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

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.

New York Court Vacates Defendant’s Escape Conviction, Concluding Police Officers Were Not Actually Faced with an Emergency Situation

December 4, 2021 | Peter Howard Tilem

Recently, a New York court vacated a defendant’s criminal escape conviction after he challenged the lower court’s suppression ruling. Originally, the defendant was convicted after police officers claimed they had no choice but to search the defendant’s drawstring backpack since they were faced with an emergency situation that posed an immediate safety risk. The appellate court denied this claim, concluding that there was no such emergency and that the officers should not have actually searched the defendant’s backpack. Even though the defendant had already served time in prison, the court vacated the conviction that was based on his attempt to escape prison after having been arrested. This is an extremely important Fourth Amendment, search and seizure case holding that absent an emergency or fear that the evidence will decay or be destroyed, the police may not search a closed container incident to a lawful arrest.

Facts of the Case

According to the opinion, police in New York received a call about the defendant trespassing in a residential building. Upon the police officers’ arrival, the building’s superintendent identified the defendant, who was standing near the building, as the trespasser. The officers approached the defendant and tried to ask him a few questions, but he cursed at them and fled. After the officers caught up to the defendant, they took him to the ground and handcuffed him. One officer suffered a knee injury as a result.

The other officer handcuffed the defendant, who was wearing a drawstring backpack and called for backup. The same officer patted down the defendant and the backpack; during this pat-down, the officer felt something in the backpack. Immediately looking inside, he found a box with the words “9mm” written on it. The officer removed the box, opened it, and saw what he believed to be an illegal silencer. The officer arrested the defendant for criminal trespass and weapon possession.

Scathing Dissent Submitted by New York Appellate Judge in Fourth Amendment Case

November 9, 2021 | Peter Howard Tilem

The Fourth Amendment to the United States Constitution protects residents from unreasonable search and seizure of themselves and their property by law enforcement. The protections afforded by the Fourth Amendment are generally understood to be the strongest when the home of a suspect is involved. The New York Court of Appeals recently released a ruling concerning a Fourth Amendment claim that social guests in the home of a friend are entitled to some level of fourth amendment protection by their presence in the home. Although the Court ultimately rejected the defendant’s arguments, one judge on the panel submitted a passionate dissent to the majority decision, suggesting that the law in this area is not entirely settled at this time.

The defendant in the recently decided case was charged and convicted of a drug crime after police allegedly witnessed him sell drugs to an undercover officer and followed him into an apartment building. The police entered an apartment in the building that they believed the defendant had entered but had no warrant to enter that home. After noticing evidence of commercial drug activity in the home, police obtained a warrant to search the home and found the evidence which was later used to convict the defendant at trial.

The defendant challenged the admissibility of the evidence that was collected by police, challenging their entry into the home of his friend without a warrant. The defendant maintained that he had been eating dinner in the apartment “all night” and the police misidentified him. Under the Fourth Amendment, the defendant argued, people are entitled to a reasonable expectation of privacy when they are socially visiting the home of a friend for dinner. The trial court rejected the defendant’s contentions without holding a hearing, ruling that he had no right to challenge the search of another person’s home.

Court Discusses Admissibility of Defendant’s Statements to Police in Recent New York Robbery Case

October 20, 2021 | Tilem & Associates

Recently, a state appellate court issued a written opinion in a New York robbery case involving a defendant’s motion to suppress statements he made to law enforcement. Specifically, the case required the court determine if the defendant’s statements were admissible or whether they were the product of a violation of his constitutional rights. Ultimately, the court concluded that the defendant’s statements were admissible.

The Facts of the Case

According to the court’s opinion, a police officer witnessed the defendant roll through a stop sign. The police officer pulled over the defendant and requested his driver’s license, registration, and insurance card. As the defendant retrieved the requested items, the officer noticed a can of pepper spray in the glove box. The officer also recognized the vehicle as matching the description of one used in a recent robbery in which the person committing the robbery used pepper spray on the alleged victims.

The officer arrested the defendant and read him his Miranda warnings. Later, the defendant provided a statement to police. While the exact statement was not outlined in the court’s opinion, it’s fair to say that it was against his interest.

New York Court Refuses to Suppress Drug Evidence Found During Warrantless Vehicle Search

October 14, 2021 | Tilem & Associates

The Fourth Amendment of the Constitution is the amendment that protects individuals against unreasonable searches and seizures at the hands of law enforcement. This constitutional protection is typically understood to require that an officer have a warrant before conducting a search. However, over time the courts have interpreted the Fourth Amendment to include certain exceptions that allow a police officer to bypass the warrant requirement. A recent New York drug case highlighted a situation in which an officer may not be required to produce a warrant before searching someone’s vehicle for drugs.

This case involved a defendant’s failed motion to suppress after evidence was obtained during a vehicle search. In this case, after police officers approached an illegally parked car where the defendant sat in the driver’s seat, one of the officers smelled an odor that he recognized to be PCP. The officer received regular training on PCP and other drugs and had encountered the drug numerous times before. The defendant gave the officers a fake name, and the officer observed that the defendant had glassy eyes and slurred speech.

When the defendant was directed to step out of the vehicle, he made a sweeping motion with his hand, which indicated to the officer that the defendant was attempting to hide illegal contraband. The officers conducted a search of the vehicle and found a bag of cocaine and PCP-dipped cigarettes. The defendant waived his Miranda rights and confessed to possessing the cocaine.

New York Court Affirms that Tips Called in to 911 Must Be Reliable to Justify a Warrantless Stop

October 8, 2021 | Tilem & Associates

In many cases, such as gun cases or drug cases, law enforcement agencies rely on the public to report criminal or suspicious activity to the police or emergency phone line. Tips received by police from the public can help an officer form reasonable suspicion that someone has committed, is committing, or is about to commit a crime. With reasonable suspicion, police officers may be able to stop, detain, question, and search a suspect without a warrant. Because of this, tips from the public are often used by police officers to justify warrantless searches.

Although a phone-in tip can help an officer have a valid reasonable suspicion that criminal activity is afoot, the existence of a tip, particularly an anonymous tip, is not in itself sufficient to justify performing a search without a warrant. The New York Court of Appeals, New York’s highest court, recently reversed a trial court ruling that permitted an officer to search a car without a warrant based on a phoned-in tip.

The defendant from the recently decided appeal was riding in a friend’s vehicle when they were stopped by police. According to the facts discussed in the appellate opinion, the arresting officer had received a radio call from dispatch that someone in a vehicle matching the description of the van the suspect was riding was reported to be visibly brandishing a firearm. Based on the tip and the vehicle description, the police stopped the vehicle and performed a search for weapons, without consent or a warrant. After a firearm was found in the defendant’s possession, he was arrested and charged with a gun offense.

New York Court Denies Defendant’s Request to Suppress Statements Made After Hit and Run Accident

October 2, 2021 | Tilem & Associates

In a recent opinion from a New York court involving a leaving the scene of an accident, the defendant’s motion to suppress was denied. The defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree and filed a motion to suppress several statements he made to a sergeant who came to question him after the incident. The appellate court denied the motion because it found the defendant’s freedom was not significantly restricted when he made statements to the sergeant.

The Facts of the Case

According to the opinion, the driver of a van struck another vehicle then drove away from the scene. Because the van’s license plate fell off while the van was driving away, the county sheriff’s office was able to identify the van’s registered owner. When a sergeant from the sheriff’s office went to question the van’s owner at his farm. The owner made statements that ended up being used against him in court.

After a jury found the defendant guilty of unlicensed operation of the motor vehicle, the defendant appealed, insisting that his statements to the sergeant should have been suppressed. On appeal, the defendant argued that he was both “in custody” and actively “interrogated” by the sergeant, meaning his freedom was significantly restricted while he was being questioned.

Court Finds Car Stop Unconstitutional in Recent New York Drug Case

August 25, 2021 | Peter Howard Tilem

Recently, a state appellate court issued an opinion reversing a lower court’s decision which denied a defendant’s motion to suppress the drugs that were recovered in a New York drug case. The case involved a traffic stop conducted by police officers who were investigating information that a vehicle would be transporting a large quantity of narcotics. Ultimately, the court concluded that the search of the defendant’s vehicle was unconstitutional based on the information the officers had at the time of the stop.

The Facts of the Case

Police officers intercepted communication indicating that a Ford Explorer would be transporting a large amount of drugs through a particular part of the state on a given night. That night, certain New York State Troopers were told to wait on the highway and stop the Ford Explorer as it passed.

Officers waited for six hours for the Ford Explorer. When they saw it approaching, they stopped the vehicle, arrested the defendant and her codefendant, and searched the car. Officers found a large amount of drugs. No law enforcement ever obtained or sought a warrant for the defendant’s arrest or the search of their vehicle.

MAY A POLICE OFFICER HANDCUFF A LICENSED GUN OWNER WHILE HE VERIFIES THE AUTHENTICITY OF THE GUN LICENSE?

August 12, 2021 | Peter Howard Tilem

As the providers of the only pre-paid legal service for gun owners in New York, NY TAC DEFENSE, we are constantly monitoring the law as it pertains to gun ownership in New York. A recent Connecticut case, decided earlier in the week, is worthy of reporting since Connecticut is in the Second Circuit with New York and this case will probably be reviewed by the Court of Appeals in the Second Circuit and any decision will likely become binding law in New York. In the case of Soukaneh v. Andrzejewski, Basel Soukaneh, sued a Waterbury Police Officer who stopped his vehicle one night. The law suit was filed in the Federal district Court for the District of Connecticut. Soukaneh alleged that when he was stopped he handed the police officer his driver’s license and gun license and indicated that he was armed. The Police Officer reacted by handcuffing Mr. Soukaneh while he verified the authenticity of the gun license and while the officer searched the passenger compartment and trunk of the vehicle.

The police officer filed a motion for summary judgment seeking to have the lawsuit dismissed. Among his arguments were that he had probable cause to believe that Basel Soukaneh was in possession of a firearm without a permit until he was able to verify the validity of the permit. Therefore, Police Officer Andzejewski thought he was justified in handcuffing and detaining Mr. Soukaneh. The Court found this conduct to constitute a de facto arrest. The Court strongly disagreed finding that since it was undisputed that the police officer found out that there was a gun in the car either at the same time or after the officer was given the license, that “no reasonable officer” could conclude that they possessed probable cause that Mr. Soukaneh was violating Connecticut law.

The Court likened the firearms license to a driver’s license and concluded that the same way it would be unconstitutional to presume that a driver’s license was invalid and to detain the driver until its validity was verified, it must be unconstitutional to presume that a firearms license was invalid and detain the gun owner until it was verified. The Court found that a contrary finding would “eviscerate Fourth Amendment protections for lawfully armed individuals.”

Court Grants Defendant’s Motion to Suppress Based on Officers’ Contradicting Testimony

July 22, 2021 | Peter Howard Tilem

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine whether it was legal for officers to obtain the defendant’s gun, ammunition, and DNA evidence after a police pursuit. Ultimately, the court determined that the officers gave contradicting testimony about the incident and ordered the suppression of evidence, the firearm, obtained from the police pursuit. The case illustrates the strict procedures that law enforcement must follow when investigating a crime or arresting an individual.

The Facts of the Case

According to the court’s opinion, police officers observed an object bulging out of the defendant’s right waistband. One officer stepped out of the vehicle, causing the defendant to flee. Both officers testified with different versions of events. The first officer stated that she began running after the defendant and attempted to grab him, which led to the defendant dropping a gun. The second officer testified that the first officer attempted to grab the defendant before he began running, causing the defendant to drop the gun before the officer chased him.

The defendant was arrested, and a gun, ammunition, and the defendant’s DNA profile was recovered from the scene. Despite the different testimonies by the officers, the court denied the defendant’s motion to suppress the evidence.