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Articles Posted in GUN CRIMES

In a recent opinion from a New York court involving a New York gun case, the defendant’s motion to suppress was denied. The defendant was convicted of gun possession in the third degree and filed a motion to suppress the gun found in his coat pocket during the initial 40 seconds of a traffic stop. The state appellate court denied the motion because they found that the search was not a “level three” detention and that there was reasonable suspicion of criminality.

The Facts of the Case

According to the opinion, a parole officer tipped the police officers of the defendant possibly owning a gun. Police officers conducted a traffic stop, stopping the defendant due to the defendant violating traffic laws and having a suspended license. The officers directed the defendant to exit the vehicle and an officer grabbed the defendant’s arm as he exited the vehicle.

A very close friend of mine who is a retired police officer wrote me a very interesting response to our last blog about whether it is lawful to handcuff a licensed gun owner while an officer verifies the validity and authenticity of a gun license.  I know this retired officer to be extremely pro Second Amendment and so it was so interesting to hear from an actual police officer who has had to deal with these issues.    The two main take-aways are, in my opinion, that there is a complete lack of training (or at least there was back then) on Second Amendment issues and so much of what happens on the street could be remedied if people (including officers) just act nicely and use their words.  I know this particular officer and I know that he is not a bully and rather is very good at obtaining compliance with his words.  As he points out, if he was a jack a$$, he probably would me in the law books also.  I have reprinted his comments below, verbatim except to remove identifying information.

I just read your post about the Connecticut incident. In my rookie year, I was sent to a house on a report of the homeowner mowing his grass while possessing a firearm in an open carry manner. The complaint was the next-door neighbor who had multiple disputes with the subject over the complainant’s dog.

One month prior, the dog got out and almost bit the man who was mowing the grass while he was unloading groceries from his car.

As the providers of the only pre-paid legal service for gun owners in New York, NY TAC DEFENSE, we are constantly monitoring the law as it pertains to gun ownership in New York.  A recent Connecticut case, decided earlier in the week, is worthy of reporting since Connecticut is in the Second Circuit with New York and this case will probably be reviewed by the Court of Appeals in the Second Circuit and any decision will likely become binding law in New York. In the case of Soukaneh v. Andrzejewski, Basel Soukaneh, sued a Waterbury Police Officer who stopped his vehicle one night.  The law suit was filed in the Federal district Court for the District of Connecticut.  Soukaneh alleged that when he was stopped he handed the police officer his driver’s license and gun license and indicated that he was armed.  The Police Officer reacted by handcuffing Mr. Soukaneh while he verified the authenticity of the gun license and while the officer searched the passenger compartment and trunk of the vehicle.

The police officer filed a motion for summary judgment seeking to have the lawsuit dismissed.  Among his arguments were that he had probable cause to believe that Basel Soukaneh was in possession of a firearm without a permit until he was able to verify the validity of the permit.  Therefore, Police Officer Andzejewski thought he was justified in handcuffing and detaining Mr. Soukaneh.  The Court found this conduct to constitute a de facto arrest.  The Court strongly disagreed finding that since it was undisputed that the police officer found out that there was a gun in the car either at the same time or after the officer was given the license, that “no reasonable officer” could conclude that they possessed probable cause that Mr. Soukaneh was violating Connecticut law.

The Court likened the firearms license to a driver’s license and concluded that the same way it would be unconstitutional to presume that a driver’s license was invalid and to detain the driver until its validity was verified, it must be unconstitutional to presume that a firearms license was invalid and detain the gun owner until it was verified.  The Court found that a contrary finding would “eviscerate Fourth Amendment protections for lawfully armed individuals.”

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine whether it was legal for officers to obtain the defendant’s gun, ammunition, and DNA evidence after a police pursuit. Ultimately, the court determined that the officers gave contradicting testimony about the incident and ordered the suppression of evidence, the firearm, obtained from the police pursuit. The case illustrates the strict procedures that law enforcement must follow when investigating a crime or arresting an individual.

The Facts of the Case

According to the court’s opinion, police officers observed an object bulging out of the defendant’s right waistband. One officer stepped out of the vehicle, causing the defendant to flee. Both officers testified with different versions of events. The first officer stated that she began running after the defendant and attempted to grab him, which led to the defendant dropping a gun. The second officer testified that the first officer attempted to grab the defendant before he began running, causing the defendant to drop the gun before the officer chased him.

The defendant was arrested, and a gun, ammunition, and the defendant’s DNA profile was recovered from the scene. Despite the different testimonies by the officers, the court denied the defendant’s motion to suppress the evidence.

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As we wrote in our blog on March 12, 2021 Jerry from Jerry’s Firearms in Suffolk County was arrested.  At that time there was speculation about the charges and whether Jerry was arrested for selling “other” weapons that the Suffolk County Police decided violated New York’s Safe Act or whether Jerry was arrested for record keeping violations.  It now appears that the answer is both.

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Franklin Armory Other

In late May 2021 the Suffolk County Police began sending unsigned letters to purchasers who bought the Delta Level Defense CT4-2A, other firearm that demanded that the purchaser call the Suffolk County police to schedule an “inspection” of the gun.  Since May, at least one other round of letters has gone out.  The letter indicates that those who comply will not be arrested and rumors have been circulating that the Suffolk county Police have threatened those who took the guns out of state or modified them with arrest for tampering with evidence.  It has become clear that the Suffolk County police consider these firearms illegal and Jerry has been charged with a class “B” violent felony for selling 10 or more of these firearms.  He faces up to 25 years in prison.

An individual charged and convicted upon a guilty plea of a New York weapons offense recently appealed his conviction based on a constitutional violation of his rights. The accused argues that the trial court erred in failing to suppress evidence that his parole officer recovered during searching the man’s home. He argued that the search was precipitated on an uncorroborated anonymous tip. Moreover, he contended that the officers did not establish the tip’s source of knowledge or reliability.

According to the record, the appellant’s parole officer explained that he received a call through the Department of Probation that the appellant may have a firearm. The parole officer then searched the appellant’s residence and discovered a firearm wrapped in plastic underneath clothes in a closet. The court refused to review the appellant’s contention on appeal, reasoning that the accused did not raise it before the court. However, a dissenting judge explained that, in his view, the warrantless search was unlawful because it rested solely on an anonymous tip from an unidentified person.

New York is one of the few states that retain the Aguilar-Spinelli test to determine the validity of a warrantless arrest stemming from an anonymous tip or confidential informant. Under this test, law enforcement must provide the magistrate signing the warrant with reasons to support the finding that the informant is reliable and of some of the circumstances that the informant relied upon. Further, after arraignment, law enforcement must establish facts that show the anonymous tipster is reliable and credible and establish the circumstances relied upon by the tipster. Despite this test, there is limited guidance on when a confidential informant or anonymous tipster should be deemed “reliable.” Lower courts rarely find anonymous tipsters reliable in the absence of predictive information.

As we reported in our blog on March 31, 2021, we won a five year battle to get a New York gun charge dismissed based upon an illegal search.  State and federal law as well as the US Constitution provide that all citizens enjoy the right to be free from unreasonable searches and seizures. Historically, this meant that police officers needed to obtain a warrant before they conducted any type of search. However, the practicalities of life in the 20th century required the court to create specific exceptions to the warrant requirement. One of the most important exceptions to the general rule requiring a warrant pertains to New York traffic stops.

Over the years, courts have held that automobile stops present certain facts that make it impractical for law enforcement to obtain a warrant. For example, vehicles are mobile, may contain dangerous weapons, and occupants are obscured from police view. Thus, police officers do not need to get a warrant before searching a car in many cases. However, just because they don’t need a warrant doesn’t mean they can search a car for any reason.

Generally, police need to provide justification for any warrantless search. In the case of traffic stops, this requires the officer have probable cause to suspect that the driver or one of the vehicle’s occupants is involved in criminal conduct. Courts rely on several factors when assessing whether an officer had probable cause to search a car including, the occupants’ behavior, any immediately visible evidence of wrongdoing, and whether the traffic stop occurred in a “high crime” area.

Earlier this year, a state appellate court issued an opinion in a New York gun case involving what the prosecution called a valid inventory search. However, the court rejected the prosecution’s characterization of the police officers’ search of the defendant’s vehicle as an inventory search, suppressing the evidence found in the defendant’s car.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by police for an unrelated violation. As the defendant pulled over, he parked his car on the corner. There was no indication that he illegally parked his car or that there was a limit on how long the defendant’s car was allowed to remain parked at the location.

However, the arresting officers decided to transport the defendant’s vehicle to the police station because they believed it was used in the commission of a crime. When the vehicle arrived at the police station, officers searched the car, finding a gun. The defendant was charged with criminal possession of a weapon in the second degree.

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Recently, the United States Supreme Court heard oral argument in a case, important to New York Criminal defense lawyers, requiring the court to determine if the “community caretaking” function of police officers allows them to enter a private resident’s home. While the Court has not yet issued an opinion in the case, one is expected by the middle of the year. When the Court ultimately decides the case, it could significantly impact New York search and seizure laws.

What Is the Community Caretaking Function?

Under the state and federal constitutions, police officers are generally required to obtain a warrant before searching a person or their belongings, including their cars and homes. However, there are exceptions to the warrant requirement. Most notably, police officers can conduct limited searches after making a lawful arrest.

However, there are also other exceptions. For example, say a police officer sees someone pulled off the side of the road in their car. As the officer drives by, the person is slumped over the wheel. Fearing that the person may have suffered some kind of medical event, the officer stops and knocks on their window. As it turns out, the driver was intoxicated. In this case, although the officer may not have had probable cause to stop the driver, courts would likely consider the traffic stop and subsequent arrest of the defendant lawful because the officer was not investigating a potential crime.

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As New York’s Premier Second Amendment lawyers we eagerly awaited President Joe Biden’s Executive Orders today so we can analyze its effect on our clients.  In reality, today’s announcement had no effect on our clients and really had no effect on any gun owners.  The only people affected seem to be the people who write regulations for the ATF.

To be sure, there were no surprises in the announcement today except the for lack of details after over 2 months in office.  For example, one of the centerpieces of today’s announcement was that the ATF will have 60 days to propose a rule about pistol braces and when such devices will turn a pistol into a short barreled rifle that would be regulated under the National Firearms Act.  However, as we wrote in our December blog, such a rule was already proposed as recently as December, less than 4 months ago and quickly withdrawn under pressure from Congress.  Surely, the ATF could have had something written by now having already written a regulation on the same topic just three and a half months ago.

The other centerpiece of today’s announcement was a direction that the ATF propose rules regarding “ghost guns” within 30 days.  The announcement cites, without any evidence, the proliferation of “ghost guns” that are supposedly being completed by criminals to use in crimes.  It is hard to imagine what such a regulation would look like or how the ATF would regulate an unfinished block of aluminum or polymer.  Will a block of aluminum be considered a firearm if it is 70% complete, 60% complete or 40%?  It is also hard to imagine why after more than 2 months in office no details about any regulation were given or why it would take 30 more days to write such a proposed regulation.

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