Category: Suppression

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The Appellate Division Second Department overturns the Order of the Nassau County Supreme Court (J. Carter) denying the Defendant’s request to suppress evidence and statements. The arrest of the Defendant occurs in Nassau County, Woodmere after the Police receive a call in response to a silent alarm tripped at the Defendant’s parents house, where Defendant also lived. The Police approach the Defendant and asked questions. Police observed that the Defendant was unable to produce a photograph identification and was “acting shifty, very jittery.” After further conversation, Police told the Defendant that they needed to open the door and make sure everyone was okay. Unsuccessfully, the Defendant tried to prevent the police from doing so. The Police observed two hand grenades and a handgun. Is the search legitimate?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (US Const Amend IV; see NY Const, art I, §12). “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core’ stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'” (Florida v. Jardines, _____ US_____, _____, 133 S Ct 1409, 1414, quoting Silverman v. United States, 365 US 505, 511; see United States v. Allen, 813 F3d 76, 77 [2d Cir]). ” [S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional'” (People v. Jenkins, 24 NY3d 62, 64, quoting People v. Knapp, 52 NY2d 689, 694). One of those exceptions is the “emergency doctrine” (People v. Dallas, 8 NY3d 890, 891). Under that doctrine, police officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury” (Brigham City v. Stuart, 547 US 398, 403; see Michigan v. Fisher, 558 US 45, 48; People v. Mitchell, 39 NY2d 173, 177).

In the evaluation of whether a warrantless entry was justified under the “emergency doctrine,” the evidence must establish as a threshold matter that the police had “an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid” (Michigan v. Fisher, 558 US at 47 [internal quotation marks omitted]; see Brigham City v. Stuart, 547 US at 403; People v. Rodriguez, 77 AD3d 280, 287). Under the Fourth Amendment, the officers’ subjective belief is irrelevant: “[a]n action is reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action'” (Brigham City v. Stuart, 547 US at 404, quoting Scott v. United States, 436 US 128, 138; see People v. Scott, 133 AD3d 794, 797; People v. Desmarat, 38 AD3d 913, 915).

The Police were incorrect in their assertions. Although the Police were correct in their assumption, that there was something wrong with the situation/the defendant, the Police cannot assert an emergency where there is none:

When the police have an objectively reasonable ground for believing that there is an emergency, a warrantless entry permitted under the emergency doctrine is not retroactively rendered impermissible because there was, in fact, no emergency (see Michigan v. Fisher, 558 US at 49). So, too, an impermissible entry is not rendered retroactively permissible when the police find evidence of criminality inside (see e.g. People v. Mormon, 100 AD3d at 782-783). Were the law otherwise, seizures themselves, regardless of the circumstances leading up to them, would be all that mattered. In that event, the Fourth Amendment would no longer protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (US Const Amend IV).

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The New York Law Journal reported that “A temporary inspection sticker on a motor vehicle is insufficient justification for a police search, without any other indication of illegal activity, a state appeals court has ruled.”

This case starts out, as one can imagine, when “a sheriff’s deputy stopped a vehicle in the Town of Southport, Chemung County after observing that it had a temporary inspection sticker.” The occupant, the defendant, flees and is later apprehended. Crack is recovered from the vehicle. The Defendant was charged with two drug offenses. A suppression hearing was held where the deputy discussed his practice of stopping cars with a temporary inspection sticker. The Third Department has little problem suppressing the evidence obtained as a result of the illegal stop.  The Court stated that

It is entirely proper to operate a motor vehicle with a temporary inspection sticker under certain circumstances and, as a result, the display of one does not constitute grounds for a traffic stop absent a “specific articulable basis” to believe that illegality is afoot (People v. Bowdoin, 89 AD2d 986, 987 [1982]; see Vehicle and Traffic Law §306 [b]; People v. Perez, 149 AD2d 344, 345 [1989]). The practice of stopping any vehicle with a temporary inspection sticker, without more, represents impermissible “idle curiosity” as to the sticker’s validity rather than the “reasonable suspicion” of illegality needed to effect a traffic stop (People v. Ingle, 36 NY2d 413, 420 [1975]; see People v. Sobotker, 43 NY2d 559, 563-564 [1978]; People v. Simone, 39 NY2d 818, 819 [1976]). Thus, we reverse “County Court’s order [denying] defendant’s motion to suppress all evidence obtained as a result of [the illegal traffic stop] and, pursuant to CPL 470.55 (2), vacate defendant’s guilty plea and restore the action to its prepleading status” (People v. Samuels, 270 AD2d 779, 781 [2000]).

The Court noted that “The deputy candidly admitted that he had no idea whether the sticker was valid when he made the stop, nor did he indicate that the temporary sticker gave him any other reason for suspicion…He instead stated that his ‘general practice’ was to stop any vehicle he encountered with a temporary inspection sticker in order to ‘ensure [that the sticker had] not expired. ”

Traffic Stop Evidence Suppressed – Officer did not have the specific articulable basis to believe that illegality is afoot. The Case is People v. Driscoll, 107588, NYLJ 1202776119375, at *1 (App. Div., 3rd, Decided December 29, 2016).

Need a criminal defense attorney? Call the Law Offices of Cory H. Morris for your New York Criminal Defense needs – 631-450-2515.

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In the People v. Karagoz, 2016 NY Slip Op. 06842 (App. Div. Second Department October 19, 2016), the Second Department reviews whether evidence was properly suppressed, the inquiry focuses on whether the police were correct in approaching the defendant.

The Court reviewed the testimony from the officer – “he observed a Buick in the northbound left turning lane on Oceanside Road; the operator of the Buick appeared to be unconscious behind the wheel. The officer parked his vehicle behind the Buick. Another police vehicle arrived on the scene and parked in front of the Buick. In addition, two ambulances arrived on the scene and were facing south on Oceanside Road blocking southbound traffic. Both police vehicles and the ambulances had their lights on. Traffic could pass through on the northbound side of Oceanside Road; the left northbound turning lane and southbound traffic were blocked.” A short time after, the officer walked back to his vehicle and noticed the Defendant stopped her vehicle behind his in the turning lane. The officer approached the vehicle and asked for the basic stuff: license, registration and insurance card. Upon this inquiry, the officer noted the bloodshot eyes, slurred speech and detected the odor of an alcoholic beverage. The officer approached the Defendant based on his observation that the Defendant’s stop seemed “odd.”

The question in this case is whether the police could approach the Defendant’s vehicle on this basis – that the officer found it odd she was there: more

Miranda warnings come from the seminal Miranda v. Arizona case. We often hear these warnings on television series, such as Cops. The right to remain silent and to speak with an attorney should always be exercised. Here, “Tony Pritchette is charged in a one-count indictment with Hobbs Act robbery under 18 U.S.C. § 1951, in connection with a March 2016 air-rifle robbery of a MetroPCS store in the Bronx.” It is alleged that there were two interrogations, one where the client confessed and one where, subsequently, he was read his rights as documented by the government and gave incriminating statements. The Court delves into an interesting situation, the two-step interrogation, and suppresses the statements obtained in violation of Mr. Pritchette’s 5th Amendment Rights.

The 5th Amendment Right against Self-Incrimination has been cited often, from television series to, here, the Southern District Court of New York, United States District Court: more

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After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. A new trial is ordered because of the prosecutor’s statements regarding DNA evidence. The weight of the evidence was against the defendant. A gun was found and the defendant confessed. It is important to note, irrespective of the reasons for why it was done, that the prosecutor’s statements are what gives rise to a new trial.

The facts are as follows

On the evening of September 13, 2012, two officers of the Buffalo Police Department were patrolling a high crime area on the east side of the city when they saw a vehicle stop abruptly outside of a house. Defendant exited the vehicle, looked several times at the officers’ patrol car, and walked quickly towards the back of the house. The officers suspected defendant of trespassing and quietly followed him, approaching the house from different directions. They lost sight of defendant for approximately 15 to 30 seconds. Defendant suddenly emerged from behind the house, and one officer began questioning him about his behavior. The other officer reported that he had seen defendant “standing next to” a blue City of Buffalo garbage tote located nearby. When one officer lifted the lid of the garbage tote, defendant dropped his head and said, “oh man.” A loaded gun was inside. Defendant was arrested and confessed to having possessed the gun.

Although the ” Defendant moved to suppress the gun and his statements to the police, arguing that he abandoned the gun in response to unlawful police pursuit and that he was arrested without probable cause,” (id. at p.2), the Court only suppressed the statements, finding that the Police were engaged in observation and not pursuit. While the Court finds that the evidence here is sufficient to support the conviction, the Court finds that the statements made by the prosecutor should result in a new trial. more

New York Marijuana Arrests are especially high in New York City. Smoking pot in public. Usually the defendant was smoking in a park or had the unique scent of marijuana emanating from their possessions before the New York City Police intervene. In People v. Velez, 2015CN008005, NYLJ 1202765159918, at *1 (Crim., NY, Decided August 12, 2016), the Defendant was charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law §221.05). As is often the predicate of a great many arrests, stops, searches, seizures and sometimes frisks, the New York City Police Officers swore that

“I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it. I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant’s pocket. I observed Police Officer Christopher O’Connor, Shield # [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant’s bag…I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.”

The Defendant was arrested  for the marijuana that the defendant allegedly threw to the ground. Was it in a public place? As The New York Law Journal Reports, “[a] Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.”  more

The Fourth Amendment, just like the regulations of a driverless car, does not end with the advent of new technology.  Here the use of a cell-site simulator to track down a criminal suspect without a warrant has led to the suppression of a large amount of narcotics seized from a New York City apartment. Logistically, this meant that the scales utilized and narcotics that were likely being sold by the defendant and are suppressed and cannot be used against the defendant at a criminal trial because this New York City tenant was subject to a Fourth Amendment violation by Drug Enforcement Administration Agents:

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). “[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). Barring a few narrow exceptions, “warrantless searches ‘are per se unreasonable under the Fourth Amendment.'” City of Ontario v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The home has special significance under the Fourth Amendment. “‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'” Kyllo, 533 U.S. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

Although technology changes the law evolves to catch up with it. Here, a case nearly half a century old, is invoked by the Southern District of New York to suppress this cell-site simulator: Kyllo v. United StatesKyllo dealt with the production of marijuana, the growing of marijuana, and the use of thermal imaging to detect the grow house. Although widely available now (try a Google search), at the time thermal imaging was only available to the government and allowed them to have “through-the-wall surveillance,” a violation of one’s Fourth Amendment Rights. At the time it was break-through technology. Like Kyllo, “the DEA’s use of the cell-site simulator to locate [Defendant’s] apartment was an unreasonable search because the ‘pings’ from [Defendant’s] cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.” (citing United States v. Knotts, 460 U.S. 276, 281 (1983); State v. Andrews, 227 Md. App. 350, *23 (Md. Ct. Spec. App. 2016)). The advent of such technology, as in Kyllo, does not allow the government to skirt the Fourth Amendment rights of the Defendant:

The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cellsite simulator. See Office of the Deputy Attorney General, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators, 2015 WL 5159600 (Sept. 3, 2015); Deputy Assistant Attorney General Richard Downing Testifies Before House Oversight and Government Reform Committee at Hearing on Geolocation Technology and Privacy, 2016 WL 806338 (Mar. 2, 2016) (“The Department recognizes that the collection of precise location information in real time implicates different privacy interests than less precise information generated by a provider for its business purposes.”).

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Demand an attorney – in New York, one has the indelible right to counsel once the demand is made. This has tremendous importance. The right to counsel, the invocation of that right in New York, can lead to the suppression of evidence. This can occur even in Driving While Intoxicated (DWI) cases. Here, this New York City Criminal Defendant demanded his attorney before providing a breath sample, a breath test, that was later suppressed because he asserted this right.

The Defendant here was charged with Reckless driving (Vehicle and Traffic Law §1212), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]); overtaking a Vehicle on the left (Vehicle and Traffic Law §1163-c) and an equipment violation. As the case often starts, the motorist is stopped and the officer approaches the car. “The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant’s breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred….The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC).” The motorist was arrested and taken to the police station for test to determine his BAC.  At the station, the following colloquy ensued:

The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not —.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don’t have a lawyer —.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don’t have a lawyer and I don’t know what to do —.” Again the defendant was cut off. The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.” The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer.” The video then ends.

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The defendant in Avinger was charged and convicted of  burglary in the third degree, criminal possession of stolen property in the third degree, possession of burglar’s tools, and criminal mischief in the fourth degree. The Second Department holds that the evidence must be suppressed.

Upon suspicion of a burglary, New York City Police Department detectives went to a home to investigate. There was no answer at the door and the New York City Police Department (NYPD) detectives decide to enter the yard of the house. One should note this pivotal point in the factual pattern.

The NYPD then walk through the yard of another home and enter the rear yard of a neighboring home. The New York City Police Department detectives then walked through an alleyway that provided access to the rear of the home at issue. Once there, NYPD Detectives found a car bearing the license plate of which they were investigating. Upon further searching, the detectives peered through the window of a garage discovering video game consoles and video games. Detectives later learned that these video game items were the subject of a burglary. The detectives found and arrested the defendant at the premises. At issue becomes the search and seizure: more

Police need to justify their actions. More than just saying hello or “peeking” into the car window, New York police officers must justify a criminal inquiry or a search. Often there are allegations that New York Police might target one individual over another. Justifications for police action, and sometimes police shootings, in New York have been as tenuous as suggestions that there was something in the suspect’s waistband.

This case is no different. Police had recovered some marijuana in a field and, the next day, the Police went back to the same field to investigate. Here, the defendant was one of several men in the field. When police approached they saw the defendant “quickly grab” near his waist/waistband. This rather innocuous behavior was the justification that police gave to search the defendant in People v. Elliot, an appeal from the defendant’s conviction for possession of, inter alia, a handgun.

The New York Law Journal reported that “[t]he movements of a man ‘grabbing’ at his waistline and bending down toward the floor while in a vehicle did not create the requisite suspicion to justify his arrest by a Rochester police officer, an appeals court ruled.” Indeed, the Appellate Court Court observed that

The officers returned to that area the next day along with a police sergeant, and they observed a group of five or six men, who dispersed upon their approach. The sergeant saw defendant “quickly grab near his waistband area” and enter the front passenger seat of a nearby sport utility vehicle, where the sergeant saw defendant bend over, “as if [defendant] was putting something underneath the seat.” The sergeant left his patrol car and approached defendant with his service weapon drawn, demanding to see defendant’s hands.

One should note that this behavior was the predicate for officers to withdraw their weapons from their holsters and approach behavior completely consistent with innocence. Playing it safe or be cautious does not justify the approach with weapons drawn. The defendant asserts that his Fourth Amendment rights were violated by such a seizure and the subsequent search that ensues. The Court states that…

We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention (see Mobley, 120 AD3d at 918; People v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422-1423; People v Guzman, 153 AD2d 320, 323). Inasmuch as the forcible detention of defendant was unlawful, the handgun and other physical evidence seized by the police, and the statements made by defendant to the police following the unlawful seizure, should have been suppressed.

This is yet another case that highlights the importance of vehemently fighting the criminal charges and hiring an experienced defense attorney. Should you need a Florida licensed Criminal Defense Attorney or Long Island Criminal Defense Attorney, call the Law Offices of Cory H. Morris.