Friday, June 13, 2014

The NYPD has nothing better to do

Crime is down, so we have to find new criminals. The NYPD is doing this through "Operation Lucky Bag," in which the officers leave a decoy handbag or wallet lying around in Central Park and wait for greedy slob to walk off with it. The lucky bag finder is arrested if he exhibits an intent to steal it, i.e., he throws away the bag after removing something from it, usually money. In this case, a woman found the bag and was arrested. She sues the police.

The case is Schwartz v. Marcantonatos, a summary order decided on May 20. Plaintiff found the bag and placed it in a shopping bag. She never looked inside her lucky bag. Instead she headed toward the Visitor Center. A bike-riding and plain-clothed lieutenant then approached plaintiff in an effort to set her up for arrest. He asked if plaintiff had found his wife's bag. She said no. Of course, there was no "wife" in sight. Plaintiff was then arrested even though she was taking the bag to the Visitor Center. She spent four hours in custody before the charge was dismissed.

Let's review what's going on here. In your typical "Lucky Bag" case, no one intended to break the law when they entered Central Park that day. But they see a bag lying around. Of course, they look inside to see if there's any money. Factually, no one commit a crime because the bag did not belong to anyone. But subjectively, they intended to do something improper. Still, there's something funny going on here. This is a set-up. I've watched enough Law and Order to know that someone can claim entrapment. There has been much scrutiny into Operation Lucky Bag over the last few years. This is because it sounds like the police are looking for something do.

Anyway, Schwartz can sue the police. The Court of Appeals (Jacobs, Lynch and Sack) says the jury may find that the police knew that plaintiff did not intend to run off with the bag. Schwartz took nothing out of the bag , and never opened it or looked inside. While she denied possession, "that reaction to what could have been a scam does not bespeak theft. In the scenario, created by the officers, a woman in possession of an apparently lost handbag refuses to turn it over to a stranger illegally riding a bicycle, who claims it belongs to his wife, with no apparent spouse in view." In addition, "Schwartz told the arresting officers that she planned to take the bag to the visitor center. Common sense and police experience confirm that a thief will often tell police that they intended to turn the bag over to the authorities. However, the officers failed to consider the honest alternative. Schwartz walked away from the bench in the direction of the Dairy Visitor Center, and was mere steps away from it. Based only on the plaintiff’s version of the facts, the officers had neither probable cause nor arguable probable cause."

1 comment:

Appellate Squawk said...

They don't put up with that nonsense in Da Bronx.