NARCOTICS Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Police Dog Searches of Your Body Now Require Probable Cause in New York (At Least in the Third Department)

August 13, 2025 | Peter Howard Tilem

New York’s Appellate Division sent a clear message in People v Butler (July 3, 2025): officers cannot press a drug-sniffing dog against your clothing or skin unless they already have probable cause. The justices threw out a heroin conviction because a trooper let a canine push its snout into the defendant’s waistband during a traffic stop. That intrusion, the court ruled, crossed the line from a minimal sniff to a search so personal that it triggered the highest constitutional protections. If you ever face a roadside dog search, this decision can shape your options, your motions, and your leverage at every stage of the case.

The Decision Raises the Bar for Personal Privacy

The court compared a quick sniff around a car’s exterior with a dog’s nose pressed into intimate areas of a human body and concluded the two encounters are worlds apart. A vehicle sniff affects property; a body sniff affects dignity, autonomy, and personal security. Because the intrusion targets the “most private sphere,” the judges placed it in the top tier of the People v De Bour framework, which requires probable cause rather than mere reasonable suspicion. From now on, officers must point to concrete, verifiable facts suggesting you actually possess contraband before directing a dog toward your person.

When Does a Witness Qualify as an Expert in New York Criminal Cases?

February 20, 2025 | Tilem & Associates

During litigation, it is common for one party to have an expert testify in support of their case. In criminal cases, the state will sometimes try to qualify an arresting police officer as an expert in a certain area, which can bolster the officer’s credibility before the court. What does it take to be qualified as an expert in New York criminal cases? And what does this mean for defendants fighting criminal charges?

New York Case Law

A New York case called People v. Cronin sets out the following standard for expert testimony:

New York Defendant Unsuccessfully Argues to Overturn Drug Convictions

December 12, 2024 | Peter Howard Tilem

Recently, a New York defendant in a drug case, appealed his convictions before the Appellate Division, Third Department. In his appeal, the defendant argued that his convictions were “against the weight of the evidence,” a very hard burden to meet given that the Court is obligated to give deference to the Jury’s evaluation of the credibility of the witnesses. Unfortunately, the appellate court disagreed with the defendant’s argument and affirmed the convictions and sentences imposed by the lower court.

Facts of the Case

According to the opinion, the state used two confidential informants to catch the defendant in the act of selling heroin. Prior to each controlled buy, the police searched the confidential informants in order to make sure they were not bringing drugs to their agreed-upon meetup with the defendant. After each controlled buy, the informants brought the heroin to the police officers that the defendant had sold them. Following the controlled buy operations, the police obtained a valid warrant and searched the defendant’s apartment. They found several incriminating items, including a scale, baggies and cutting materials, and glassine envelopes.

The defendant was charged with and later convicted of a) criminal sale of a controlled substances and b) criminally using drug paraphernalia. Following his convictions, he filed an appeal, arguing that his convictions were against the weight of the evidence.

New York Court Denies Defendant’s Request to Suppress Evidence of Drugs in Controlled Substance Case

October 15, 2024 | Peter Howard Tilem

In a recent drug case before the New York Appellate Division, Second Department, the defendant asked the court to reconsider the lower court’s denial of his motion to suppress the evidence that he was arrested in possession of. Originally, the defendant was convicted of criminal possession of marijuana and criminal possession of a controlled substance. When the defendant had initially asked the trial court to suppress evidence of drugs in his car that were recovered pursuant to a search warrant, the court had denied the motion without a hearing. Despite the defendant’s challenge of this decision, the higher court denied his appeal and affirmed his original convictions. The case serves as a reminder that, at times, officers have broad leeway to search private vehicles, which can lead to incriminating and frustrating results.

Facts of the Case

According to the opinion, officers searched the defendant’s car because the defendant’s brother pointed a firearm at several people after getting out of the car that the defendant was driving. Officers impounded the car, and they later obtained a warrant then searched the vehicle. At that point, the officers found ecstasy pills as well as marijuana inside the car. Facing criminal charges, the defendant filed a motion to suppress, and the court denied this motion without a hearing. The defendant’s case later went to trial, and a jury found him guilty as charged. The trial court then sentenced him to time in prison accordingly.

The Decision

On appeal, the defendant argued that the lower court should not have denied his motion. The higher court, however, disagreed. It was reasonable, said the court, for the officers to suspect that they might find evidence of criminal conduct in the vehicle. The vehicle was properly impounded as a result of the defendant’s brother’s pointing a gun at a group of people nearby. Continue reading

When Can a Police Officer Legally Frisk a Suspect in New York?

October 8, 2024 | Peter Howard Tilem

We have written extensively about the rights of citizens involved in street encounters with the police and the four tiers of intrusion based upon the level of suspicion that the police have. According to New York law, an officer may rightfully frisk a person when the officer has a “reasonable suspicion” that the person is armed and therefore that the officer is in danger. A recent drug case before a New York court put this law to the test, when a defendant appealed a lower court’s decision to deny his motion to suppress. The higher court, considering the defendant’s appeal, decided that the officer did not have grounds to suspect that the defendant was armed, siding with the defendant and reversing the lower court’s decision.

Basis for the Defendant’s Appeal

In New York, an officer with reasonable suspicion that a detainee is armed may, indeed, frisk the detainee. The officer must have knowledge of some circumstance that allows him to believe that his safety is threatened because the detainee is armed. These circumstances could include: the nature of the crime being investigated, the suspect’s behavior, and any bulges in the suspect’s clothing.

In the case on appeal, the defendant argued that when an officer stopped him for failing to use his turn signal, it was unreasonable for the officer to then pat him down several minutes into the traffic stop. During the frisk, the officer found PCP on the defendant’s person; the defendant was charged with (and later convicted of) criminal possession of a controlled substance.

Probable Cause in New York Drug Cases When an Officer Cannot Confidently Identify the Object “Changing Hands”

October 1, 2024 | Peter Howard Tilem

When a police officer suspects that he witnesses the exchange of drugs for sale, can he arrest a suspect even if he’s unable to confidently identify the object that changed hands? According to New York case law, the answer is yes. A recent case before the New York Appellate Division, First Department clarifies the analysis that answers this question, which in turn applies to suspects and defendants involved in cases revolving around the alleged sale of a controlled substance. The case marks an obstacle for defendants in these kinds of cases, but it is crucial for defendants to know where the law stands when involved in the alleged sale of a controlled substance.

Case Before the Appellate Division

According to the facts of the case, a police officer noticed a man standing outside of a hotel one evening, wandering around and “nervously looking around.” A few moments later, the officer saw the man start speaking with a woman that he knew had been arrested in the past for drug-related charges. At that point, he saw an object “change hands,” or go from one person to the other.

The officer arrested the defendant, and the defendant was charged and later convicted of criminal sale of a controlled substance in the third degree, as well as criminal possession of a controlled substance in the third degree. The defendant filed a motion to suppress, arguing the officer did not, in fact, have probable cause to arrest him in the first place. The trial court denied this motion, and the defendant appealed the trial court’s decision.

What Happens When a Judge Exerts Too Much Influence During Trial?

August 19, 2024 | Peter Howard Tilem

In criminal trials, juries must reach unanimous verdicts, which means all jurors must find a defendant guilty in order for the defendant to receive a guilty verdict. In a perfect world, jurors are able to deliberate and come to a verdict without the influence of the judge’s opinion regarding the case’s outcome. In a recent New York case, however, things took a turn when the higher court found that the trial court judge influenced jury members too heavily during their deliberations.

In the case before the Appellate Division, Second Department, the State charged the defendant with conspiracy and criminal possession of a controlled substance. The defendant pled not guilty, and his case went to trial. After both sides presented evidence, the jury went back to deliberate.

Jury Deliberations

After two days of deliberation, the jury submitted a note to the judge indicating that “after intense discussion,” they were unable to reach a unanimous decision. The judge advised the jury to try again, and after one more day, the jury again submitted a note that they were unable to reach a decision. Again, the judge advised the jury to keep trying. On the fourth day of deliberations, the jury again submitted a note indicating that the members were “hopelessly deadlocked.”

Using the Right Standard in New York Traffic Stop Cases

August 5, 2024 | Peter Howard Tilem

As we have written about extensively, New York recognizes 4 levels of police intrusions during street encounters. Under New York law, when a police officer conducts a traffic stop, the officer cannot unnecessarily prolong the stop. If an officer does keep the driver beyond a reasonable amount of time, he or she must have “reasonable suspicion” that criminal activity is afoot. Whether the officer had reasonable suspicion is a decision that a court must make, and if the court ultimately finds that the officer did not have reasonable suspicion, the Court can grant a defendant’s motion to suppress whatever incriminating evidence the officer ended up finding during the traffic stop.

In a recent case before a New York court, the defendant argued on appeal that the officer conducting his traffic stop unnecessarily prolonged the encounter between the two of them. During the encounter, the officer found significant amounts of heroin in the defendant’s car. Originally, when the case was before a New York trial court, the court determined that the traffic stop and resulting search of the vehicle were both justified. The court denied the defendant’s motion to suppress the incriminating evidence.

Reasonable Suspicion v. Founded Suspicion

When the case went up on appeal, however, the higher court noted that the trial court used the incorrect standard while evaluating the case. Instead of asking whether the officer had “reasonable suspicion” regarding possible criminal activity, the trial court asked whether the officer had “founded suspicion.” This “founded suspicion” standard, said the higher court, is a lesser standard than “reasonable suspicion.”

Searches and Seizures of Parolees in New York: What You Need to Know

July 5, 2024 | Peter Howard Tilem

What are the rights of a parolee when an officer wants to conduct an invasive search or seizure? In New York, recent case law explored this very question, looking at the circumstances under which a defendant can successfully challenge a search based on his constitutional right to privacy. According to the case, parolees do not, in fact, surrender their fundamental constitutional rights against unreasonable searches and seizures. The case is a win for individuals on parole in New York.

Facts of the Case

The defendant in this case challenged an officer’s search of his pockets. The defendant was on parole, which meant he could be subject to officers searching his home without warning. One day, officer came by his house while looking for a fugitive he suspected might be in the defendant’s home. The officer did not find the fugitive, but the officer did notice a bulge in the defendant’s pocket. The officer then searched the defendant’s person and found heroin in his headphone case. The defendant later faced charges of drug possession.

“Reasonable” Relationship

The court reviewing the facts of the case had to decide whether this search was reasonable. The court first noted that the standard for searches for parolees is different than for those not on parole. According to already-existent New York case law, an officer’s search of a parolee has to do with whether the officer’s conduct was “reasonably related” to that officer’s duty.

New York Police Officers’ “Community Caretaking” Role in Traffic Stops

June 17, 2024 | Peter Howard Tilem

We have previously written that police officers, in New York and elsewhere, have what is called a “community caretaking” duty. This means that officers are not only obligated to enforce the law, but they also must assist an individual when they notice that he or she needs help. Recently, a New York court had to decide how this community caretaking responsibility applies to traffic stops on the road.

In the case that led to the court’s decision, an officer was driving behind another vehicle when the officer noticed one of the passenger doors quickly open and close. The officer thought someone in the car might have needed help, and he therefore initiated a traffic stop. Upon approaching the driver, the officer smelled marijuana. He asked the driver about possible drug use, and the driver admitted to having used ecstasy.

Motion to Suppress

The defendant was arrested, and he quickly filed a motion to suppress. The question before the court, then, was this: was the officer’s stop warranted? At the suppression hearing, the prosecution argued that the stop was acceptable under the officer’s community caretaking duty. The officer genuinely thought someone in the car needed help, and therefore the subsequent actions were reasonable. The trial court agreed with the prosecution and denied the motion to suppress.

New York’s New Standard

The higher court disagreed, and it ended up establishing a two-part test to determine if an officer can legally pull over a car under this community caretaking role. First, the officer must point to specific and objective facts that would lead a reasonable officer to think that a vehicle passenger needs help. Second, the police action must be as unintrusive as possible. Therefore, once the police officer realizes that no assistance is needed, he cannot justify further action under his community caretaking responsibility.