Articles Posted in Search and Seizure

In a recent opinion from a New York court involving drug possession, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of criminal possession of a controlled substance in the fourth degree. He filed a motion to suppress evidence, arguing that the officers who found street-level PCP in his vehicle did not have probable cause to search his car. The appellate court denied the appeal because it found that the officers did, in fact, have enough reason to search the car after having smelled the PCP from outside the vehicle.

The Case

As stated in the opinion, officers in Syracuse were patrolling a high-crime area in August 2017 when they noticed a car that was parked illegally. The officers walked up to the vehicle and saw three occupants – the defendant in the driver’s seat and two other passengers. As soon as the officers approached the car, the officers smelled a “really strong chemical odor” that they recognized as PCP.

Recently, a state appellate court issued an opinion in a New York drug case discussing the concept of an inventory search. An inventory search is performed by police officers to properly determine the contents of the item searched. Inventory searches should not be used for the purpose of discovering evidence of a crime, but instead may only be used for a non-investigatory purpose.

The Facts of the Case

According to the court’s opinion, law enforcement personnel were made aware that the defendant would be driving through a certain location one night to transport drugs. New York State Troopers were directed to stop and search the particular vehicle if they saw it, and that night, the State Troopers stopped the vehicle on the highway, arrested the defendant and her co-defendant, and recovered a large quantity of cocaine from the vehicle. The State Troopers did not have a warrant to stop and search the vehicle. The defendant was convicted of criminal possession of a controlled substance and subsequently filed a motion to suppress the cocaine that had been recovered from her vehicle. The lower court denied the motion and the defendant appealed.

On appeal, the defendant argued that the county court should have granted the motion to suppress the physical evidence recovered from the vehicle because the State failed to sustain their burden of proof that sufficiently established a valid reason for stopping the vehicle or a valid reason for searching it. The appellate court agreed, holding that the prosecution did not meet the burden of proof required to rely on fellow officer exception to justify the vehicle stop. At a suppression hearing, the prosecution bears the burden of proving that the officer who imparted information had probable cause to act and thus had either directly participated in the transaction or observed it. Here, an unidentified member of the county drug task force advised a trooper about the vehicle, and it was passed on to other troopers to conduct the stop but there was no information at the suppression hearing indicating how the county drug task force member learned there were drugs in the vehicle.

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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.

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.

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.

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.

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.