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While state and federal law restrict a police officer’s ability to conduct a warrantless search, courts allow officers to perform a limited search in certain situations. One of these situations involves after an officer makes a lawful arrest. Thus, it is common after a police officer arrests someone that the officer searches the person to make sure that they are not armed. However, here too, there are limitations on the permissible scope of a search. In a recent opinion, a New York appellate court issued an opinion discussing the allowable scope of a search incident to a valid arrest.

The court’s opinion is brief; however, the case arose after the defendant was arrested on 17 counts of criminal possession of a forged instrument in the first degree. While the facts surrounding the defendant’s arrest were not provided, the defendant did not contest their arrest. Instead, the defendant argued that the arresting officer exceeded the scope of a search incident to her arrest.

Apparently, the officer found an envelope in the defendant’s pocket at the time of her arrest. The officer then “peeked” inside the envelope to find evidence that the prosecution intended to use against her at trial. The testimony was not clear whether the envelope was partially open. However, to the court, it didn’t matter.

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A New York appellate court recently issued a decision in a criminal accused’s appeal of his kidnapping conviction. The record indicates the accused and his co-defendant allegedly kidnapped the complainant. The victim’s friends received various ransom calls, one of the friends called the police claiming that they recognized the voice as the defendant. Upon arriving at the defendant’s residence, law enforcement found the victim tied up in the garage. Police knocked on the front doors and the door leading to the second-floor apartment when the cousin identified himself as a police officer and confirmed other people were in the apartment. The police subsequently seized the phones that were used to make the ransom calls.

Based on a physical description, police stopped and questioned the accused; after identifying himself, police arrested him. The police then executed a search warrant and recovered the victim’s credit card and the defendant’s benefits card. On a motion, the defendant moved to suppress his statement to police, controvert the search warrant and suppress the physical evidence recovered from the home.

Warrantless searches are lawful if police have obtained voluntary consent from a party who possesses authority and control over the property or premises at issue. A party can establish consent by words and conduct. In this case, the court found that the People met their burden by establishing that the defendant’s cousin had requisite control over the home and provided police with authority to enter the premises. The People also cited the cousin’s testimony where he stated that he intended to help the police. In line with that finding, the court found that the cell phone seizure was lawful because it was in plain view.

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What happens when a New York defendant tosses evidence as he or she is fleeing from the police? The answer depends on the police action leading up to the stop.

Recently, a state appellate court issued a written opinion in a New York drug possession case involving the concept of forced abandonment. Under the state and federal constitutions, police officers must have probable cause or reasonable suspicion to justify a search of a person or their belongings. In situations where a defendant discards an item, that is typically not seen as a “search.” Thus, situations that involve a defendant who voluntarily tosses items may not implicate their constitutional protections, because no “search” was conducted.

However, if a defendant discards an item in response to a police officer’s illegal attempt to stop them, the object may be suppressible under the theory of forced abandonment. Forced abandonment is a legal term used to describe a situation where a defendant discards evidence in response to illegal police activity, often during a police foot pursuit. The idea behind the doctrine is that police officers “seize” a defendant when they initiate the stop. If officers lacked probable cause or reasonable suspicion at that point, the evidence is suppressible—regardless of whether the defendant keeps it on them or tosses it away.

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Filing an appeal is one of the most critical steps in a New York criminal defendant’s attempt to avoid serious penalties and incarceration. In most instances, an appeal follows a trial and sentencing. New York appeals generally involve a defendant making a pleading to the appellate court to issue a motion for retrial, resentencing, or overturning a ruling. New York criminal defendants do not possess the same rights during appeals as they do at trial. As such, criminal defendants should consult with an experienced New York criminal defense attorney to develop the best course of action.

In most cases, New York criminal defendants appeal their cases based on more than one issue. Appeals may stem from improper police investigations, incorrect legal decisions, or other constitutional claims. Multiple appeal issues often present complicated statutory and procedural issues. In these cases, courts may wholly affirm the trial court’s ruling, partially affirm, or entirely overturn the lower court’s ruling.

For instance, a New York criminal defendant recently appealed a judgment from a trial court where he was convicted of two counts of murder in the second degree, two counts of attempted murder in the second degree, three counts of robbery in the first degree, two counts of assault in the first degree, attempted assault, and seven counts of criminal possession of a weapon in the second degree. The case arose from incidents over a two-month span where two men were killed, and three others suffered injuries. The court affirmed the majority of the trial court’s ruling but partially agreed with the defendant’s assertions regarding the admissibility of his statements to the police.

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Earlier this month, a state appellate court issued an opinion in a New York gun case discussing the concept of an inventory search. An inventory search is a type of search, usually conducted by police officers or tow-truck drivers, that is performed to determine what is in a vehicle before the searching party takes control of the vehicle. The purpose of an inventory search is to identify what is inside a vehicle, to limit the possible liability should a dispute later arise about something in the vehicle coming up missing. Inventory searches are only permissible when conducted for a non-investigatory purpose.

The Facts of the Case

The court’s recitation of the facts giving rise to the case was brief. However, it appears that the defendant was arrested after he had parked his car “on the corner.” The court’s opinion does not explain what the initial arrest was for. However, after the defendant was arrested, police officers decided to impound the defendant’s vehicle. Before impounding the vehicle, police searched the car, finding a weapon.

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Under the state and federal constitutions, individuals have a right to be free from unreasonable searches and seizures. Generally, this requires that police officers obtain a warrant before searching a person’s home. However, just because the police get a warrant does not mean that the warrant itself cannot be challenged.

To be valid, a search warrant must list with “particularity” the places to be searched. This requirement ensures that a search conducted pursuant to a valid warrant remains reasonable. In a recent New York gun case, the court discussed the particularity requirement.

The Facts of the Case

According to the court’s opinion, police officers obtained a warrant allowing them to search a particular residence. The warrant contained the correct street address. However, when police officers arrived to execute the warrant, they were told that the unit is actually three separate living spaces. The defendant apparently lived on the third floor, his mother on the first, and an unrelated party on the second floor.

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Lawmakers draft criminal statutes very intentionally, and every word in a law should have meaning. Thus, when courts are tasked with determining whether certain conduct falls within the scope of a criminal law, the first place the court looks is to the language contained in the statute itself.

In some cases, reading a statute and coming to a conclusion is not a difficult task. However, other situations present circumstances that the drafters of the law may not have thought of when they wrote the law. The court, then, must decide what the legislature’s intention was, and whether the facts in front of the court fit within the statute.

A good example of this is a recent New York theft case, in which the defendant was charged with grand larceny in the fourth degree. According to the court’s opinion, the defendant was a personal assistant to the alleged victim. As the woman’s personal assistant, the defendant had access to her corporate credit card information and her Uber account information.

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State and federal constitutional protections prevent police officers from conducting unreasonable searches and seizures. In most New York gun cases, an officer finds a gun on a person or in their car. However, in some cases, police start to chase a defendant, and they toss the gun during the chase. In these cases, whether the gun is admissible at trial depends on if the police officers were justified in their pursuit of the defendant.

A recent case decided by a New York appellate court illustrates this concept. According to the court’s opinion, an anonymous person called 911 to report a group of men, armed with guns. The caller gave police a description of five to seven black men, one of which had a coat that was black and tan, and another with a black coat.

One officer came to the scene to find a man wearing a black-and-tan coat. The officer asked the man if he would consent to a pat-down, which he did, and the officer didn’t find anything. Another officer saw the defendant, wearing a black coat. This officer followed the defendant, providing his whereabouts to other officers over police radio.

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It’s common knowledge that you can be prosecuted for a New York gun crime if police officers find a gun on you. But what about if the police find a gun in the car you are riding in? Or if they find a gun in your home or hotel room? In these situations, the doctrine of constructive possession comes into play.

Constructive possession is a legal concept by which a court can find that a person had “control” over an item, even though the object was not in that person’s physical possession at the time. In a recent New York gun case, the court was tasked with determining whether the defendant could be found guilty of possession although the gun was not found on his person.

The Facts of the Case

According to the court’s opinion, police officers got a call that a person was bleeding in front of a residence. When police officers got to the scene, they saw the defendant outside. He was bleeding from the neck. The defendant told police that he was inside his home, when he was shot through a window.

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Earlier this year, a state appellate court issued an opinion in a New York gun case, affirming the lower court’s decision to suppress a weapon found in the defendant’s vehicle that was parked outside his home. The case required the court to determine if the officers’ search of the defendant’s car fell outside the scope of the search warrant police officers obtained after allegedly observing him sell heroin from his home.

The Facts of the Case

According to the court’s opinion, police officers conducted a stake-out in front of the defendant’s home. During the course of their investigation, officers watched on several occasions as the defendant or one of his associates would leave the home and deliver an item to someone standing in the street in exchange for money. Police officers also arranged to make several controlled buys.

Detectives obtained a search warrant. The affidavit in support of the warrant requested the officers be allowed to search the defendant and “the entire premises.” Police officers executed the search warrant and found a gun inside the home. However, someone other than the defendant was charged with the gun found inside the home.

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