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

Can an Officer’s Generalized Knowledge about Crime in an Area Give Him Grounds to Search a Vehicle?

February 28, 2025 | Tilem & Associates

In New York, it is well established that to legally stop a vehicle, a police officer must have reasonable suspicion, based on objective evidence, that the car’s occupants were involved in a crime. Courts go back and forth on what it means for an officer to have “reasonable suspicion.” If an officer knows that an area has high crime rates, does this knowledge alone give the officer the required “reasonable suspicion” to stop a vehicle?

A recent opinion published by a New York court affirms that an officer’s general knowledge of crime in an area is insufficient to establish reasonable suspicion on its own. In the case, a police officer went to a residence in Queens after reports of an alleged burglary. The 911 call indicated that two men were entering the back of the residence. The officer arrived at the scene and noticed a car in front of the house. The car that was at the residence left the home upon the officers’ arrival. Officers followed the car, stopped and searched the car, and arrested the driver for carrying concealed weapons in the vehicle.

Upon further review, however, the court learned that the officers did not have legal grounds to stop the car. The car’s driver was a female, whereas the burglary suspects were both males. There was nothing indicating that the driver might have been involved in the burglary, and it was not enough for the officers to cite the fact that the neighborhood was a high crime area.

Can Police Officers Search a Private Home Without a Warrant but with a Resident’s Voluntary Consent?

February 13, 2025 | Peter Howard Tilem

In the state of New York, it is well established that when police officers have a valid warrant from a judge, they are legally allowed to search a resident’s private property whether the resident likes it or not. What happens, though, if the officers do not have a warrant? Can they still get permission to search by asking for consent of the person living in the home?

New York Case Law’s Answer

In answering this question, New York case law is clear:

“‘[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question.'”

Put another way, if a police officer asks for permission to enter a private home, and if a person with “authority” tells him he can search the home, the officer can do so legally. A person with “authority” could be an owner or a resident of the home, whether that person is the suspect of the crime at issue or not. If, however, the officer wants to search a private bedroom, a resident without access to that bedroom might not have the requisite “authority” to let the officer enter. The burden is on the Police and the Prosecutor to establish that there was voluntary consent.

When Can Police Officers Legally Impound a Vehicle After a Traffic Stop?

January 23, 2025 | Peter Howard Tilem

In some criminal cases, officers impound a suspect’s car after they conduct a traffic stop. Is this allowed? When can an officer impound a suspect’s vehicle under the law in New York? Recent case law helps clarify the answer to this very question.

The standard under New York case law says the following:

“When the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to reasonable police regulations relating to inventory procedures administered in good faith.”

What does this mean? In essence, the police are allowed to impound a car when the driver is arrested and when they impound it according to their office’s regulations. These regulations can vary among police departments, but the case law encourages officers to act “in good faith” when deciding whether or not to impound the vehicle.

What Factors Does a New York Court Consider in Applying the Emergency Exception to a Warrantless Search?

January 2, 2025 | Tilem & Associates

It is well-established in the United States that individuals have a constitutional right to privacy in their homes. Experienced New York criminal defense lawyers screen cases for illegal searches and seizures. Under certain circumstances, though, police officers can obtain warrants from a court and search a private dwelling as part of a criminal investigation. In general, without having obtained a warrant, officers are not allowed to search an individual’s home. There is, however, an exception. In emergency situations, officers are allowed to go into a person’s private residence without a warrant.

Six Factors to Apply

What is an emergency situation? Case law in New York says that officers should consider the following six factors when deciding whether to enter a home without a warrant: the violent nature of the alleged crime; the possible involvement of firearms; the likelihood that a crime has occurred; whether the suspect might be inside the home; the likelihood of the suspect escaping; and the possibility of a peaceful entry.

Ideally, an officer will weigh these factors before entering a home without a warrant. If (and only if) the six factors cause an officer to reasonably believe that an emergency exists, that officer can enter a private dwelling without a warrant. Because an officer will likely not be weighing each factor carefully during what the officer believes to be an emergency, it is the trial court’s job to later review these factors and determine whether the officer’s frame of mind lined up with the factors.

When Can a New York Police Officer Pull You Over for a Traffic Stop?

December 26, 2024 | Peter Howard Tilem

Most drivers are aware that under certain circumstances, a police officer is authorized to pull over vehicles and conduct a traffic stop. What does the law say, though, about what kind of situation allows the officer to legally initiate a traffic stop? Is a traffic stop only allowed if there is a major traffic violation, or do minor ones allow the stop as well?

New York Case Law

According to New York case law, an officer can initiate a traffic stop when that officer has “probable cause to believe that a driver has committed a traffic violation.” The officer uses the entirety of the circumstances to determine whether the driver has committed a traffic violation. The officer can observe any range of traffic violations, whether major or minor. The legal standard is that the officer must have probable cause, i.e. a reasonable basis, for believing that the driver at issue did in fact commit a traffic violation.

Crossing the Fog Line

In a recent case decided by New York’s highest court, the Court of Appeals, the defendant argued that when an officer pulled him over for swerving, the officer did not have probable cause to believe he committed a traffic violation (and therefore that the officer violated the defendant’s rights). In this case, police officers testified that they saw the defendant cross the fog line in the road three times within a tenth of a mile before they pulled him over under suspicion of driving while intoxicated.

New York Police Officers’ “Community Caretaking” Role in Traffic Stops

June 17, 2024 | Peter Howard Tilem

We have previously written that police officers, in New York and elsewhere, have what is called a “community caretaking” duty. This means that officers are not only obligated to enforce the law, but they also must assist an individual when they notice that he or she needs help. Recently, a New York court had to decide how this community caretaking responsibility applies to traffic stops on the road.

In the case that led to the court’s decision, an officer was driving behind another vehicle when the officer noticed one of the passenger doors quickly open and close. The officer thought someone in the car might have needed help, and he therefore initiated a traffic stop. Upon approaching the driver, the officer smelled marijuana. He asked the driver about possible drug use, and the driver admitted to having used ecstasy.

Motion to Suppress

The defendant was arrested, and he quickly filed a motion to suppress. The question before the court, then, was this: was the officer’s stop warranted? At the suppression hearing, the prosecution argued that the stop was acceptable under the officer’s community caretaking duty. The officer genuinely thought someone in the car needed help, and therefore the subsequent actions were reasonable. The trial court agreed with the prosecution and denied the motion to suppress.

New York’s New Standard

The higher court disagreed, and it ended up establishing a two-part test to determine if an officer can legally pull over a car under this community caretaking role. First, the officer must point to specific and objective facts that would lead a reasonable officer to think that a vehicle passenger needs help. Second, the police action must be as unintrusive as possible. Therefore, once the police officer realizes that no assistance is needed, he cannot justify further action under his community caretaking responsibility.

Right to Privacy in Bodily Searches in New York

June 7, 2024 | Tilem & Associates

Under the Fourth Amendment, individuals have a right to be free from unreasonable searches and seizures. The word “unreasonable” can have different meanings in different contexts, but a recent case coming out of the Supreme Court of New York, Third Department, provides interesting case law for one of these contexts. The case serves as a reminder that if you ever have doubts about whether you have been unreasonably searched by a police officer, it is never a bad idea to speak with a New York criminal defense attorney to see if you have options to suppress whatever evidence the officer might have found.

Bodily Examinations

The April 2024 case lists out three kinds of bodily examinations (strip searches) that are common after an officer conducts an arrest: the strip search, the “visual body cavity inspection,” and the “manual body cavity search.” A strip search is when an officer has an individual undress and then visually looks over that person’s body. No physical contact is involved. A visual body cavity inspection, on the other hand, is when the officer visually inspects the individual’s body parts below the waistline. In a manual body cavity search, the officer goes so far as to make contact with the person’s genital or anal area to see if that person is hiding anything there.

In order to initiate a manual body cavity search (the most extreme of the three), an officer must have a warrant from the court, except in emergency situations. Courts recognize that this kind of search is a severe intrusion on a person’s right to privacy, therefore making it difficult for an officer to perform this search without a court’s permission.

Understanding a Criminal Defendant’s Rights During Interrogation in New York

May 21, 2024 | Peter Howard Tilem

If you are questioned in relation to a criminal matter in New York, there are important rights you have under the law. Oftentimes, however, the reality is that state actors do not follow the law when interrogating suspects. If you have faced any kind of interrogation and are now being charged with a crime, one tool available to you is filing a motion to suppress. A defendant can file a motion to suppress to ask the trial court to “suppress,” or get rid of, the record of their statements to the officer questioning them. A successful motion to suppress can then have hugely beneficial effects during the rest of a defendant’s criminal proceedings.

In a recent case before the Appellate Division, Second Department, the defendant appealed the denial of his motion to suppress statements he had given to an officer in connection to several burglaries. While the court ended up denying the defendant’s appeal, the order offers several interesting circumstances that can be grounds for a successful motion to suppress.

The Questioning Officer’s Obligations During Interrogation

When an officer questions a suspect, who is in police custody, regarding a criminal matter, the officer must give that suspect his Miranda warnings – that is, the officer must clearly articulate that the suspect has the right to remain silent and has the right to an attorney. If the suspect waives these rights, he must do so knowingly, and he must understand what he is giving up. If a suspect is held for multiple days or multiple rounds of questioning, the officer has a responsibility to reread the Miranda warnings at reasonable intervals.

New York Court Reaches Pro-Defendant Decision in Narcotics-Detection Dog Case, Ruling that Sniffing Does Indeed Constitute a Search

January 9, 2024 | Tilem & Associates

In a recent drug case in New York, the Court of Appeals, New York’s highest Court held that using a narcotics-detection dog to sniff a criminal suspect’s body is defined as a “search.” Before this case, New York case law was unclear about whether this specific action constituted a search, which is relevant because any “search” by a government official automatically triggers individual protections under the U.S. Constitution’s Fourth Amendment. By ruling that the narcotics-detection dog’s sniffing is a search under the law, the court opened up more defendants and suspects to important protections under this Amendment.

Facts of the Case

According to the opinion, officers on patrol saw what they believed to be a drug transaction one evening in a parking lot. The officers followed one of the individuals in his car when he left the parking lot, later stopping him for a traffic violation. The officers then requested that the suspect consent to a search of his vehicle. When the suspect declined, the officers brought out their canine to sniff for drugs both around the vehicle and on the defendant’s person.

The dog involved in the search alerted on three different occasions during the interaction. The suspect began to run away, and the officers chased him, caught him, and eventually found a plastic bag with 76 glassine envelopes of heroin. The suspect was charged with criminal possession of drugs, and he then filed a motion to suppress the evidence of the drugs.

New York Criminal Case Highlights Danger of Providing Inconsistent Statements to Police Officers

December 24, 2023 | Peter Howard Tilem

In a recent criminal case before the New York Court of Appeals, New York’s highest Court, the defendant appealed a conviction that he argued was based on an officer’s unlawful search of his vehicle. In the opinion, the court highlighted the defendant’s inconsistent statements to the police officer that searched his car, which ultimately gave the officer reasonable grounds to search the vehicle. Given these inconsistent statements, decided the court, the defendant’s appeal would ultimately be denied.

Facts of the Case

According to the opinion, an officer on patrol pulled the defendant over one evening through a routine traffic stop. The officer approached the defendant and began speaking with him through the open driver’s side window. At first glance, the officer noticed that the defendant was sitting in a twisted position, and it appeared as if he was trying to hide one side of his body from the officer.

The officer asked a couple of questions, at one point inquiring as to where the defendant was heading. When the defendant then gave inconsistent answers about where he was driving, the officer asked if he could search the defendant’s car. While the opinion did not specify what the officer found in the vehicle, it was certainly enough for the State to criminally charge the defendant. He filed a motion to suppress the incriminating evidence, which the lower court denied.