FindLaw | Legal News & Information

This week's episode serves as a chilling reminder that in a big city, a murderer can kill in broad daylight, on a public street, and still escape. Witnesses to such events are taken by surprise, and are thus often incapable of making an identification. Moreover, in the confusion they frequently fail to realize what has happened until after the perpetrator has left the scene.

Ironically, a tragic real-life example of this phenomenon is at play in Manhattan this week. At the time of this writing, the police are still searching for the assailant of Nicole Barrett -- whose attacker bashed her in the head with a brick as she waited for a traffic light on a busy mid-town street in the middle of the afternoon. The mere presence of witnesses will not always solve a case.

In this week's episode Eva Harrison is shot in the middle of the day near the school at which she teaches art. Her killer is Bobby Sabo, riding by on a bicycle, who unsuccessfully attempts to steal her purse. Witnesses fail to make an identification. The situation is further complicated by the all-too-common phenomenon in Manhattan of foreign tourists who are witnesses, who have already returned home when their services are required to view a lineup.

Because the murder occurs in the course of an attempted robbery, it is potentially a capital case. The police are under tremendous pressure to make an arrest. The pressures are particularly acute for Detective Lenny Briscoe, who finds himself frustrated by his own mistakes and the limitations of his aging body. In their eagerness to find Sabo and the weapon, the police embark upon a series of investigative searches, most of which are unconstitutional.

First, the police locate Danny Ruiz, known to have a unique bike similar to the one ridden by the killer. While Briscoe interviews Ruiz at the entrance to his apartment, Green enters another room with neither Ruiz's permission nor a warrant. There, he finds the bicycle. While police are permitted to seize any item they may see in plain view from a place in which they are properly standing, they cannot, without the owner's permission or a warrant, search for items outside their plain view. Despite the violation, the bike has the fingerprints of Bobby Sabo, a known purse-snatcher, on it. And Sabo has no standing to challenge the constitutionality of the seizure of the bike because he had no expectation of privacy in Ruiz's apartment (the place from which the bike was taken). Thus, the improper seizure of the bike will not affect any case against Sabo. This theme - of Sabo's possessions being abandoned in the homes of others such that he loses any expectation of privacy under the Fourth Amendment - plays out several times in this episode.

A second police violation occurs when they search Sabo's grandmother's apartment while waiting for a search warrant. This illegal search is without consequence, however, because nothing is found.

Later, while interviewing a girlfriend of Sabo's cousin, the police observe as she receives a phone call regarding the suspect's whereabouts. Without her permission or a warrant, the police immediately dial *69 in an effort to identify the caller. I believe the seizure of the phone number would probably be deemed proper due to the exigent circumstances. A court would likely rule that the police had to act immediately or risk losing the phone number if another call came in while they were trying to obtain a search warrant. And once again, since Sabo is not the owner of the phone, he has no standing to challenge a seizure of the phone number. The evidence could be properly used against him.

The police then search a car belonging to the same woman, believing the car was used by Sabo's cousin to assist him in an attempt to leave town. They search the car without a warrant or her permission, and the search yields a gun. Once again, Sabo would have no standing to challenge the propriety of a search of someone else's car. Moreover, anyone leaving a gun in a car belonging to someone else has abandoned it, thus forfeiting any expectation of privacy in the gun. In any event, the gun ultimately has no evidentiary value after a ballistics check reveals it is not the murder weapon.

Hot on the trail, the police finally locate and arrest Sabo at an outdoor basketball court. A number of others are also present and the police conduct a "pat down" for weapons on the other men. Such a frisk should be based on reasonable suspicion, and clearly there was none as to the other men. But had the police recovered any weapons, a court might sustain the propriety of the pat downs, as necessary to insure the safety of the police officers present, since they were about to turn their attention to Sabo's arrest.

The most interesting search of the show is performed by on a man named Flacko. The police learn Sabo sold his gun to a Dominican guy who hangs out at a bodega on 171st Street. (In interviewing a witness with whom Sabo discussed the sale, the police erroneously obtain an identification by using an unduly suggestive single photograph rather than a photo array. As I've noted before, a single photo identification can be suppressed at trial). The police suspect Sabo sold the murder weapon to the Dominican. When they arrive at 171st Street, they see a Hispanic male on the street with a heavy bulge in his jacket. They don't have a description of the buyer beyond his ethnic background; and they don't know the buyer or anyone else has a gun on the street. In light of what the police don't know, the bulge alone is not enough to sustain a search of Flacko because the police do not have a reasonable suspicion or probable cause to believe he is armed. Therefore, the court later properly suppresses the gun found on Flacko and rules it cannot be used as evidence against him.

Finally, the police recover a pair of bloodstained shoes left by Sabo in the apartment of a friend with whom he stayed while on the run. DNA tests reveal the blood belongs to the victim. The seizure of the shoes is entirely proper because the apartment owner gave the police permission to take them. Further, Sabo has no expectation of privacy in the shoes because he abandoned them at the apartment. Once again, he has no standing to challenge the seizure of the shoes and they would be admissible in evidence against him.

After the court suppresses the gun found on Flacko, a confession Briscoe claims Sabo made as Briscoe arrested him on the basketball court becomes the focus of the episode. At a hearing to determine whether the confession is admissible, Briscoe testifies that he approached Sabo and said, "you little bastard, I'm arresting you for the murder of Eva Harrison." Briscoe testifies Sabo immediately replied, "I gave that white bitch what she deserved." There are no other witnesses to the confession. Green - who was nearby at the time ordering the frisking of bystanders -- didn't hear it. He implies to Briscoe that he doesn't believe Sabo would give it up so quickly. Green thinks Briscoe made up the confession to compensate for his recent shortcomings. Lieutenant Van Buren is equally suspicious. A judge rules the confession will not be admitted into evidence because of an evident animus Briscoe has toward Sabo, as evidenced by his dislike of him and the illegal search of Flacko, done in an attempt to nail Sabo.

While the judge's ruling is not baseless, McCoy's decision to try to get the confession into evidence is also sound. Sabo is evidently a man with a hot temper. It's entirely believable that he would quickly respond to Briscoe's remark with a cocky reply. Briscoe is later vindicated when Sabo admits to McCoy in an unrelated investigation that he had indeed confessed to Briscoe. When McCoy asks Sabo about the confession, he is doing more than gratifying his curiosity; he is rehabilitating Briscoe's damaged reputation in the eyes of his fellow law enforcement officers.

But McCoy does make a mistake worth discussing. After Flacko is arrested in possession of the murder weapon, an experienced Assistant District Attorney would have done three things immediately: He would have obtained his signed statement against Sabo; brought Flacko before the judge to plead to gun possession; and put Flacko before the grand jury to testify against Sabo. By not committing Flacko to more than a verbal deal to testify against Sabo, McCoy gives him the opportunity to obtain a court order suppressing the gun -- the only evidence he has against Flacko. Thus, McCoy loses any leverage he had to obtain Flacko's testimony against Sabo.

Fortunately, and despite the countless illegal searches and seizures and pat downs and errors, the bloodstained shoes and DNA evidence save the day. This time.

Past Reviews

Message Boards

Disclaimer