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

New York’s “Knock and Announce” Rule

February 10, 2019 | Tilem & Associates

As a general rule, police officers cannot enter a home without a warrant. While exceptions do exist, they are somewhat rare and are better left for another blog post. Once a police officer obtains a search or arrest warrant, the officer must comply with all procedural guidelines governing the execution of warrants. If officers disobey these guidelines, any evidence seized as a result of the search or arrest may be deemed inadmissible by the court. In addition, a defendant can challenge the issuance of the search warrant in certain circumstances.

One issue that frequently comes up is when police officers can forcefully enter a home to execute a search or arrest warrant. Generally speaking, if a valid warrant is issued, officers may approach the house named in the warrant and enter that home. However, under New York law, a police officer must first knock, announce their presence as police, and give the occupant an opportunity to answer before entering forcefully. This is known as the “knock and announce rule.”

New York Laws sections 690.50 (search warrants) and 120.80 (arrest warrants) provide for the specific procedures that must be followed when executing a warrant. Both statutes require an officer serving a warrant knock and announce their presence, and both statutes also contain exceptions when an officer is permitted to forcefully enter a home without first complying with the knock-and-announce rule.

How Reasonable Must “Reasonable Suspicion” Be For a New York Police Officer to Stop and Search Someone?

December 28, 2018 | Tilem & Associates

A police officer cannot stop a pedestrian or motorist for just any reason. New York criminal law requires that an officer possesses reasonable suspicion before initiating a pedestrian stop or motor-vehicle stop. Specifically, the officer must have a reasonable suspicion that “a crime has been, is being, or is about to be committed.” An officer’s reasonable suspicion cannot rest on a “hunch,” and must be supported by articulable facts.

In a recent New York gun crime case, a state appellate court issued an opinion discussing the concept of reasonable suspicion and whether the officer that arrested the defendant for a gun while on a public bus possessed such suspicion when he asked the defendant if he had a gun. Ultimately, the court concluded that the officer did possess a reasonable suspicion and affirmed the denial of the defendant’s motion to suppress.

The Facts

According to the court’s opinion, police officers responded to a call for a shooting. Upon arrival, police located a gun-shot victim, who described the alleged shooter as a male wearing all black clothing, including a black hoodie. The victim also told the officers that the alleged shooter got on a bus at a nearby stop.

New York Court Suppresses Gun Found in Defendant’s Vehicle Based on Invalid Citizen’s Arrest Conducted by U.S. Customs Agent

December 4, 2018 | Tilem & Associates

A New York state appellate court issued a written opinion in a New York gun case presenting an interesting issue. Specifically, the case requires the court to determine if the defendant’s arrest was illegal because a U.S. Customs agent initiated a traffic stop outside of his jurisdiction and without authority to conduct the stop.

The Facts of the Case

According to the court’s opinion, a U.S. Customs agent was traveling on the highway in an unmarked truck when he observed the defendant driving dangerously. After the agent unsuccessfully tried to reach police through the radio in his vehicle, he called 911. As the agent was on hold with 911, the defendant’s vehicle exited the highway.

The agent continued to follow the defendant and eventually engaged his vehicle’s emergency overhead lights to stop the defendant. The defendant stopped, and the agent waited for on-duty officers to arrive, at which point the agent was sent home. During a search of the defendant’s car, a gun was found. The defendant was charged with criminal possession of a firearm.

New York Court Determines Officer Lacked Reasonable Suspicion to Stop Motorist, Suppressing Breath-Alcohol Test Results

November 27, 2018 | Tilem & Associates

Recently, a New York court issued a written opinion in a New York DWI case granting the defendant’s motion to suppress the results of the field sobriety tests administered by the arresting officer. The court also granted the defendant’s motion to suppress the results of the chemical testing that was performed on the defendant’s breath.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by a police officer after the officer believed he had witnessed a traffic violation. Evidently, the officer was about 300 feet behind the defendant’s vehicle with another car between them when the officer saw the defendant’s car swerve within its lane. The officer testified that the swerving lasted for a few seconds. At one point, the defendant’s car briefly crossed the fog line and then returned to its lane.

The officer explained that after he pulled the defendant’s vehicle over, he noticed that the defendant smelled of alcohol. A field sobriety test was administered, and the defendant was arrested and taken to the station for a breath-alcohol test. The defendant was later charged with two counts of DUI and filed a motion to suppress the field sobriety and chemical test results.

New York Court Denies Defendant’s Motion to Suppress a Gun Found in the Trunk of the Car He Was Driving

November 22, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun possession case discussing two important concepts that frequently come up in any case involving a possessory offense, including New York drug crimes. Ultimately, the court concluded that the police officers acted appropriately and it denied the defendant’s motion to suppress a gun that was found in the trunk of his car.

The Facts of the Case

The defendant was arrested and charged with criminal possession of a firearm after police officers discovered a handgun in the trunk of a car the defendant was driving. According to the court’s written opinion, the police officers claimed that they initially approached the vehicle to request information from another man whose entire upper body was inside the trunk. As the officers approached the car, they noticed a gun in the trunk in plain view. The officers seized the weapon and arrested the defendant.

The defendant filed a motion to suppress the gun, arguing that the police were not justified in their approach of the vehicle and anything stemming from that illegal approach should be suppressed. The trial court denied the defendant’s motion to suppress and the defendant appealed.

New York Court Finds Police Had No Probable Cause to Arrest Defendant after Finding Ammo Magazines in His Pocket

November 16, 2018 | Tilem & Associates

As we have discussed many times, experienced criminal defense lawyers know, that seeking suppression of evidence can often be the best defense to a crime charging possession (of drugs, guns or other illegal items). Recently, a state appellate court issued a written opinion in a New York gun possession case. The case required the court to determine if the trial court properly granted the defendant’s motion to suppress. Ultimately, the court concluded that the police officers lacked probable cause to arrest the defendant, and affirmed the lower court’s decision to grant the defendant’s motion to suppress. In this case, both the trial Court and the Appellate Court concluded that the police lacked probable cause to arrest someone who was found to be in possession of a handgun magazine. It is important to note however that had this case been decided in New York City, where the administrative code of the City of New York makes it a crime to possess handgun magazines, the results may have been different.

The Facts of the Case

According to the court’s opinion, police received a call reporting a dispute at a local bar that possibly involved a gun. Upon arrival, police spoke to the bartender who told them that the defendant was the one suspected of having a gun. Police patted the defendant down, discovering that he had two ammunition clips in his pockets.

Police then arrested the defendant. A post-arrest search revealed no weapons, but the defendant’s car – which was parked across the street – was towed and impounded. The defendant was read his Miranda rights and consented to a search of the vehicle. While searching the trunk of the car, police recovered a stolen .45 caliber handgun.

New York Court Determines Warrantless Search of Motorhome Was Illegal

September 3, 2018 | Tilem & Associates

A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.

New York Court Discusses the Emergency Exception to the Warrant Requirement

August 27, 2018 | Tilem & Associates

Recently, a state court issued a written opinion in a case involving allegations that the defendant violated a New York order of protection. The case required the court to determine if the defendant was correct in asserting that the police entered her home without a warrant and without sufficient cause to do so. Ultimately, the court concluded that the police acted improperly, and thus any evidence obtained as a result should have been suppressed.

The Facts of the Case

The defendant had been previously placed on probation based on an unrelated matter. As a condition of that probation, the court issued an order of protection, requiring the defendant to stay away from a certain individual.

One day, police received a call from the downstairs neighbor of the defendant, stating that she heard noises in the apartment. This concerned her because she believed the defendant to have been incarcerated. Police verified that the defendant had previously been released from jail, but went to the apartment anyhow.