SEARCH ILLEGAL IN GUN, DRUG ARREST

Judge tosses indictment of city man, saying cop didn't have just cause

ALBANY -- Albany County Judge Thomas A. Breslin dismissed a gun and
drug possession case on Wednesday, ruling that a city police officer
stopped and searched a man in February without just cause.

Rayquinshawn Harrison allegedly had a loaded 9 mm semiautomatic
handgun and 38 packets of marijuana in his overcoat.

"It wasn't even a close call," said his attorney, Cheryl F. Coleman.
"I know police think they have to hold the line ... but if this
search had been upheld, it would have been open season on anybody
walking the streets of Arbor Hill."

Officer Laurence Heid and a state trooper were patrolling the
neighborhood on Feb. 28 when they stopped Harrison on Livingston
Avenue because he was acting suspiciously, swinging one arm while
protecting something in his pocket with the other arm, according to
Assistant District Attorney Francisco Calderon. He said when Heid
told Harrison he wanted to search him and reached out a hand,
Harrison blocked the police officer with his own hand.

"I stand by the officer," Calderon said. "He sees a guy reaching into
his pocket, the biggest concern is his safety."

Heid had reasons to stop and search Harrison, who is well-known to
police, Calderon said. And it was only after he discovered the pot in
Harrison's outer coat pocket, and had handcuffed him, that Heid found
the gun loaded with five rounds in an inside coat pocket, prosecutors said.

Coleman said Heid testified under oath that he'd made up his mind to
search the man before even leaving his cruiser. "He said to the
trooper, 'I bet that guy has a gun,' " she said. "Case law is clear
that a stop-and-frisk is only justified by 'specific and articulable
inferences.' "

"His nervousness and stiff arm do not even come close," she added.

Sanctioning a search based on those facts would open the door to
"hunch frisks," Coleman said.

Dismissal of the case comes as District Attorney David Soares' office
has stepped up its prosecutions under Operation Speeding Bullet to
get guns off the street.

"We felt we had a good case, and based on our review of it, we
thought the officer acted appropriately," Soares said. "The judge
made a decision we have to respect, but that will not deter us from
doing our jobs."

"I view this as a minor setback," he said.

Police Chief James Tuffey said the case will be reviewed internally
today. "We'll talk to the officer and find out what happened," Tuffey said.

Following a hearing in April, Breslin ruled that a jury couldn't see
or hear the evidence against Harrison because of the manner in which
it was obtained. On Wednesday, the judge dismissed the indictment
completely at Coleman's request.

Calderon said he didn't object to the dismissal because without the
evidence there was no case.