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

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.

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.