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

New York Court Holds Officer’s Observation of “Bulge” in Defendant’s Pockets Did Not Justify Search

June 28, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York burglary case involving the defendant’s motion to suppress the physical evidence that police recovered when they searched his pockets. Ultimately, the court concluded that the officer lacked probable cause to conduct the search, and the defendant’s motion was granted.

According to the court’s opinion, police received a call reporting a burglary in which a resident reported $5,500 was stolen. About an hour after the call, an officer came upon the defendant, who matched the description given to police, which was a person “in dark clothing.” The officer approached and asked the defendant for his identification. Initially, the defendant turned and walked away, but later approached the officer. According to the officer, the defendant put his hands into his pockets. The officer asked the defendant to remove his hands and place them on his head, and the defendant complied. The officer then noticed bulges in each of the defendant’s pockets. The officer patted the defendant down, and could not discern what the bulges were, although he could tell they were not weapons. The officer then reached into the defendant’s pockets and removed a large amount of cash. The defendant was arrested and charged with burglary.

The defendant filed a motion to suppress the cash, arguing that the police officer did not have probable cause to reach into his pockets. The lower court granted the defendant’s motion, and the prosecution appealed.

New York Court Suppresses Gun Found Following Traffic Stop

May 31, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case, reversing a lower court that found the defendant’s motion to suppress lacked merit. In holding that the defendant’s motion should have been granted, the appellate court explained that the defendant’s conduct failed to provide the officer with probable cause to search the vehicle without a warrant.

The Facts of the Case

According to the court’s opinion, a police officer saw the defendant make a left turn without using a signal. As the officer initiated the traffic stop, the defendant pulled into a driveway. The defendant initially got out of the vehicle, but the officer told him to get back inside. The defendant was unable to open the window, explaining to the officer that it was broken. Eventually, the defendant moved to the passenger side, opened the door, and fled.

Once the officer caught the defendant, the defendant explained he ran because he had a warrant for his arrest. The officer went back to the defendant’s car, noticing the smell of marijuana. The officer looked through the car, finding small baggies and a substance that he believed was crack cocaine. The officer then obtained a warrant to fully search the car. Upon searching the vehicle, the officer found a semi-automatic handgun.

Can a New York Police Officer Assume the Person Driving a Car Is the Registered Owner?

May 25, 2020 | Peter Howard Tilem

Earlier this month, the United States Supreme court issued a written opinion in a criminal law case discussing an issue that will become very important in many New York drug possession and firearms cases. The case involved the question as to whether a police officer can reasonably assume that the person who is operating a vehicle is the registered owner of that vehicle. While this inquiry may seem like an unimportant one, in reality, it will have a major impact on motion practice and suppression hearings across the country.

The Facts of the Case

According to the court’s opinion, a sheriff deputy ran the license plate on the back of a pick-up truck to find that the registered owner had a revoked license. The deputy pulled the vehicle over, assuming that the registered owner was driving the vehicle. When the deputy discovered that the defendant was indeed the one driving, he cited the defendant.

The defendant filed a motion requesting to suppress all the evidence gathered from the stop, arguing that the deputy lacked reasonable suspicion when he decided to pull the defendant over. The trial court granted the defendant’s motion, but the appellate court reversed. On appeal to the state’s high court, the case was again reversed, this time in favor of the defendant. That court held that the deputy was acting on a “hunch” when he assumed that the registered owner of the car was the one who was driving it. The prosecution appealed to the United States Supreme Court.

Court Discusses New York Automobile Exception to the Search Warrant Requirement

May 7, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the automobile exception to the search warrant requirement. Generally, law enforcement must obtain a search warrant that is supported by probable cause before they can conduct a search. However, over the years, courts have crafted a variety of exceptions to the warrant requirement. One of the most often cited exceptions is the automobile exception.

The automobile exception came about based on the understanding that vehicles are mobile. Thus, if police officers were required to obtain a warrant to search a car, there would be a risk that the officers would not be able to locate the car again, or that any evidence inside the car could be hidden or destroyed. Thus, if an officer has probable cause to believe that there may be evidence or contraband inside a vehicle, the officer can search the vehicle without a warrant.

According to the court’s opinion, police officers witnessed the defendant give a carton of cigarettes to another man in exchange for money. The officers approached the defendant, who was standing near the open door of a van. As the officers got closer to the van, they could see that it was full of duffle bags and that one of the bags contained additional cartons of cigarettes. One of the officers then opened one of the packs in the carton that the defendant had just exchanged, noticing that there was no New York tax stamp. Officers arrested the defendant. Before driving the defendant’s car back to the station, one of the officers conducted a “quick check” of the vehicle, finding a firearm under the passenger seat.

New York Court Suppresses Defendant’s Statement Made to Out-of-State Law Enforcement Officers

April 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York criminal case involving a question as to whether statements that the defendant made to Pennsylvania state troopers could be used against him in his New York arson case. Ultimately, the court concluded that the Pennsylvania State Troopers questioned the defendant in violation of his right to counsel. Thus, the court held that the statements should have been suppressed.

According to the court’s opinion, the defendant was under investigation for several arsons in New York. After detectives interviewed the defendant about one of the fires, the defendant fled to Pennsylvania. A short time later, Pennsylvania State Troopers arrested the defendant for an alleged arson offense that allegedly occurred in Pennsylvania. The defendant requested that the court appoint counsel.

Upon hearing about the defendant’s arrest, New York police traveled to Pennsylvania to interview the defendant. While New York police did not actually interview the defendant, they observed as Pennsylvania State Troopers asked the defendant questions about the New York arsons without the presence of defense counsel. The defendant made several statements regarding the New York arsons.

New York Court Affirms Denial of Motion to Suppress, Finding the Defendant Consented to the Search

March 7, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York gun possession case involving the denial of the defendant’s pre-trial motion to suppress. Motions to suppress are often the most critical stage of a trial in cases involving guns or drugs, especially where the contraband item is found on the defendant. In this case, the court ultimately upheld the denial of the defendant’s motion to suppress, finding that the defendant gave the officers consent to search his car.

Consent is one of the few major exceptions to the warrant requirement. Generally, law enforcement needs a warrant to conduct a search of a person or their belongings. To obtain a warrant, an officer must establish that there is probable cause to believe that a crime was committed, and the search would turn up evidence of that crime. However, if a suspect consents to a search, that eliminates the need for an officer to obtain a warrant. To be valid, consent must be voluntary, and cannot be forced or coerced. Courts look to the surrounding circumstances to determine the validity of a suspect’s consent.

According to the court’s opinion, police received a 911 call stating that a man was banging on a hotel door with a gun. Police arrived and began to speak with the defendant outside the hotel room. He was not handcuffed at the time.

New York Court Grants Motion to Suppress Based on Officer’s Illegal Stop

March 1, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York burglary case requiring the court to determine whether a police officer’s actions violated the defendant’s rights prior to his arrest. Ultimately, the court concluded that the officer lacked justification to stop the defendant, search his bag, and then transport him to the scene of the crime so that a show-up identification could be made. Thus, the court affirmed the lower court’s decision to grant the defendant’s motion.

According to the court’s opinion, police officers received a report of a burglary. Several officers went directly to the scene and others canvassed the area looking for a suspect. The description given by the caller stated only that the suspect was a male.

An officer saw the defendant walking with a cell phone and a bag a few blocks away from the scene. The officer asked the defendant what he was doing, to which the defendant responded he was looking through garbage cans. The officer searched the defendant’s bag and then told him that he was going to be transported to the scene. At the scene, the defendant was identified as the burglar.

Are New York Police Officers Permitted to Assume That a Driver Is the Vehicle’s Registered Owner?

January 21, 2020 | Tilem & Associates

Police officers must have a justifiable reason when they decide to pull over a motorist and initiate a traffic stop. Typically, an officer must have either probable cause or a reasonable suspicion, depending on the surrounding circumstances. When the police pull over a driver without a sufficient reason, anything that an officer finds in a subsequent search of the vehicle is subject to a motion to suppress by a New York criminal lawyer.

Recently, the United States Supreme Court heard oral arguments in a case that touches on this very issue and can have a dramatic effect on the enforcement of Aggravated Unlicensed Operation in New York. Specifically, the question that the Court must answer in its upcoming opinion is whether it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle, absent any information to the contrary. This is critical, when a plate reader mounted on a police car shows that the registered owner of the car has a license that has been suspended or revoked.

The case arose when police officers ran the plates on the defendant’s vehicle. Upon doing so, the officers determined that the registered owner of the vehicle had a suspended license. Assuming that the person driving the car was the vehicle’s registered owner, the police officers pulled over the defendant. The officers confirmed that the defendant was also the registered owner of the vehicle, and they issued him a ticket.

New York Court Reverses Robbery Conviction Based on Illegal Arrest and Tainted Identification

January 5, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving the defendant’s motion to suppress an identification made by the complaining witness, as well as statements made by the defendant after his arrest. Ultimately, the court held that because the prosecution failed to establish that the defendant’s arrest on an unrelated matter was supported by probable cause, the subsequent identification and statements were “fruit of the poisonous tree,” and must be suppressed.

According to the court’s opinion, a man was robbed in Queens. A day or two after the robbery, the assigned police officer provided the complaining witness with a photo lineup, where he identified the defendant. The officer filled out an identification card, which essentially put other police officers on notice that the defendant should be arrested. Several days later, the assigned officer was informed that the defendant was in custody based on an unrelated matter. The officer brought the complaining witness to the station, where he identified the defendant. The defendant then gave a statement to the police.

The defendant filed a motion to suppress the witness’s identification, as well as the statement he made following his arrest. The trial court denied the motion, finding that the “fellow officer rule” justified that defendant’s arrest. Under the fellow officer rule, if an arresting officer lacks probable cause to arrest, the arrest may still be valid if the arresting officer makes the arrest based on communication with a fellow officer who had information justifying the arrest. The defendant was convicted of robbery and appealed the denial of his motion to suppress.

New York Court Approves of Police Officers Inventory Search

December 24, 2019 | Peter Howard Tilem

In October 2019 we published an article about inventory searches and how the Court are reviewing such searches more carefully. However, earlier this month, a state appellate court issued a written opinion in a New York credit card fraud case involving a search of the defendant’s belongings that occurred after he was arrested for an unrelated crime. The case is useful in that it illustrates the concept of an inventory search, which frequently is cited as a valid basis for searches that may otherwise be unsupported by probable cause.

The U.S. and New York constitutions provide citizens with certain rights. Among those rights are those contained in the Fourth Amendment, which states that citizens are to be free from unreasonable searches and seizures. Over time, courts have fleshed out the protections of the Fourth Amendment to mean that a police officer cannot conduct a search without a warrant.

Of course, over the years, courts have allowed several exceptions to the warrant requirement. Depending on the situation, there may be a lower burden that police officers must meet or, in some cases, police officers may not need any additional facts to support a search. For example, police do not need a warrant (or even probable cause) to seize an item that is in plain view. The concept behind the plain-view doctrine is that an officer is not conducting a “search” under the terms of the Fourth Amendment if he recovers something that readily observable and in plain view. Another example is the warrant exception involving vehicles. Courts have held that vehicles pose a unique concern for officers in that they are mobile, limiting officers’ ability to go retrieve a warrant. Thus, there is a relaxed standard for searching an automobile.