Judicial Reports, published by the Institute for Judicial Studies, issues the Reversal Report , one of the most fascinating and useful reads for New York lawyers.  In this weeks Reversal Report, the Appellate Division, First Department reversed Bronx Judge Richard Lee Price for suppressing evidence seized from a fellow who was coming into a “Safe Halls” building, where he kept his marijauna grow house.  The facts are available from the judicial reports link.

The aspect of this appeal that fascinates me is the “Safe Halls” building, or what is more commonly called an “Afffidavit” building.  In the Bronx, landlords give the police an affidavit authorizing them to stop and question anyone entering the building to determine if they have a reason for being there.  So a person goes into an apartment building in the Bronx to see his friend, and by virtue of the landlord having given the police permission to stop anyone entering the building, the individual is now subject to a stop, which is a seizure in constitutional language, and required to explain to the satisfaction of a police officer why he is entering the building.  Welcome to the Bronx!

Since when can one person, the landlord, give away your constitutional right to be free from governmental intrusion?  Since when do you have to explain your purpose to the satisfaction of the police?  One might argue that the landlord, as the owner of the property, has the right to control who enters his premises.  Not exactly, since the landlord has already given away that right to those nice folks who pay him monthly and are allowed to bring in anyone they want without fear that they be subject to the third degree.  If I’m going to visit my mother in the Bronx, and she pays the landlord faithfully for the right to occupy and enjoy her luxurious 9 bedroom duplex (okay, none of this is factually accurate, but it makes the point), then she has the right to have me come to see her every Sunday night for gefilte fish and broost without the landlord giving me a hassle.

And what do the police have to do with this?  These affidavit buildings give the police an unfettered excuse to harrass, annoy and play with people whenever they have a hunch that they can get a good bust out of it.  How often do they get a good bust?  No one knows, because they may stop a hundred people to get one perp.  So 99 people get hassled for no reason while only 1 perp is put under arrest.  Lousy constitutional odds.

I’ve come up against these affidavit buildings many, many times, and I’ve had great success in winning suppression based upon the unconstitutional stop.  So why did Justice Price get reversed?  Can’t say for sure.  Some would argue that it’s the new make-up of the First Department, though I got a reversal out of them recently in People v. Huertas , I’d be hard-pressed to argue that the court is so antagonistic toward defendants that they can’t bear to let one win once in a while.  What I would really like to see is the quality of the brief filed by the lawyer for the appellant.  My bet is that another bad decision came not from the prosecution, but from the defense.