GUN CRIMES Category Archives — Page 9 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Finds Inexperienced Officer Lacked a “Founded Suspicion” to Stop, Question, and Search Defendant

May 19, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun possession case discussing whether the arresting officer had a “founded suspicion” that there was criminal activity afoot. Ultimately, the court held that the defendant’s motion to suppress the firearm that was found on him should have been granted, because the arresting officer approached, stopped, questioned and subsequently searched the defendant without sufficient reason.

The Facts of the Case

According to the court’s opinion, the defendant was out walking his dog in an area known to be an “open air drug market” when he was approached by a police officer. That night, the temperature was about 40 degrees, and the defendant was wearing a mask that covered part of his face. The officer, who had only been on the force a few months and was working underneath a more experienced officer, pulled his vehicle in front of the defendant’s line of travel, got out of the car, and approached the defendant to ask him why he was wearing a mask. The defendant responded that he was walking his dog.

At this time, the more experienced training officer asked the defendant what was in a bag that he was carrying. The defendant responded that it was “weed.” The arresting officer then frisked the defendant and found a gun. The defendant filed a motion to suppress the gun, arguing that the arresting officer lacked reason to stop and question him, as well as to conduct the pat-frisk that led to the discovery of the gun.

Supreme Court Issues Opinion Impacting New York Defendants with Prior Drug Convictions

May 13, 2020 | Peter Howard Tilem

As we reported in February, the Supreme Court heard argument on a drug case that will likely have significant consequences for many facing New York gun charges. Now, the United States Supreme Court issued a written opinion in the case. Specifically, the case required the Court to interpret the provision of the Armed Career Criminals Act (ACCA) imposing mandatory sentences for those who are convicted of a gun offense after having previously been convicted of at least three drug offenses.

The ACCA seeks to impose escalating punishments for the possession of a firearm, based on a defendant’s prior record. For example, if a defendant is convicted of a gun offense, and has three prior “serious drug offenses,” the defendant is subject to a mandatory minimum sentence of at least 15 years. Of course, not every state’s laws are written the same way, and this requires federal courts to determine whether a drug conviction should be considered a “serious drug offense” under the ACCA.

The Facts of the Case

According to the Court’s opinion, the defendant pleaded guilty to a firearm offense and, based on the defendant’s six prior cocaine-related convictions, he received a sentence of 15 years’ incarceration. On appeal, the defendant challenged the lower court’s finding that the six offenses qualified as “serious drug offenses” under the ACCA.

Court Discusses New York Automobile Exception to the Search Warrant Requirement

May 7, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the automobile exception to the search warrant requirement. Generally, law enforcement must obtain a search warrant that is supported by probable cause before they can conduct a search. However, over the years, courts have crafted a variety of exceptions to the warrant requirement. One of the most often cited exceptions is the automobile exception.

The automobile exception came about based on the understanding that vehicles are mobile. Thus, if police officers were required to obtain a warrant to search a car, there would be a risk that the officers would not be able to locate the car again, or that any evidence inside the car could be hidden or destroyed. Thus, if an officer has probable cause to believe that there may be evidence or contraband inside a vehicle, the officer can search the vehicle without a warrant.

According to the court’s opinion, police officers witnessed the defendant give a carton of cigarettes to another man in exchange for money. The officers approached the defendant, who was standing near the open door of a van. As the officers got closer to the van, they could see that it was full of duffle bags and that one of the bags contained additional cartons of cigarettes. One of the officers then opened one of the packs in the carton that the defendant had just exchanged, noticing that there was no New York tax stamp. Officers arrested the defendant. Before driving the defendant’s car back to the station, one of the officers conducted a “quick check” of the vehicle, finding a firearm under the passenger seat.

The 12 Most Ridiculous Gun Laws

April 7, 2020 | Peter Howard Tilem

As Second Amendment lawyers in New York you would imagine that we are familiar with idiotic “gun control” laws. Which is why an article in this month’s Ballistic Magazine about the twelve most idiotic gun laws caught my eye. To be sure New York, along with neighboring New Jersey are well represented on this list. So lets go through them

New Jersey’s ban on hollow points. Yes, believe it or not New Jersey wants everyone running around with full metal jackets. Hollow points are illegal every place except at the place of purchase, your home, the range or hunting. Although the law is so poorly written that expanding bullets like Federal Guard Dog and bullets with the tip filled with polymer like Critical Defense/Duty are legal.
Back to New Jersey, New Jersey also treats BB guns and Antique Black Powder weapons as modern firearms. You need the New Jersey State Firearms ID Card just to buy them.

New York Court Affirms Denial of Motion to Suppress, Finding the Defendant Consented to the Search

March 7, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York gun possession case involving the denial of the defendant’s pre-trial motion to suppress. Motions to suppress are often the most critical stage of a trial in cases involving guns or drugs, especially where the contraband item is found on the defendant. In this case, the court ultimately upheld the denial of the defendant’s motion to suppress, finding that the defendant gave the officers consent to search his car.

Consent is one of the few major exceptions to the warrant requirement. Generally, law enforcement needs a warrant to conduct a search of a person or their belongings. To obtain a warrant, an officer must establish that there is probable cause to believe that a crime was committed, and the search would turn up evidence of that crime. However, if a suspect consents to a search, that eliminates the need for an officer to obtain a warrant. To be valid, consent must be voluntary, and cannot be forced or coerced. Courts look to the surrounding circumstances to determine the validity of a suspect’s consent.

According to the court’s opinion, police received a 911 call stating that a man was banging on a hotel door with a gun. Police arrived and began to speak with the defendant outside the hotel room. He was not handcuffed at the time.

Can You Bring Your Lawfully Possessed Pistol on Vacation to Puerto Rico – Apparently Not Yet But Hopefully Soon

January 9, 2020 | Peter Howard Tilem

As a New York Second Amendment lawyer I get asked all kinds of questions everyday about where and when people

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Click the image to follow a Reddit thread which may have periodic updates

may carry their lawfully possessed firearm. Most of these questions pertain to New York and Federal Law. However, this week I was contacted with an interesting question. Can a New Yorker who has a license to possess a firearm take his lawfully owned handgun on vacation with him in Puerto Rico. After doing the research I learned that surprisingly, the answer was, hopefully, yes, soon.

New York Court Approves of Police Officers Inventory Search

December 24, 2019 | Peter Howard Tilem

In October 2019 we published an article about inventory searches and how the Court are reviewing such searches more carefully. However, earlier this month, a state appellate court issued a written opinion in a New York credit card fraud case involving a search of the defendant’s belongings that occurred after he was arrested for an unrelated crime. The case is useful in that it illustrates the concept of an inventory search, which frequently is cited as a valid basis for searches that may otherwise be unsupported by probable cause.

The U.S. and New York constitutions provide citizens with certain rights. Among those rights are those contained in the Fourth Amendment, which states that citizens are to be free from unreasonable searches and seizures. Over time, courts have fleshed out the protections of the Fourth Amendment to mean that a police officer cannot conduct a search without a warrant.

Of course, over the years, courts have allowed several exceptions to the warrant requirement. Depending on the situation, there may be a lower burden that police officers must meet or, in some cases, police officers may not need any additional facts to support a search. For example, police do not need a warrant (or even probable cause) to seize an item that is in plain view. The concept behind the plain-view doctrine is that an officer is not conducting a “search” under the terms of the Fourth Amendment if he recovers something that readily observable and in plain view. Another example is the warrant exception involving vehicles. Courts have held that vehicles pose a unique concern for officers in that they are mobile, limiting officers’ ability to go retrieve a warrant. Thus, there is a relaxed standard for searching an automobile.

Critical Update on Non-NFA Other Firearms Such As The Shockwave and Franklin Armory Reformation

December 19, 2019 | Peter Howard Tilem

In October 2019 we published a Blog which posed the question, “Is the NFA dead? In the article we discussed several types of short barreled weapons which had been reviewed by the ATF and other law enforcement agencies and had been found to not be covered by the National Firearms Act. In September 2017 we reported in an article about the Mossberg Shockwave and related firearms that such weapons were legal to purchase and own in New York despite the fourteen inch barrel. However, in our article in October 2019, we discussed the Franklin Armory Reformation line of firearms which at that time were considered to be legal to own and purchase based upon an ATF determination that the firearms were not considered short barreled rifles or shotguns under the National Firearms Act. However, today, the ATF issued new guidance.

In an “Open Letter” dated December 19, 2019, the Acting Assistant Director of the BATFE for Enforcement, Programs and Services, the ATF determined that Reformation firearms with barrels less than 18 inches are “Short-Barreled Shotguns” under the Gun Control Act, not the National Firearms Act. It therefore appears that it is difficult to transport or transfer any Reformation firearm with a barrel length less than 18 inches. According to the BATFE letter, this is the first firearm ever produced that the BATFE has classified as a Gun Control Act Short Barreled Shotgun. This is notwithstanding the fact that the Reformation does not accept or shoot shotgun shells.

To refresh everyone’s recollection, the Franklin Armory Reformation line includes firearms with a full stock and short barrels but unlike traditional rifles have the lands and grooves cut straight, front to back. A traditional rifle has the lands and grooves cut in a twisted pattern to impart a spin on the bullet as it travels through and leaves the barrel. Since the Reformation does not have “rifling” it could not be considered a rifle and therefore was not subject to the provisions of the NFA that pertain to rifles. In addition, because the barrel of the Reformation is not smooth and since it does not accept shotgun shells, it similarly cannot be considered a shotgun and therefore the provisions of the NFA pertaining to short-barreled shotguns also do not apply.

U.S. Supreme Court Hears Case Involving Constitutionality of New York Gun Permit Laws

December 3, 2019 | Tilem & Associates

In what is likely to be a blockbuster case the U.S. Supreme Court recently, heard arguments in a case involving New York gun laws. While the parties in this case were not criminally charged for possession of a gun, they prospectively challenged the New York City law banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. The case is important to New York gun crime law because the U.S. Supreme Court may determine that this specific gun law is unconstitutional. The case may also define the extent of the rights guaranteed under the Second Amendment and the Firearms Owners Protection Act nationwide.

New York City has two types of gun licenses. The first is known as a concealed carry permit, which allows a permit holder to carry a concealed firearm on their person. The second type of license is an “on-premises” license, which allows a permit holder to “have and possess in his dwelling” a pistol or revolver. An on-premises license is specific to a particular residence, and permit holders cannot freely transport a gun. Instead, a limited number of situations are allowed by statute.

One exception allows the permit holder to transport a handgun directly to and from an authorized range or shooting club if it is unloaded and in a locked container. The ammunition must be carried separately. All approved ranges and shooting clubs are located in New York City. Thus, a permit holder cannot transport a gun to a range outside New York City.

New York Court Grants Motion to Suppress after Determining Police Lacked Probable Cause to Search Defendant’s Car

November 27, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York firearms case discussing whether the police officer’s search of the defendant’s car was constitutionally sound. Ultimately, the court concluded that because the officers lacked probable cause to search the vehicle, anything they recovered as a result of the impermissible search must be suppressed.

According to the court’s written opinion, police responded to a call from the complaining witness that the defendant was threatening him. When police arrived, the defendant was in his parked car, which was out in front of the complaining witness’s home. The complaining witness told police that the defendant had threatened to kill him, and that he believed the threat was a real one because he’d seen the defendant with a gun on a previous occasion. The defendant admitted to the police that he told the complaining witness he would kill him if he came onto his property. The defendant also admitted to having a rifle back at home and being licensed to carry a firearm in Virginia, but not New York.

The officers searched the defendant, finding nothing. The officers then searched the defendant’s car and found a gun near the driver’s seat. The defendant argued that the weapon must be suppressed because the police lacked justification for the search of his truck. The trial court agreed, and the prosecution appealed.