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As DWI lawyers, we have to be concerned about the numerous potential collateral consequences to a DWI arrest.  The day non-U.S. citizens receive their Permanent Resident Card—more popularly known as a green card—is probably one they will never forget.  Being green card holders will finally allow them to enjoy benefits they’ve never had before, including sponsoring immediate family members to stay in the U.S. with them and traveling more smoothly in and out of the country.  However, green card holders can jeopardize their lawful permanent resident (LPR) status if they commit what’s referred to as “crimes of moral turpitude,” which can include Driving While Intoxicated or DWI.

For an American citizen, the consequences of a DWI conviction can be harsh enough. The potential for jail time, probation, heavy fines, driver’s license suspension or revocation, and ignition interlock installation are among the penalties that await DUI offenders.  For a green card holder, the outcome of a DWI can be so much worse.

Possible Deportation

Earlier this year, a state appellate court issued a written opinion in a New York DWI case involving a defendant’s motion to suppress evidence that was obtained during what she claimed was an illegal arrest. Ultimately, the court found that the officer did not conduct the field sobriety tests correctly, but still had enough evidence to arrest the defendant for driving while intoxicated. Thus, the court reversed the lower court’s decision to grant the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, a police officer observed the defendant driving erratically. Among other things, the officer claimed to see the defendant driving 20 to 25 miles per hour in a 45 mile-per-hour zone. After a few moments, the officer turned on his dashcam, pulled over the defendant, and administered field sobriety tests. None of the defendant’s erratic driving was caught on the video footage.

The officer conducted field sobriety tests, determining that the defendant was intoxicated, and arrested her for DWI. The defendant then made an inculpatory statement and agreed to a breath test, which indicated she was intoxicated.

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Earlier this year, a state appellate court issued an opinion in a New York gun case involving what the prosecution called a valid inventory search. However, the court rejected the prosecution’s characterization of the police officers’ search of the defendant’s vehicle as an inventory search, suppressing the evidence found in the defendant’s car.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by police for an unrelated violation. As the defendant pulled over, he parked his car on the corner. There was no indication that he illegally parked his car or that there was a limit on how long the defendant’s car was allowed to remain parked at the location.

However, the arresting officers decided to transport the defendant’s vehicle to the police station because they believed it was used in the commission of a crime. When the vehicle arrived at the police station, officers searched the car, finding a gun. The defendant was charged with criminal possession of a weapon in the second degree.

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Recently, the United States Supreme Court heard oral argument in a case, important to New York Criminal defense lawyers, requiring the court to determine if the “community caretaking” function of police officers allows them to enter a private resident’s home. While the Court has not yet issued an opinion in the case, one is expected by the middle of the year. When the Court ultimately decides the case, it could significantly impact New York search and seizure laws.

What Is the Community Caretaking Function?

Under the state and federal constitutions, police officers are generally required to obtain a warrant before searching a person or their belongings, including their cars and homes. However, there are exceptions to the warrant requirement. Most notably, police officers can conduct limited searches after making a lawful arrest.

However, there are also other exceptions. For example, say a police officer sees someone pulled off the side of the road in their car. As the officer drives by, the person is slumped over the wheel. Fearing that the person may have suffered some kind of medical event, the officer stops and knocks on their window. As it turns out, the driver was intoxicated. In this case, although the officer may not have had probable cause to stop the driver, courts would likely consider the traffic stop and subsequent arrest of the defendant lawful because the officer was not investigating a potential crime.

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In many New York criminal cases, law enforcement officers need to search for evidence. The United States Constitution protects individuals from “unreasonable searches and seizures.” As such, in most cases, law enforcement must obtain a search warrant based on probable cause before beginning their search. Despite these protections, the law provides police with significant discretionary power when investigating a criminal incident. Criminal defendants may successfully challenge a search if they can establish that police engaged in the search without a valid warrant or probable cause. However, exceptions to the search warrant rule apply in various situations, such as when the search or seizure is incident to a valid arrest.

For example, recently, the Court of Appeals affirmed a lower court’s ruling denying a New York defendant’s motion to suppress. The case arose when law enforcement obtained a search warrant to search the defendant’s home. During the search, police recovered several items, including a handgun and ammunition. The defendant filed a motion to suppress the evidence, claiming that the warrant was invalid.

In New York, if an officer wants to obtain a search warrant, they must present the basis for the probable cause of their search to a judge. In most cases, a judge will issue a warrant if the probable cause exhibits a reasonable basis for believing that evidence from a crime is in the location they want to search. Officers must submit a sworn statement and describe the location with particularity. Judges typically consider the totality of the circumstances before issuing a search warrant.

As New York’s Premier Second Amendment lawyers we eagerly awaited President Joe Biden’s Executive Orders today so we can analyze its effect on our clients.  In reality, today’s announcement had no effect on our clients and really had no effect on any gun owners.  The only people affected seem to be the people who write regulations for the ATF.

To be sure, there were no surprises in the announcement today except the for lack of details after over 2 months in office.  For example, one of the centerpieces of today’s announcement was that the ATF will have 60 days to propose a rule about pistol braces and when such devices will turn a pistol into a short barreled rifle that would be regulated under the National Firearms Act.  However, as we wrote in our December blog, such a rule was already proposed as recently as December, less than 4 months ago and quickly withdrawn under pressure from Congress.  Surely, the ATF could have had something written by now having already written a regulation on the same topic just three and a half months ago.

The other centerpiece of today’s announcement was a direction that the ATF propose rules regarding “ghost guns” within 30 days.  The announcement cites, without any evidence, the proliferation of “ghost guns” that are supposedly being completed by criminals to use in crimes.  It is hard to imagine what such a regulation would look like or how the ATF would regulate an unfinished block of aluminum or polymer.  Will a block of aluminum be considered a firearm if it is 70% complete, 60% complete or 40%?  It is also hard to imagine why after more than 2 months in office no details about any regulation were given or why it would take 30 more days to write such a proposed regulation.

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine if the officers’ search of the defendant’s car, which was parked outside his home, was within the scope of the search warrant. Ultimately, the court determined that the defendant’s car was not covered by the search warrant and ordered the suppression of all evidence obtained from the vehicle.

The Facts of the Case

According to the court’s opinion, police officers were investigating the defendant for selling heroin from his home. Officers watched on several occasions as the defendant and another man would walk out of the defendant’s home, meet up with someone who pulled up in a car, and exchange items for money. The officers also arranged a controlled buy.

Taking the information they gathered during their investigation, the officers obtained a search warrant. Specifically, the warrant affidavit claimed that there was probable cause to search the defendant and his home. However, when officers arrived to execute the warrant, they also searched his car, finding a loaded gun and other drug-related evidence.

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New York’s premier second amendment law firm announced that a Massachusetts licensed gun owner who was


Mass has very strict gun laws

arrested for bringing his licensed pistol into Manhattan won a five-year battle to clear his name yesterday after the Appellate Division ruled that the police violated the gun owners Fourth Amendment rights after they stopped a vehicle that he was a passenger in for allegedly running a red light.  Tilem & Associates, PC,  won the decision suppressing the gun and ordering the indictment dismissed after they appealed the denial of the suppression motion and ultimate plea on behalf of the licensed gun owner whose first name is Sandley.  You can read the appellate court decision here.

Earlier this month, a state appellate court issued an opinion in a New York firearms case, reversing the lower court’s decision to grant the defendant’s motion to suppress. The case required the court to determine whether the police officers’ actions leading to the defendant’s tossing of the gun were justified.

The Facts of the Case

According to the appellate court’s recitation of the fact, police officers received a call describing a group of men, two of whom had “guns out.” The 911 caller told the dispatcher one of the men had on a tan-and-black coat, and another a black coat.

Officers responded to the scene to find two groups of men walking in opposite directions. One officer stopped a man in a tan-and-black coat, searched him, and found nothing. Officers then located the defendant, who was wearing a black coat. One officer followed the defendant, relaying his location over police radio.

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An appellate court recently issued an opinion in a defendant’s appeal of his New York murder conviction. At the core of the defendant’s appeal is whether the officers who took him into custody had probable cause to arrest him. Before the police officers took the defendant into custody, they interviewed several witnesses, including two accomplices. The witnesses stated that the defendant killed the victim. One of the witnesses stated that they overheard a call the defendant made to another person during the murder. The witness recounted that during the call, the defendant stated that he was killing the victim by strangulation. The witness further explained that he overheard the defendant state that the victim was bleeding but not dying. The defendant motioned to suppress the informant’s statements, and the court conducted a combined Huntley and Dunaway hearing.

In New York, defendants may argue various motions when they believe that police did not abide by the proper procedures to get evidence in the case.  Among the most common examples of motion to suppress hearings are Huntley and Dunaway hearings. Huntley hearings are proceedings to determine the admissibility of a defendant’s statement. During these proceedings, a criminal defendant’s attorney may argue that the defendant’s statements were made against their will due to pressure, threats, trickery, or without Miranda warnings. A Dunaway hearing is a motion to suppress evidence that authorities obtained from an illegal arrest or detention.

Arrests and detentions can stem from many different situations; in some cases, an officer witnesses a crime, and in other situations, someone reports the incident. The reporting individual may be a citizen informant, an anonymous tipster or an accomplice. Citizen informants are those that provide information and their identity, which constitutes the basis for probable cause. An anonymous tipster provides information about a crime but not information about themselves. Courts generally favor testimony from a citizen informant compared to that of an anonymous tipster. Anonymous informant’s tips often need substantiation and are often regarded as less reliable.  Tips from accomplices who are informing to curry favor with the prosecutor may similarly require corroboration.

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