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Articles Posted in Search and Seizure

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Earlier this month, a state appellate court issued an opinion in a New York gun case holding that police were not justified in searching the defendant’s backpack without a warrant. The case presents an informative and important discussion of the exigent-circumstances doctrine, which allows police to bypass the warrant requirement in certain limited situations.

According to the court’s opinion, police officers went to the defendant’s home based on a tip that a man was selling drugs out of the home. The tip also mentioned that the man selling drugs kept a gun in a distinctive backpack. Upon arriving at the scene, officers saw the defendant smoking a joint on the front porch. The defendant allegedly stood up, cursed, grabbed a distinctive looking backpack, and ran inside.

Officers followed the defendant into the home, and observed the defendant toss the backpack on the floor in the home. Police handcuffed the defendant on the second floor. After police secured the defendant, they opened the backpack. Inside the backpack was a gun and some marijuana. The defendant was charged with criminal possession of a weapon and possession of marijuana.

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the concept of forced abandonment. Generally, when a defendant discards an item – such as narcotics or a gun – they lose any ability to argue for the item’s suppression. However, when a defendant’s choice to discard an object is the product of forced abandonment, the object must be suppressed. Forced abandonment occurs when the defendant’s discarding of an item was “spontaneous and precipitated by the unlawful pursuit by the police.”

According to the court’s opinion, police received a report of gunshots near an apartment complex. The report indicated that the suspect was a black male in a group of about eight other men. As officers arrived, they saw two black men, one of whom was the defendant. The officers could not initially see anything in either man’s hand. When the men noticed the officers, the men turned around and ran.

The officers followed the men, giving a description over police radio. The officers lost sight of the men for a few moments, but then regained sight of the second male. As officers were arresting this man, one of the officers involved in the chase looked at a nearby apartment building and saw the defendant with a gun in his hand. The defendant threw the gun and ran. Police caught up to the defendant, arrested him, and charged him with possession of a firearm.

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Recently, we conducted a suppression hearing in New York County (Manhattan) Criminal Court, in a DWI case where the Court suppressed evidence that was found pursuant to an inventory search.  Courts are increasingly scrutinizing inventory searches.  In July, a state appellate court issued a written opinion in a New York forgery case discussing whether the police officers’ search of the defendant’s vehicle was legal. Ultimately, the court concluded that the search was not a valid inventory search, and reversed the defendant’s conviction.

Under New York criminal law, most searches must be supported by a warrant. However, there are exceptions to this general rule. One exception is the inventory search. An inventory search is when a police officer searches a person’s car after conducting a valid arrest. The justification for the inventory-search exception is that inventory searches serve three purposes:

  1. They protect the owner’s belongings;
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On July 31, 2019, a state appellate court issued a written opinion in a New York drug case discussing whether police officers can search a person’s car if they smell marijuana. Ultimately, the court concluded that the search was permissible because the smell of marijuana gives rise to probable cause to search the vehicle. With that said, as more states relax the laws prohibiting the possession of marijuana, courts across the country are rethinking this holding.

According to the court’s opinion, police officers stopped a vehicle in which the defendant was a passenger. Once the officers stopped the car, they claimed the smell of marijuana was “emanating from the vehicle” upon their approach. The police officers ordered the driver and two passengers, one of whom was the defendant, out of the vehicle. The officers searched the defendant, put him in handcuffs, and placed him in the back of their squad car. They then searched the car, finding a small amount of marijuana in the car’s ashtray as well as 16 packets of cocaine in the rear of the vehicle, near where the defendant was sitting.

The defendant, charged with possession of cocaine, filed a motion to suppress the cocaine. The defendant argued that the police officers lacked probable cause to search the vehicle. He also claimed that the cocaine should be suppressed because he was illegally handcuffed and placed in the back of the police car. The defendant did not contest the validity of the traffic stop; only the officer’s decision to search the vehicle.

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In either a New York drug-possession case or a New York Gun Possession case seeking suppression of the contraband can often be a defendant’s best defense.  Earlier this month, a state appellate court issued an opinion in which the court reversed the defendant’s drug conviction, finding that the police did not have probable cause to arrest him. The case illustrates how police officers attempt to justify stopping a person based on nothing more than their subjective belief that the person is engaged in suspicious activity.

According to the court’s opinion, two police officers were on a routine patrol when they saw the defendant running on the sidewalk. The defendant then suddenly ran across the street, requiring several cars to slow down. The police officers decided to stop the defendant and issue a summons for disorderly conduct. As the police were approaching the defendant, they noticed he was clutching something in his pocket. Believing that the defendant had a weapon, the officers drew their weapons and ordered the defendant to place his hands in the air. The defendant complied and was frisked. The police found a knife and five small packets of cocaine.

The defendant filed a motion to suppress the drugs that were recovered as a result of the search, arguing that the police officers had no reason to stop him and issue a summons for disorderly conduct.

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Often in a New York murder case the court may need to determine if the police officers’ recovery of the alleged murder weapon violated the defendant’s constitutional rights.  Earlier this month, a state appellate court issued an opinion in a New York murder case requiring the court to determine that issue. Ultimately, the court concluded that the officers did not have the level of suspicion necessary to stop the car in which the defendant was a passenger. Thus, the court determined that the stop violated the defendant’s rights and suppressed the gun recovered as a result of that stop.

According to the court’s opinion, on October 2, 2011, someone entered a residence, shooting and killing one of the occupants. Two days later, an anonymous person called into 911, reporting that there were several males “suspiciously” going in and out of a U-Haul trailer. The males were described as black and Hispanic. The caller stated that three of the males were wearing a black sweatshirt, a brown hoodie, and a red hoodie.

Police officers arrived at the scene, but did not find a U-Haul truck on location. However, while the officers were still in the area, they saw a U-Haul truck drive by. A black male in a brown hoodie was driving the truck. Police stopped and searched the truck, recovering a gun that was later tied to the murder. The defendant, who was a passenger in the truck, gave a statement indicating that he shot the victim after the victim reached for his gun. The defendant filed a motion to suppress the gun, which was denied by the trial court. The defendant was ultimately found guilty of second-degree murder, and appealed.

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Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a  search warrant. Thus, confidential informants can play a significant role in many New York drug cases.

However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.

To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.

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Earlier this month, a state appellate court issued an opinion in a New York gun possession case, holding that the lower court improperly denied the defendant’s motion on the basis that he did not have standing to suppress the gun. The case also presented the issue of whether the lower court properly prevented the defendant from asking the arresting officer about a previous civil case that had settled.

What Is Standing?

Standing refers to a party’s ability to bring a claim or file a motion. In the context of New York search and seizure law, the prosecution will often argue that a defendant does not have standing to argue for suppression of an item because the item was discovered without infringing on the defendant’s constitutional rights.

A typical example of where a defendant may not have standing is when an object is in plain view. If an object is in plain view, a defendant does not have standing to argue that the motion should be suppressed because the defendant does not have a privacy interest in something that is readily visible by the public.

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When someone is arrested and charged with a serious New York crime, they are often subjected to pretrial incarceration. This may be because they are unable to afford bail on their new case, the Court held them without bail, or because they were on probation or parole at the time they were arrested for the new allegations. In any event, after being arrested and subsequently incarcerated, it is common for defendants to make several phone calls to friends, loved ones, and employers. These phone calls are recorded, and anyone charged with a New York crime should not discuss their case over the phone with anyone except their attorney.  These recorded phone calls have been increasingly used by prosecutors in New York as evidence in the criminal case.

A recent case issued by a New York appellate court held that a correctional facility does not violate a defendant’s Fourth Amendment rights when it discloses the contents of an inmate’s phone conversations to the prosecution.

The Facts of the Case

According to the court’s opinion, the defendant was facing charges of burglary and robbery, and was held at Rikers Island for eight months until his family was able to post bail. During his pretrial incarceration, the defendant made approximately 1,100 phone calls. At trial, the prosecution attempted to admit excerpts from four of those calls, containing incriminating statements. The defendant filed a motion to preclude the conversations from being admitted into evidence, arguing that their admission would violate his Fourth Amendment rights.

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As a general rule, police officers cannot enter a home without  a warrant. While exceptions do exist, they are somewhat rare and are better left for another blog post. Once a police officer obtains a search or arrest warrant, the officer must comply with all procedural guidelines governing the execution of warrants. If officers disobey these guidelines, any evidence seized as a result of the search or arrest may be deemed inadmissible by the court.  In addition, a defendant can challenge the issuance of the search warrant in certain circumstances.

One issue that frequently comes up is when police officers can forcefully enter a home to execute a search or arrest warrant. Generally speaking, if a valid warrant is issued, officers may approach the house named in the warrant and enter that home. However, under New York law, a police officer must first knock, announce their presence as police, and give the occupant an opportunity to answer before entering forcefully. This is known as the “knock and announce rule.”

New York Laws sections 690.50 (search warrants) and 120.80 (arrest warrants) provide for the specific procedures that must be followed when executing a warrant. Both statutes require an officer serving a warrant knock and announce their presence, and both statutes also contain exceptions when an officer is permitted to forcefully enter a home without first complying with the knock-and-announce rule.

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