How Bronx Prosecutors Avert Any Challenge To Marijuana Stop-And-Frisk Arrests

In New York City, marijuana is the most common reason for arrest, even though only possession of marijuana in public view is a crime. A dramatic spike in these arrests has accompanied the rise of the New York Police Department’s controversial stop and frisk tactic, and an equally controversial reported tactic of considering the marijuana in “public view” once a suspect is ordered by police to take it out of a pocket. Almost all of these cases end in plea deals, and most who are not charged with anything else plead guilty to a non-criminal violation such as disorderly conduct, even where the evidence would have shown that suspects did nothing wrong at all. Even these plea deals come only after arrestees have been detained, often for 8 hours or overnight in jail, and sacrificed an additional day to return to court.

But those who dare to actually defend the charge in court — particularly in the Bronx — find that there is no place in the legal system for misdemeanor due process. After a two-plus-year trek through the legal system with 54 clients who challenged their marijuana arrests in the Bronx, nonprofit Bronx Defenders found that prosecutors use chronic delay and mandatory court appearances to effectively kill every marijuana possession defense attempt. Rather than accept a plea deal, these defendants pled innocent. They showed up to court. And then they showed up again, waiting full days in court behind hundreds of other defendants before being told that the prosecutor was “not ready.” Since Bronx Defenders began this process in July 2011, not one of the 54 marijuana defendants had a suppression hearing — the initial hearing at which the prosecutors are tasked with producing physical evidence of the alleged crime. Courts so clogged with delayed cases that they have become little more than “plea bargaining mills,” as the New York Times puts it, treat misdemeanors as a particular afterthought, with threats of overly punishing sentences lorded over clients to extract a guilty plea and plow through overwhelming caseloads. As a result, a study released Wednesday concludes, it was “virtually impossible … to effectively litigate the constitutionality of street-level police behavior.” Take the story of 17-year-old Angel Cardona, whose name has been changed:

In the waning days of summer 2011, Angel Cardona … chatted with three friends — two female and one male — while waiting for a bus that would take him home for the night. Before the bus arrived, however, a marked police car pulled up to the bus stop. The officer in the passenger seat beckoned the teenagers over to the car and began to question the two young men in the group. A moment later the officers were standing on the sidewalk and Angel and his friends were lined up along a nearby railing and forced to assume the search position. One of the officers frisked Angel and then went through his pockets. The officer found a partially smoked marijuana cigarette in a small plastic box in Angel’s right front pants pocket. Angel was arrested and spent approximately 8 hours in police custody before being issued a desk appearance ticket.

Three months later, Angel and his mother, a home health aide who had taken the day off to accompany her son to court, arrived in Bronx Criminal Court for Angel’s arraignment. There they discovered that the police officer who had arrested Angel claimed, falsely, that he had seen Angel smoking marijuana on the sidewalk, resulting in a misdemeanor charge (simply carrying marijuana in one’s pocket is a non-criminal violation). […]


Almost 10 months later … Angel and his mother sat on a bench in the lower level of the Bronx Hall of Justice dejected, frustrated, and resigned to the realities of the criminal justice system. The prosecutor had not been ready for hearings or trial on either of the past two trial dates and had indicated that she would state “not ready” for a third consecutive time. At Angel’s first post-arraignment court appearance, the presiding judge had openly questioned Angel’s decision to request a trial and pressured him to accept the prosecutor’s offer. Angel stood his ground, and he and his mother made 3 more court appearances, missing school and work, respectively, on every court date. Each time, they waited for an opportunity to confront the officer who had unconstitutionally stopped, frisked, and searched Angel. But their patience (and Angel’s mother’s vacation days) had run out.

Rather than endure another 2-month adjournment on the potentially empty promise of a hearing, Angel accepted the prosecutor’s offer and pled guilty to disorderly conduct — 392 days after his initial arrest. He promptly paid the $120 mandatory court surcharge and moved on with his life, but not before confessing a newfound disillusionment with the criminal justice system.