COPS GAG ON SEARCH RULING

Judge Says Suspect Wrongly Forced To Spit Out Bags Of Pot

You have the right to remain silent - even with a mouth full of marijuana,
a city judge claims in a landmark ruling that has outraged police.

Manhattan Criminal Court Judge Gerald Harris said a cop went too far when
he pinched the cheeks of a drug suspect and four bags of pot fell out.

The search was conducted in March on W. 172nd St. by Officer Kevin Paynter
after suspect Vincent Cooper mumbled unintelligibly during questioning.

Paynter had already spotted Cooper, 31, of the Bronx, tossing a bag of
marijuana on the floor of his car, which was illegally parked next to a
fire hydrant in what the NYPD considered a "drug-prone" location,
authorities said.

But those factors didn't sway Harris, who declared the pot tainted evidence
and granted a defense motion to throw it out.

"The defendant's failure to respond to the officer's questions, and the
fact that he mumbled, did not warrant the intrusive action taken by the
officer to force open his mouth," the judge said.

The judge's ruling, published yesterday in the New York Law Journal, was
immediately blasted by police groups.

"I'm flabbergasted," said John Flynn, Manhattan trustee for the Patrolmen's
Benevolent Association. "These kinds of decisions continue to handcuff
police, and if this keeps up, no one will be safe, except for drug dealers."

Flynn urged Manhattan District Attorney Robert Morgenthau to appeal.

Mike Palladino, Detectives Endowment Association vice president, was also
outraged.

"It was reasonable to think that this defendant was hiding evidence,"
Palladino said. "His cheeks were bulging with four bags of marijuana, and
obviously he could not answer. That was a bad decision by the judge, and
unfortunately, bad decisions make for bad law."

But John Wesley Hall Jr., a criminal defense lawyer and author of the book
"Search and Seizure," sided with the judge.

Hall said the cop should have looked for other ways to find the drugs if he
suspected the man had some on him.

"Just because he suspects something is in there doesn't give him probable
cause to choke it out of the suspect," said Hall, a board member of the
National Association of Criminal Defense Lawyers. "Down in Texas, it could
have been a chaw of tobacco or something."

Cooper's Legal Aid Society lawyer, Tara Collins, said her client was happy
with the ruling.

But the judge also ruled Cooper can be prosecuted for the pot bags on the
car floor.

A spokeswoman for Morgenthau's office said it hadn't been decided whether
to proceed to trial on Oct. 31 or appeal the ruling.

With Jose Martinez