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

New York Appeals Court Sides with Defendant in Firearm Case

April 12, 2023 | Tilem & Associates

In a recent case before a New York appellate court, the defendant asked the court to reconsider his conviction for criminal possession of a weapon in the second degree. In his appeal, the defendant argued that the lower court should have suppressed evidence obtained by the police officers that caught him driving with a firearm. Because the lower court failed to suppress the evidence, argued the defendant, it was the higher court’s responsibility to reverse the judgment and remand the case for further proceedings without the incriminating evidence as part of the record. Ultimately, looking at the evidence in the case, the court of appeals agreed with the defendant and reversed the judgment.

Facts of the Case

According to the opinion, the defendant was driving when two police officers pulled him over for speeding. Once they initiated the traffic stop, the officers questioned the defendant and ultimately found a firearm in his vehicle. The defendant was charged, and he filed a motion to suppress the firearm found in his vehicle. The lower court, however, denied this motion, and the defendant was convicted of criminal possession of a weapon in the second degree.

The Decision

On appeal, the defendant’s main argument was that the officers did not actually have a legal reason to pull him over in the first place, thus making their traffic stop illegal, and any evidence they found as a result of the stop should have been inadmissible. During the hearing on the defendant’s motion to suppress, both officers testified that they pulled the defendant over because they suspected he was speeding. However, neither of the officers had used radar to actually measure the defendant’s speed before they pulled him over. Instead, the officers testified that they estimated the defendant was traveling around 40 miles per hour in a 30-mile-per-hour zone.

Defendant in New York Criminal Case Successfully Gets Incriminating Statements Suppressed

March 29, 2023 | Tilem & Associates

In a recent case involving leaving the scene of an accident or incident before a New York appellate court, the defendant successfully argued that his motion to suppress was improperly denied by the lower court. The defendant was criminally charged and convicted after an incident in which he left the scene of an automobile accident without reporting. On appeal, however, the defendant argued that the police officer questioning him neglected to give him the proper Miranda warnings before soliciting information. Agreeing with the defendant, the appellate court ended up suppressing several of the defendant’s incriminating statements.

Facts of the Case

According to the opinion, state troopers were patrolling one evening when they pulled the defendant and his acquaintance over to the side of the road. Apparently, the troopers had been informed to be on the lookout for a car that looked similar to the defendant’s, whose driver was on the run after colliding with a motorcycle nearby.

The troopers brought the defendant out of his car, told him to place his hands on top of the vehicle, and began to question him about where he had been earlier that evening. At that point, the defendant admitted that he had been driving the car for several hours, including at the time the motorcycle accident happened. Quickly, the defendant backtracked and said that he had actually been on the train earlier that night. When the officer asked which train the defendant had taken, however, the defendant could not think of anything to say.

Defendant in New York Robbery Case Loses on Appeal of Motion to Suppress

February 12, 2023 | Peter Howard Tilem

In a robbery case before a New York appeals court earlier this month, the defendant asked the court to reconsider an unfavorable decision he received at the trial court level. Originally, the defendant was criminally charged with robbery and criminal possession of a weapon, and he asked the lower court to suppress incriminating evidence that an officer found on his person while conducting a search. The court denied the defendant’s motion to suppress, and on appeal, the higher court agreed. The defendant’s argument was rejected, and the original judgment was affirmed.

Facts of the Case

According to the opinion, police officers were called to a residential building one night right as a robbery was taking place. The officers arrested several people at the scene of the crime, then they walked out of the building to find the defendant emerging from a driveway nearby. The driveway was right behind the building where the offense occurred, and the officers approached the defendant to see if he knew anything about the crime.

At that point, the officers tried to ask the defendant several questions, but he immediately began running away. The officers chased him, caught up to him, and arrested him. They quickly found a cell phone and cash on the defendant’s person; the cell phone had several incriminating text messages that ended up playing a part in the State’s case against the defendant.

New York Appellate Division Reverses Burglary Conviction After Illegal Automobile Search

December 1, 2022 | Peter Howard Tilem

The Fourth and Fourteenth Amendments to the U.S. The Constitution prohibits law enforcement officers and other government agents from conducting an illegal search or seizure of persons or property in furtherance of a criminal investigation or prosecution. New York’s state Constitution contains similar provisions. Generally, these Constitutional protections require law enforcement officers to obtain a warrant before performing a search of a person or their vehicle. The warrant requirement does contain exceptions, which allow police officers to perform a search when there is probable cause that evidence of a crime will be found, or for certain safety purposes. The Appellate Division recently reversed a defendant’s burglary conviction which was based upon the fruits of a warrantless search that the trial court had determined to be legally sufficient under an exception to the warrant requirement.

The defendant in the recently decided case was operating a vehicle when he was stopped for a traffic violation. The responding officers testified that they recognized the defendant and his vehicle from a “wanted poster” and an “I-card” that had been distributed to law enforcement after a string of burglaries were reported in the area. The defendant was taken into custody based on his reported description. Police then searched the vehicle and found a backpack which contained property that had been reported stolen in the alleged burglaries. Based on this evidence, the defendant was charged with burglary. Before trial, the defendant moved the court to suppress the physical evidence obtained in the traffic stop, arguing that the police did not have probable cause to search the vehicle based only on the description evidence they knew of at the time of the stop. The defendant’s motion was denied and he was convicted of the charges after a trial.

The defendant appealed the trial court’s denial of his suppression motion, and the appellate division ultimately reversed his conviction. The trial court’s reliance on the “automobile exception” to the search warrant requirement had not been affirmatively argued by the prosecutors before the conviction, and the trial judge’s application of such an exception to deny the defendant’s motion, while not expressly forbidden, was not supported by any evidence on the record when considering all of the circumstances. Because the prosecutors elicited no evidence in support of the trial judge’s reasoning for the denial of the motion, the decision could not stand. As a result of the appellate division ruling, the defendant may not face a conviction for the charges brought against him.

New York Court Grants Defendant’s Appeal in New York Criminal Case, Affirming Defendant’s Motion To Suppress Physical Evidence

September 11, 2022 | Peter Howard Tilem

In a recent New York criminal case, the defendant successfully filed a motion to suppress physical evidence. The defendant was charged with robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree (five counts), criminal possession of stolen property in the fourth degree (four counts), criminal possession of stolen property in the fifth degree (two counts), criminal mischief in the fourth degree, possession of burglar’s tools (three counts), obstructing governmental administration in the second degree, resisting arrest, unlawful fleeing a police officer in a motor vehicle in the third degree, reckless driving, failing to comply with a police officer’s direction, failing to stop at a steady red signal, driving a vehicle on the left side of no-passing markers, failing to signal, driving in excess of the maximum speed limit, and operating a motor vehicle without a license.

In the appeal, the defendant argued that was subjected to an unconstitutional search and seizure during the frisk performed by an officer, when the officer removed a wallet from the defendant’s pocket, and again when the contents of the wallet were searched. As a result, the defendant argues that the wallet and its contents should be suppressed at trial. The appeals court granted his motion, vacating 14 of his counts, and ordering a new trial on those counts.

Facts of the Case

According to the opinion, police officers arrived at the scene of a reported robbery after the defendant allegedly confronted the complainant, claiming to have a weapon, and took the complainant’s wallet. When the police arrived, the defendant allegedly fled on foot, before entering a car and was later apprehended by police officers. The defendant was handcuffed, and a wallet was removed from his pocket. A police officer examined the contents of the wallet and determined that it was the complainant’s wallet. The defendant’s car was identified by police because as he allegedly entered the car, an officer broke the back window of the car so as to make it easier to identify the vehicle, and subsequently reported the vehicle information over the radio. After the defendant was apprehended, he was frisked to ensure officer safety, and the wallet was recovered.

New York Federal Court Sides with Prosecution in Burglary Case, Despite Defendant’s Argument Surrounding Motion to Suppress

August 23, 2022 | Peter Howard Tilem

Earlier this month, a federal court in New York issued an opinion in a burglary and larceny case, ruling on the defendant’s appeal of his motion to suppress. According to the defendant, the lower court had mistakenly denied his motion to suppress physical evidence as well as statements he made to police officers during an encounter in October 2018. The court ended up ruling in the State’s favor, deciding that the evidence should not have been suppressed and that the lower court was indeed correct in its ruling.

Facts of the Case

According to the opinion, early one morning in October 2018, an off-duty officer reported seeing a parked vehicle with one door open and no one in the general vicinity of the car. Two police officers drove to the scene and immediately saw three occupants inside the vehicle. Smelling burnt marijuana, the officers approached the car and asked the occupants what they were doing. The driver responded that they had been smoking marijuana, and the officers asked the occupants to exit the vehicle.

Successfully Moving to Controvert a Search Warrant – Evidence Suppressed and Case Dismissed

July 26, 2022 | Peter Howard Tilem

As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense. As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house. While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion. When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components. One is that the warrant must identify the specific crime for which law enforcement has established probable cause. Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement. (See, People v. Brown, 96 NY2d 80). At a minimum the warrant must particularly describe the places to be searched and the things to be seized. The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized. Exploratory warrants that give police the discretion to look around for evidence are unlawful. If either of those elements are lacking the warrant may be invalid and any evidence suppressed. This is true even though a Judge has signed and authorized the search warrant.

New York Court Denies Defendant’s Appeal in New York Firearm Case, Rejecting Defendant’s Motion to Suppress Physical Evidence

June 16, 2022 | Peter Howard Tilem

In a recent opinion decided in a New York appellate court, the defendant unsuccessfully appealed his New York firearm case. The defendant was originally found guilty of criminal possession of a weapon in the second degree and unlawful possession of pistol ammunition. When evaluating the defendant’s appeal, the court used a four-level test that is common in New York criminal law to assess the legitimacy of interactions between police officers and pedestrians. Determining that the interaction between the officer and the defendant in this case was legitimate, the court denied the defendant’s appeal.

Facts of the Case

The defendant was charged after an interaction with a police officer in 2019. According to the opinion, the officer had received a tip that the defendant had a firearm on his person, so the officer approached the defendant to investigate the situation. When the officer asked the defendant to take his hands out of his pockets, the defendant refused, instead pushing past the officer in an attempt to evade the interaction.

The officer then grabbed the defendant’s pocket. At this point, it became clear to the officer that the defendant had a gun in his pocket, and he used force to stop the defendant so that he could fully investigate the situation. The officer found the gun, and the defendant was arrested and charged accordingly.

New York Court Grants Defendant’s Motion to Suppress in Firearm Case

May 23, 2022 | Peter Howard Tilem

In a recent New York gun crime case decided by a New York City trial court, one of two defendants filed a motion to suppress incriminating evidence. The court, looking at the circumstances surrounding the case, granted the defendant’s motion after considering the fact that the police officer that found the gun was not in immediate danger at the time of her search. As a result, the charges were dismissed.

Facts of the Case

According to the opinion, a New York police officer was on duty around 9:00 one morning when she was notified that a violent altercation had occurred nearby. The call reported that a woman’s ex-boyfriend had brought out a gun during a fight in the woman’s home. After the fight, the ex-boyfriend left the house and got into his car, driving away.

The officer began looking for the vehicle belonging to the ex-boyfriend, who later became one of the defendants in this case. About an hour later, the woman involved in the case called the officer to report that she had found the defendant’s car and that one of the defendant’s friends was sleeping inside the car. The officer immediately arrived at the car and knocked on the window, instructing the defendant’s friend to open the door.

New York Court Partially Sides with Defendant in Drug and Firearms Case

December 10, 2021 | Peter Howard Tilem

Recently, a New York court denied a defendant’s motion to suppress incriminating statements but granted his request for a new hearing in a drug and firearms case. The defendant had been indicted and tried for possession of firearms and controlled substances, but he appealed the verdict by saying that his statements to police officers should have been suppressed. The court denied this motion to suppress but did grant the defendant another hearing based on a second argument he made – that the court did not properly consider whether the DNA evidence used against him was properly analyzed. The court thus reversed the verdict and sent the case back down to the lower court for a new trial.

Facts of the Case

According to the opinion, police officers in Brooklyn (executing a search warrant they had previously obtained) entered the defendant’s apartment to conduct an investigation. Pursuant to police department policy, the officers handcuffed the defendant upon entry. While inside the apartment, a detective asked the defendant his name, date of birth, address, height, and weight. No Miranda warnings were given prior to this line of questioning. At that point, the defendant stated that his children’s mother was letting him stay in the apartment. He also motioned toward a bed in the living room.

After the defendant left his apartment, the officers found weapons, drugs, and drug paraphernalia in one of the apartment’s back bedrooms. The defendant was later indicted and tried on several counts related to the possession of firearms and controlled substances.