Search and Seizure Category Archives — Page 5 of 8 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

What Should I Do If Police Come To My Door

November 18, 2020 | Peter Howard Tilem

With Corona Virus (Covid-19) restrictions increasing just a week before Thanksgiving and the Governor of New York dictating how many people may attend a Thanksgiving Dinner at your house it is worth reviewing what rights you have if police unexpectedly show up at your door. This situation could arise for a variety of reasons including a crime committed nearby having nothing to do with you and the police just wanting to canvass the area for witnesses and/or cameras or a noise complaint or some other complaint called in by your neighbors. Often police may accompany a Child Protective Services (CPS) worker responding to a child abuse or neglect report or the police may sometimes knock and ask questions about a missing child, or adult. In any case, it is important to understand your rights.

Firstly, Courts recognize the right of the police officers to approach your door and knock or ring the door bell. Secondly, it is important to recognize that police officers are people, just like anyone else. There job is difficult and important and they should be treated with courtesy and respect at all times. It is also essential that you not give a police officer or anyone else that comes to your door any reason to fear for their safety by making any sudden movements or answering the door with a visible weapon.

There is absolutely no requirement that you answer the door if the police knock. Just as if a police officer were to approach you on the street you have no obligation to speak to the officer and no obligation to answer the door. The police officer may not enter your home except with your consent, with a search warrant, arrest warrant or in some very narrow exceptions to the warrant requirement. Rarely, will police officers have a warrant and then casually knock on the door. If they have a warrant they will either break down the door without knocking or announce that they are the police and that they have a warrant and that they will breakdown the door if you don’t open the door immediately.

Court Finds Officers Lacked Probable Cause to Stop Defendant in Recent New York Drug Dealing Case

November 2, 2020 | Tilem & Associates

Earlier this month, a state appellate our released an opinion in a New York drug case in which the defendant was alleged to have sold cocaine. The defendant claimed that the evidence obtained as a result of his arrest must be suppressed, because it was obtained in violation of his constitutional rights. Ultimately, the court agreed that the officers lacked justification to stop him, ordering a new trial.

The Facts of the Case

According to the court’s opinion, police officers were conducting an undercover drug surveillance. Officers sat in a car as they watched the defendant interact with another person. Although the officers were looking at the defendant’s back, and could not see what, if anything, was exchanged, they believed it to be a drug transaction.

The officers called in back-up to stop both the defendant, and the alleged buyer. Officers pulled the defendant over and immediately took him out of the car, and placed him in handcuffs. The officers then questioned the defendant, who admitted to possessing cocaine. The officers then retrieved cocaine from his pocket. Other officers stopped the alleged buyer and returned her to the scene, where she identified the defendant as the person who sold her the cocaine.

New York Court Weighs in On the Legality of Drunk Driving Checkpoints

October 20, 2020 | Peter Howard Tilem

As New York DWI lawyers, we are following a recent state appellate court opinion on a New York DWI case discussing the procedures law enforcement must use to legally conduct a DWI checkpoint. Ultimately, the court concluded that the checkpoint used by law enforcement leading to the defendant’s arrest was legal, and affirmed the defendant’s conviction.

Drunk driving checkpoints are used throughout New York to catch intoxicated drivers. However, historically, these checkpoints have been used to target specific groups of motorists. Thus, courts have held that all DWI checkpoints must comply with certain guidelines; otherwise, they are unconstitutional. It is important for attorneys that handle New York DWI’s to know the specific requirements for operating a constitutional checkpoint when conducting suppression hearings.

The Facts of the Case

The relevant facts in the case are straightforward: the defendant was stopped at a sobriety checkpoint and eventually arrested for driving while intoxicated. Evidently, there were signs immediately before the checkpoint entrance, indicating the presence of law enforcement. All law enforcement were in marked cars with the vehicle’s emergency lights on, and all officers were wearing their uniforms. Additionally, the officers operating the checkpoint would stop every car that passed by. However, officers would not ask motorists for their license and proof of insurance, as not to impede the flow of traffic any more than necessary.

What Is a New York Eavesdropping Warrant?

October 14, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York drug case, affirming the defendant’s conviction. The court’s opinion, although brief, discusses what has come to be known as an eavesdropping warrant.

The Fourth Amendment to the United States Constitution protects all individuals against unreasonable searches and seizures. Over the years, courts have generally held that, to be “reasonable,” a search must be supported by probable cause. Most often, this requires law enforcement to obtain a warrant to conduct a search. Of course, there are certain situations when a warrant is not needed, such as if the officer observes illegal conduct, or the search is conducted incident to a lawful arrest.

Absent an exception to the warrant requirement, law enforcement must obtain a warrant to search a person, their home, their car, or any other private area. Often, law enforcement officers want to search a physical place; however, if they want to search a suspect’s electronic communications, different rules apply.

New York Court Discusses Defendant’s Motion to Suppress Based on Misidentification by Law Enforcement

September 19, 2020 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York gun possession case discussing the defendant’s claim that officers searched him without possessing the necessary probable cause or reasonable suspicion. After reviewing the evidence and applying the relevant law, the appellate court agreed, finding that the defendant’s motion to suppress should have been granted. As a result, the indictment against the defendant was dismissed.

The Facts of the Case

According to the court’s opinion, police officers saw the defendant standing on the side of the road and mistook him for his brother, whom they knew had a warrant out for his arrest. As the officers approached the defendant, he fled on foot. Eventually, the officers caught up to the defendant and, upon searching him, found a loaded gun. Subsequently, the defendant made a statement admitting to possessing the gun.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to approach him. The defendant asked the officers about the existence of the warrants and whether the warrants were still valid. However, the defendant did not specifically ask to see the warrants and the prosecution did not produce them. The trial court denied the motion, and the defendant was later convicted.

New York Court Condones Stop of Defendant’s Vehicle Based on Tip from Confidential Informant

September 13, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued a written opinion in a New York drug possession case involving the defendant’s claim that a stop and search of her vehicle violated her constitutional rights. Ultimately, however, the court determined that the search was supported by reasonable suspicion, rejecting the defendant’s arguments that the officers conducting the search lacked reasonable suspicion.

The Facts of the Case

According to the court’s opinion, the defendant was on parole for an unrelated offense. Evidently, a confidential informant provided information to the defendant’s parole officer that the defendant was selling cocaine. The parole officer believed the informant to be reliable, because the informant had given the officer accurate information three other times.

Specifically, the informant told the officer that the defendant would be returning in a Nissan Altima with Connecticut license plates. The parole officer requested that local law enforcement stop the defendant’s vehicle. Based on the parole officer’s request, police stopped the defendant’s car (which matched the description given by the informant) and found cocaine inside the vehicle.

New York Court Rejects Defendant’s Motion to Suppress in Recent Gun Case

September 7, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York gun possession case, requiring the court to review the lower court’s decision denying the defendant’s motion to suppress. After reviewing the facts and applicable legal principles, the court agreed with the court below, affirming the denial of the defendant’s motion to suppress a firearm that he discarded while being chased by police officers.

The Facts of the Case

According to the court’s opinion, a confidential informant told his parole officer that “two individuals would be in a specified area in a silver or gray Pontiac and would have a firearm in the vehicle.” Police officers traveled to the location, where they saw a vehicle matching the description provided by the informant.

While the police officers were following the car, they claim that the driver failed to signal at least 100 feet before making a turn. The officers pulled over the vehicle. The defendant was in the passenger seat. The officers asked the defendant several questions, claiming that he was slow to answer and seemed nervous. The officers asked the defendant out of the vehicle and immediately held his hands behind his back.

New York Court Denies Defendant’s Motion to Suppress Based on Lack of Standing

August 8, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun case, raising the issue of whether the defendant had standing to bring a motion to suppress the physical evidence in the case. Specifically, the defendant intended on suppressing a firearm that was found in a backpack. The lower court denied the defendant’s motion without specifying a basis. On appeal, the court determined it was unable to decide the case without having the benefit of the lower court’s reasoning. The appellate court remanded the case so the lower court could provide its reasoning.

The Facts

According to the court’s opinion, police officers found and searched a backpack that was in the back yard of a vacant house in Queens. Inside the backpack was a gun. The defendant’s godmother lived next door to the vacant house. At the time when the police found the backpack the defendant and seven other people were present in that home. Police officers arrested all seven people. Later, at the police station, the defendant admitted that the backpack and gun belonged to him.

The defendant filed a motion to suppress the gun, as well as his statement, from evidence. The defendant argued that the officers lacked a warrant or probable cause to search the backpack. In response, the prosecution argued that the defendant lacked standing to bring the motion. The court denied the defendant’s motion without providing any reasoning. On appeal, the court sent the case back down to the trial court so that court could clarify its holding.

New York Court Condones Traffic Stop Conducted by Customs and Border Patrol Agent

August 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

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.