in the precinct and charged with a misdemeanor.

Vinci, another Bronx resident, tells of a more recent interaction with the NYPD the night before the 2012 Superbowl. “I was coming out of the store and the police stopped me” Vinci said. “I felt real awful you know, it was in front of everyone and I hadn’t done anything wrong.”

In Vinci’s case the officers allegedly searched him on the street and took a small amount of marijuana from inside his pants. Vinci was locked up for 38 hours and released just in time to watch the final minutes of the game.

“It was a distressing experience,” he said, ” Makes you realize it can happen any time any place.”

NYPD data on all stop and frisks conducted in 2011 reveals officers suspected just over half of those ultimately arrested for marijuana of carrying the drug.

In some instances police specified they could smell marijuana or someone was actually smoking it in public. Other reasons police stopped people who they subsequently arrested for marijuana were “furtive movements,” “suspicious bulges,” “being in a high crime area” and “other.” Of those stopped last year, 85 percent were black or Latino and 94 percent were male.

“If the Kelly order had worked, if his directive had remotely worked,” said Levy, “these types of unconstitutional arrests just shouldn’t still be happening so frequently.”

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