Search and Seizure Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Court Addresses Defendant’s Waiver of His Right to Appeal in New York Drug and Gun Possession Case

January 7, 2021 | Tilem & Associates

New York drug and gun offenses and convictions can have long-term repercussions, including lengthy prison sentences. Defendants must understand their rights after being arrested, charged, or convicted of a criminal offense. Additionally, it is vital that defendants understand the typical steps of a New York criminal case. Including, arraignment, pre-trial discovery and pre-trial motions, trial, and sentencing. An attorney is a critical resource during this complex process because decisions made during these steps may drastically change the outcome of a criminal case.

An appellate court recently issued a decision in the defendant’s appeal of his criminal conviction of possession of a weapon in the third degree. The case addressed several issues, including the validity of a court’s denial of the defendant’s motion to controvert a search warrant and suppress evidence. In this case, police officers pulled the defendant over for a defective headlight. The officer asked the defendant for his license and registration, and when the defendant rolled down his window, the officer detected the smell of marijuana. The defendant explained that he smoked marijuana earlier in the day. The officer shined his flashlight and noticed an expandable baton. The officer’s computer search revealed that the defendant had an arrest warrant; thus, the officer placed the defendant under arrest.

At the precinct, the officer told the defendant that a K-9 unit was searching the vehicle, at which point the defendant responded that “you can do that all you want, whatever’s in the car, the cars not registered to me, my prints aren’t on it.” The police then obtained and executed a search warrant on the car, where they discovered drugs and a weapon. At a suppression hearing, the court denied the defendant’s motion to suppress evidence and statements to the officers. The defendant then challenged the search warrant; however, the court denied the defendant’s motion. The defendant pleaded guilty; however, on appeal, the defendant challenged his appeal waiver’s validity.

Court Rules in Favor of Defendant in New York Gun Case Based on Illegal Police Stop

January 1, 2021 | Peter Howard Tilem

A state appellate court recently issued a decision in a New York gun case, involving a defendant’s appeal of a jury verdict, finding him guilty of criminal possession of a weapon. The defendant appealed the jury verdict arguing that the New York Supreme Court erred in refusing to suppress evidence of a gun that the police seized during the stop. The defendant argued that the court should have suppressed the evidence because the police did not have reasonable suspicion to stop the car in which the defendant was a passenger.

According to testimony from the suppression hearing, an officer aiding another officer with a traffic stop heard several gunshots coming from north or northeast of the stop. The officer proceeded north, passing two intersections, but did not see any vehicles or pedestrians. When he passed through another intersection, he saw a vehicle with taillights moving slowly. The officer followed and stopped the car, stating that he was stopping the car to investigate whether anyone in the car committed a crime. The officer testified that there was less than a minute from when he heard the gunshot to when he saw the vehicle and less than two minutes from the gunshots to the stop.

Under the law, stops qualify as “seizures implicating the constitution” and require that the police officer has “reasonable suspicion” that the driver or any occupants in the vehicle committed a crime, are in the process of committing a crime, or about to commit a crime. Case law holds that vehicle stops are level three intrusions, which are forcible seizures. Level two intrusions are those that only require a “founded suspicion that criminal activity is afoot.” Courts must consider the “totality of the circumstances” to determine whether police conduct was illegal.

Court Finds in Favor of New York Defendant and Reverses Gun Conviction After Suppression Hearing

December 12, 2020 | Tilem & Associates

Recently, the New York Court of Appeals, New York State’s highest Court, issued an opinion, in a New York gun case, which reversed a lower court’s denial of a defendant’s motion to suppress evidence a gun. The case arose after a police officer stopped the vehicle the defendant was traveling in after his patrol car’s mobile data terminal (MDT) notified him of a “similarity hit.” In response to the similarity hit, the police officer stopped the vehicle and noticed a handgun on the floor in front of the seat the defendant was occupying. The police officer arrested the defendant, even though the car was not registered to him, and he did not have a warrant. At trial, the defendant moved to suppress the evidence that the police officer obtained from the stop.

The police officer testified that it was part of his “routine” conduct to enter license plates into his car’s MDT. In some cases, such as the one at hand, a similarity hit will occur, which notifies an officer that there is a similarity between a person with a warrant and a vehicle’s registered owner. The officer explained that the MDT generates these similarity hits based on the registered owner’s name, date of birth, and aliases. He further testified that he believes that the MDT generates hits based on parameters he was unaware of. In this case, the officer received a similarity hit, and without any other information, he pulled the car over. The officer admitted that after pulling the car over, he did not believe the driver was the subject of the warrant because the driver was female and the subject of the similarity hit, the registered owner, was a male. After discovering the gun and arresting the defendant, he realized that the individual with the warrant did not match anyone in the vehicle, or the car’s registered owner. The defendant’s motion to suppress the evidence obtained from the stop was based on the factual sufficiency of the basis of the stop.

Under New York law, if the state faces a sufficiency challenge, they must present evidence to establish that the stop was lawful. Generally, courts hold that vehicle stops are lawful if the officer has a reasonable suspicion that the vehicle’s driver or occupants have committed or are in the process of committing a crime. However, the state must point to specific facts, in conjunction with logical deductions, that point to the stop’s lawfulness. In most cases, reasonable suspicion inquiries are a question of law and fact. However, in cases such as this, the question is whether the state’s evidence meets the “minimum showing”, and is, therefore, a question of law.

Court Finds Police Improperly Impounded Car After New York Arrest

November 30, 2020 | Peter Howard Tilem

In New York, law enforcement may impound a person’s car for several reasons, and not all of the reasons require the commission of a crime. However, the main reasons police officers may impound a car occur when the driver is driving under the influence of drugs or alcohol, if the car is abandoned or illegally parked, if the vehicle contains evidence of a crime, or if the car presents a safety hazard. In any event, many law enforcement officials improperly impound cars because they do not know or want to follow the state’s impounding rules. Moreover, the impound lot owners often relish in the hefty fees associated with impounded vehicles, and are reluctant to release the car. Car owners must understand the rules and procedures surrounding impounding to avoid illegal searches and retrieve their vehicle without significant penalties.

Although impounding poses significant financial burdens, the more pressing issue is what scope of authority law enforcement has after the car has been impounded. Usually, police will conduct an inventory search and catalog their findings after the car has been impounded. This typically occurs to document the contents of the vehicle and protect the police from hidden dangers or theft accusations. However, in some situations, police officers may improperly impound and search a vehicle. In these cases, any recovered evidence from an illegal search may be suppressed.

For example, recently, the Supreme Court of the State of New York, issued an opinion in a case involving evidence retrieved from a defendant’s impounded vehicle. In that case, the defendant was convicted of several serious criminal offenses. After conviction, the defendant argued that the court should vacate several of his convictions because the evidence used to convict him was illegally obtained. Under New York’s laws, the police may impound a car and conduct an inventory search after a driver’s arrest if they act according to “reasonable police regulations.” Additionally, the police may impound a vehicle without a warrant in the interests of public safety and “community caretaking.” In this case, the court found no evidence that the defendant’s vehicle was illegally parked or that the car was in a location where it may be ripe for theft or vandalism. Further, the State failed to present evidence of the New York Police Department’s procedure regarding impounding a car after an arrest, or that the police officer followed those alleged procedures.

New York Appellate Court Upholds Murder Conviction Over Defendant’s Challenge to Admission of His Statement

November 24, 2020 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York homicide case involving a defendant’s appeal of his conviction. The defendant appealed the lower court’s decision to admit his statement to police in the moments after the murder. However, the appellate court found that there was no error in admitting the statement. The court further explained that, if there was any error in admitting the statement, doing so was harmless.

The Facts of the Case

The defendant was alleged to have killed another man, whom he met out on the street around 2 a.m. According to the court’s opinion, the defendant was drinking beer with friends. Throughout the evening, the defendant expressed some violent thoughts, and discussed his gang membership.

What Should I Do If Police Come To My Door

November 18, 2020 | Peter Howard Tilem

With Corona Virus (Covid-19) restrictions increasing just a week before Thanksgiving and the Governor of New York dictating how many people may attend a Thanksgiving Dinner at your house it is worth reviewing what rights you have if police unexpectedly show up at your door. This situation could arise for a variety of reasons including a crime committed nearby having nothing to do with you and the police just wanting to canvass the area for witnesses and/or cameras or a noise complaint or some other complaint called in by your neighbors. Often police may accompany a Child Protective Services (CPS) worker responding to a child abuse or neglect report or the police may sometimes knock and ask questions about a missing child, or adult. In any case, it is important to understand your rights.

Firstly, Courts recognize the right of the police officers to approach your door and knock or ring the door bell. Secondly, it is important to recognize that police officers are people, just like anyone else. There job is difficult and important and they should be treated with courtesy and respect at all times. It is also essential that you not give a police officer or anyone else that comes to your door any reason to fear for their safety by making any sudden movements or answering the door with a visible weapon.

There is absolutely no requirement that you answer the door if the police knock. Just as if a police officer were to approach you on the street you have no obligation to speak to the officer and no obligation to answer the door. The police officer may not enter your home except with your consent, with a search warrant, arrest warrant or in some very narrow exceptions to the warrant requirement. Rarely, will police officers have a warrant and then casually knock on the door. If they have a warrant they will either break down the door without knocking or announce that they are the police and that they have a warrant and that they will breakdown the door if you don’t open the door immediately.

Court Finds Officers Lacked Probable Cause to Stop Defendant in Recent New York Drug Dealing Case

November 2, 2020 | Tilem & Associates

Earlier this month, a state appellate our released an opinion in a New York drug case in which the defendant was alleged to have sold cocaine. The defendant claimed that the evidence obtained as a result of his arrest must be suppressed, because it was obtained in violation of his constitutional rights. Ultimately, the court agreed that the officers lacked justification to stop him, ordering a new trial.

The Facts of the Case

According to the court’s opinion, police officers were conducting an undercover drug surveillance. Officers sat in a car as they watched the defendant interact with another person. Although the officers were looking at the defendant’s back, and could not see what, if anything, was exchanged, they believed it to be a drug transaction.

The officers called in back-up to stop both the defendant, and the alleged buyer. Officers pulled the defendant over and immediately took him out of the car, and placed him in handcuffs. The officers then questioned the defendant, who admitted to possessing cocaine. The officers then retrieved cocaine from his pocket. Other officers stopped the alleged buyer and returned her to the scene, where she identified the defendant as the person who sold her the cocaine.

New York Court Weighs in On the Legality of Drunk Driving Checkpoints

October 20, 2020 | Peter Howard Tilem

As New York DWI lawyers, we are following a recent state appellate court opinion on a New York DWI case discussing the procedures law enforcement must use to legally conduct a DWI checkpoint. Ultimately, the court concluded that the checkpoint used by law enforcement leading to the defendant’s arrest was legal, and affirmed the defendant’s conviction.

Drunk driving checkpoints are used throughout New York to catch intoxicated drivers. However, historically, these checkpoints have been used to target specific groups of motorists. Thus, courts have held that all DWI checkpoints must comply with certain guidelines; otherwise, they are unconstitutional. It is important for attorneys that handle New York DWI’s to know the specific requirements for operating a constitutional checkpoint when conducting suppression hearings.

The Facts of the Case

The relevant facts in the case are straightforward: the defendant was stopped at a sobriety checkpoint and eventually arrested for driving while intoxicated. Evidently, there were signs immediately before the checkpoint entrance, indicating the presence of law enforcement. All law enforcement were in marked cars with the vehicle’s emergency lights on, and all officers were wearing their uniforms. Additionally, the officers operating the checkpoint would stop every car that passed by. However, officers would not ask motorists for their license and proof of insurance, as not to impede the flow of traffic any more than necessary.

What Is a New York Eavesdropping Warrant?

October 14, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York drug case, affirming the defendant’s conviction. The court’s opinion, although brief, discusses what has come to be known as an eavesdropping warrant.

The Fourth Amendment to the United States Constitution protects all individuals against unreasonable searches and seizures. Over the years, courts have generally held that, to be “reasonable,” a search must be supported by probable cause. Most often, this requires law enforcement to obtain a warrant to conduct a search. Of course, there are certain situations when a warrant is not needed, such as if the officer observes illegal conduct, or the search is conducted incident to a lawful arrest.

Absent an exception to the warrant requirement, law enforcement must obtain a warrant to search a person, their home, their car, or any other private area. Often, law enforcement officers want to search a physical place; however, if they want to search a suspect’s electronic communications, different rules apply.

New York Court Discusses Defendant’s Motion to Suppress Based on Misidentification by Law Enforcement

September 19, 2020 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York gun possession case discussing the defendant’s claim that officers searched him without possessing the necessary probable cause or reasonable suspicion. After reviewing the evidence and applying the relevant law, the appellate court agreed, finding that the defendant’s motion to suppress should have been granted. As a result, the indictment against the defendant was dismissed.

The Facts of the Case

According to the court’s opinion, police officers saw the defendant standing on the side of the road and mistook him for his brother, whom they knew had a warrant out for his arrest. As the officers approached the defendant, he fled on foot. Eventually, the officers caught up to the defendant and, upon searching him, found a loaded gun. Subsequently, the defendant made a statement admitting to possessing the gun.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to approach him. The defendant asked the officers about the existence of the warrants and whether the warrants were still valid. However, the defendant did not specifically ask to see the warrants and the prosecution did not produce them. The trial court denied the motion, and the defendant was later convicted.