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Articles Posted in GUN CRIMES

In a recent opinion from a New York court, a defendant’s motion to suppress was denied. The defendant was charged with criminal possession of a weapon after police arrived at his building to investigate a domestic disturbance. He argued on appeal that the officers who found the gun violated his privacy rights by entering into his private residential building. The court disagreed, denying his appeal and sustaining his verdict.

Facts of the Case

According to the opinion, police arrived at the defendant’s house after having received a call from the defendant’s father-in-law reporting that he was choking his wife. Officers arrived at the scene and, because they were unable to make contact with the defendant, positioned themselves outside of the apartment building in a nearby alley. Meanwhile, the defendant opened his second-floor window and threw a black backpack into the window of a neighboring building. He came out onto his porch to speak with the officers and stated several times that he had a gun.

Suddenly, the defendant raised what appeared to be a gray-colored object toward the officers, and officers shot him two times. While he was transported to the hospital, the officers searched inside the black backpack and recovered a rifle and ammunition.

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As New York’s premier Second Amendment Lawyers we are monitoring pending legislation to criminalize the


Click Here For A Critical Update on 80% Lowers in New York

possession and sale of 80% (Eighty Percent ) lowers in NY.  These unfinished frames have been a recent target of the anti gun crowd who often refer to these unfinished frames or receivers as “Ghost Guns.”  Currently there are no laws on the books in New York State that ban the sale or possession of 80% lowers however legislation is currently pending in Albany and a relatively recent and very ambiguous law was recently passed in New York City which makes in a crime to possess or sell an “unfinished frame or receiver.”

In many cases, such as gun cases or drug cases, law enforcement agencies rely on the public to report criminal or suspicious activity to the police or emergency phone line. Tips received by police from the public can help an officer form reasonable suspicion that someone has committed, is committing, or is about to commit a crime. With reasonable suspicion, police officers may be able to stop, detain, question, and search a suspect without a warrant. Because of this, tips from the public are often used by police officers to justify warrantless searches.

Although a phone-in tip can help an officer have a valid reasonable suspicion that criminal activity is afoot, the existence of a tip, particularly an anonymous tip,  is not in itself sufficient to justify performing a search without a warrant. The New York Court of Appeals, New York’s highest court,  recently reversed a trial court ruling that permitted an officer to search a car without a warrant based on a phoned-in tip.

The defendant from the recently decided appeal was riding in a friend’s vehicle when they were stopped by police. According to the facts discussed in the appellate opinion, the arresting officer had received a radio call from dispatch that someone in a vehicle matching the description of the van the suspect was riding was reported to be visibly brandishing a firearm. Based on the tip and the vehicle description, the police stopped the vehicle and performed a search for weapons, without consent or a warrant. After a firearm was found in the defendant’s possession, he was arrested and charged with a gun offense.

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.


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.

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