Tag: Suppression

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

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.”).

 more

0 comments

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

0 comments

The importance of this case for New York criminal defendants (and, for that matter, New York criminal defense attorneys) is quite profound. The way the case unfolds for this defendant is that she abandoned “240 glassine envelopes purportedly containing heroin” by leaving her handbag in the car. Had she simply held onto her handbag the police may not have been able to search the same and find this heroin. The heroin was seized as part of an inventory search, an exception to the requirement that a warrant be issued or there be probable cause for the search. However, “in the absence of any evidence that such inventory was conducted in accordance with established procedures, suppression was mandated.” Pp.1 (citing People v. Gomez, 13 NY 3d 6). The issue becomes whether the defendant had standing to challenge the search.

Here, as is often the case, the police approached a vehicle and saw the defendant exit the car. A witness noticed two glassine bags of heroine at this point by the floor of the rear passenger compartment. After this observation, the witness saw the defendant exit the car. The Court observed that

By exiting the vehicle and leaving the handbag behind, the defendant abandoned it, for purposes of determining whether the search thereof was permissible. A warrantless search of abandoned property does not constitute an unreasonable search and does not violate the Fourth Amendment (U.S. v. Hoey, 983 F. 2d 890, 892, citing Abel v. U.S. 362 U.S. 217, 241). In New York, where an individual abandons property, there is no search or seizure (People v. Hogya, 80 AD 2d 621 (2d Dept.), app. dism. 56 N.Y. 2d 602). One’s intent to abandon may be inferred from words, acts, other objective facts, or relevant circumstances (U.S. v. Hoey, supra, at 892, citing U.S. v. Colbert, 474 F. 2d 174, 176). The issue is not abandonment in a property right sense, but whether the individual has relinquished any reasonable expectation of privacy by leaving it (Id.)

 more

In the People v. Robinson, 32682013, NYLJ 1202753002450, at 1 (Sup., BX, Decided February 24, 2016) the defendant is charged, inter alia, with Robbery in the Second Degree, Criminal Possession of Stolen Property, and related crimes. The real crux (and importance) of this case is that the police used an iPhone tracking system to find the alleged culprits.

The Court here evaluated a motion to suppress evidence. It is alleged that the Defendant and his accomplice, Atoine Ross, stole a couple of iPhones at gunpoint. The New York City Police Department were called to respond to address these alleged robberies and interviewed the victims. Evidently aware of this new technology, the officers asked the victims whether they installed a computer application “find my iPhone.” Indeed, it was and the officers utilized the application to find the perpetrators. The Officer (Krug) use his own phone to utilize the program and the phones were tracked to 106th Street and First Avenue in Manhattan. Officer’s approached and, although a gun was not immediately in sight, two iPhones were:

“Officer Hernandez observed two iPhones and a belt on the car floor. The officers did not find a gun on either Ross or Robinson. Officer Hernandez opened the unlocked glove box by the passenger seat. There was a loaded, silver, 25-caliber handgun in that glove box. Officer Krug found $14.00 inside the car as well.” Pp. 3.

 more

The defendant appeals from a conviction of criminal possession of a controlled substance in the third degree. The Court suppresses the physical evidence – case is sent back down to the County Court pursuant to CPL 470.45. The Court notes “that defendant correctly concedes that the vehicle was lawfully stopped for having excessively tinted windows in violation of the Vehicle and Traffic Law [and] concedes that, following the stop of the vehicle, the officer was entitled to make level one inquiries concerning defendant’s identity and destination…and to direct him to exit the vehicle when the driver admitted that he had no driver’s license and defendant was unable to produce identification.” (citations omitted). At issue here is the second level of inquiry – the officer should have stopped instead of pursuing the defendant.   more

Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division  noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.

Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).

Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).

In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.

The case is People v. Clermont, available here (NY Law Journal)