Articles Posted in CRIMINAL PROCEDURE

In our May 24, 2009 blog entitled “New York City Bans Items that are Common and Lawful Most Other Places in New York State and in the Country” we detailed a long laundry list of items that are illegal in New York City, all of which are defined in the New York City Administrative Code sec 10-131. Items on our original list included mace, ammunition, imitation guns, assault weapons, rifles and ammunition feeding devices (gun clips or magazines). I left handcuffs off that list because I had never seen anyone arrested or summoned for possession of handcuffs. However, this office was recently contacted by a person who received a summons for possessing handcuffs in violation of New York City Administrative Code Sec 10-147.

Sec 10-147 makes it unlawful to possess handcuffs, thumb cuffs, leg irons and even flexible disposable handcuffs. Violation of 10-147 carries a maximum penalty of 10 days in jail and/or a $200 fine. There are numerous exceptions to this law such as possession by police officers, peace officers, military officers, police officers from other states carrying out their official duties in this State, licensed security guards and private investigators acting in the course of their job or while traveling to or from their job and many others. Kinky sex, which was the excuse that this person who was ticketed recently gave, is not one of the authorized exceptions.

In addition, there has been a lot written in this blog and a lot of press about the expansive definition being used, particularly in New York City of gravity knives and we have written about the aggressive enforcement of knife laws in New York City.

New York criminal defense law firm, Tilem & Campbell scored a major victory on a Rockland County Assault case when an Orangetown Judge dismissed the case after a suppression and probable cause hearing. The defendant had been charged with Assault in the Third Degree based upon an altercation that occurred in December 2009. The defendant had faced up to one year and jail on the “A” misdemeanor and had already been suspended from his job as a result of the incident and the charges.

http://www.tilemlawfirm.com/lawyer-attorney-1282538.html had filed a pre-trial motion back in May asking the Court to suppress statements and/or hold a suppression and probable cause hearing. The Hearing was held on July 28, 2010 and one investigator from the New York State Police testified. On cross-examination by Mr. Tilem the investigator admitted that the defendant had been attacked by the victim using eyeglasses as a weapon, that the victim was the initial aggressor and that he had probable cause to arrest the victim but chose not to arrest him.

In a decision dated August 3, 2010, the Judge ruled that the District Attorney’s Office failed to establish probable cause for the arrest and dismissed the Assault in the Third Degree charge.

An issue that comes up very frequently in New York criminal cases is “when may the police properly stop a vehicle”? The intuition or hunch of an officer, even if it thereafter turns out to be correct, cannot justify a stop. Absent at least a reasonable suspicion that its occupants had been, are then, or about to be, engaged in criminal activity, the stopping of an automobile by the police constitutes an impermissible seizure. In addition, any contraband, such as drugs or guns, recovered as a result of improper police conduct may be suppressed.

For example, in People v. Cascio, 63 A.D.2d 183, the defendant had pleaded guilty to Assault in the Second Degree but appealed the denial of his suppression motion. Officers observed defendant and another man walk to the rear defendant’s parked car, open the trunk, look inside and then exchange what appeared to the officer to be money. Based upon that observation, the officers followed defendant’s vehicle and eventually attempted to pull it over. Defendant fled and a chase ensued. Ultimately the defendant crashed his vehicle, a struggle followed and marijuana was found in the vehicle.

The trial court denied defendant’s motion to suppress the seized evidence but the Appellate Court reversed finding that the record lacked any objective evidence of criminal activity. It was insufficient that the officer “felt” a crime was about to be committed. Therefore, the stop was illegal and the evidence found as a result of the stop should have been suppressed. Accordingly, the Appellate Court vacated defendant’s guilty plea and reversed his conviction for Assault in the Second Degree.

Many times police will encounter a vehicle with someone sleeping in the driver’s seat. This often leads to arrests for DWI related charges. The issue in such a situation is whether the police may approach that vehicle, awaken the driver and thereafter ask the driver to exit the vehicle. As with virtually all issues associated with stops, seizures and searches, there is no set answer. This issue is decided on a case-by-case basis taking several factors and variable into account.

In People v. May, 81 A.D.2d 805 the police encountered a parked vehicle in New York City with the driver slumped over the steering wheel. The keys were in the ignition but the car was not running. One of the officers knocked on the window and awakened the defendant. The defendant’s reactions were slow and his speech was slurred. The officer asked defendant to exit the vehicle and while defendant was doing so, a gun fell to the ground. The trial court held that the police were allowed to approach the vehicle and check on the occupant/defendant but that the police were not justified in asking defendant to exit the vehicle because they had no basis to suspect he was involved in criminal activity or was violating the Vehicle and Traffic Law.

The Appellate Division reversed finding that the officers’ conduct was not the product of mere whim, caprice or idle curiosity, but was instead based on specific and articulable facts such as the fact that defendant was slumped at the wheel with the key in the ignition and, when he was aroused, his speech was slurred and his movements were slow. Considering the original approach of the vehicle was legal, in these circumstances, the police could properly ask defendant to step out of the car and display his license and registration.

In New York, a stop of a vehicle on a public roadway is a seizure and must be based upon reasonable suspicion of criminal activity or a violation of the Vehicle and Traffic Law. People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67 (1975). Many times, a vehicle stop is made because the vehicle or its occupants match the description of a suspect wanted in connection with an offense. But what if the only identifying feature known about the suspect is his or her race? Is it enough to stop an individual simply because his or her race matches that of a wanted suspect?

The answer is no. Many times race does play a role in the determination of reasonable suspicion, since witnesses and victims will often describe suspects by their skin color. (see, generally, Johnson, Race and the Decision to Detain a Suspect, 93 Yale LJ 214). A suspect’s race is “a characteristic which may properly be used as one element of identification”. Franklin v State, 374 So 2d 1151, 1154 (Fla). Indeed, race is “an identifying factor which . . .assists the police in narrowing the scope of their identification procedure.” United States v Collins, 532 F2d 79.

A person’s race, however, cannot serve as the sole basis for reasonable suspicion. The New York Court of Appeals has held that ethnic identity alone is an insufficient basis upon which to premise reasonable suspicion. People v George T., 39 N.Y.2d 1028 (1976). Therefore, it is improper for the police to stop someone simply because they are the same race as the suspect even where an individual of one race is seen is a neighborhood inhabited primarily by members of another race. People v. George T. supra.

In New York, the police may not stop your vehicle solely to ask you questions regarding the whereabouts of an individual wanted in connection with a past crime. In People v. Spencer, 84 N.Y.2d 749 (1995), the defendant was convicted of Criminal Possession of a Weapon in the Third Degree and Criminal Possession of Marijuana in the Fourth Degree. The weapon and marijuana were found in defendant’s car after the police stopped him looking for information regarding the whereabouts of defendant’s friend who was wanted in connection with an assault that took place approximately forty hours earlier. The defendant appealed the denial of his suppression motion arguing that the police could not stop his vehicle for the sole purpose of requesting such information.
Noting that the right to request information does not include the right to unlawfully seize, the Court of Appeals agreed with the defendant holding that the stop was unreasonable. The Court noted that the Fourth Amendment does not permit the stopping of potential witnesses. However, noting that the police were investigating past criminal conduct, the Court insinuated the stop might have been legal if the police were investigating recent or ongoing crimes. Accordingly, the Court of Appeals reversed the Appellate Division’s order, granted defendant’s motion to suppress physical evidence and dismissed the indictment.
For more information about this or any other New York criminal law issue, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

One of the first lines of defense in any New York criminal case involving evidence found during a car stop is whether the search of the car was constitutional. In New York, where a vehicle is stopped for a traffic infraction, it is improper for the police to ask for consent to search the vehicle. This rule has been strictly construed by New York courts with one Appellate Court going so far as to suppress a body found in the back of a vehicle stopped for a traffic infraction because the police had no basis to ask for consent to search.

In People v. Turriago, 219 A.D.2d 383 (1st Dept. 1996), the defendant’s vehicle was stopped for speeding by State Troopers on Rt. 17 in Orange County. The Troopers, concerned about illegal hunting, asked defendant for consent to search the vehicle which defendant gave. The police subsequently found the body of a murder victim in the rear of the vehicle. In seeking to suppress the body and other evidence (statements and evidence found during a search of defendant’s apartment), the defendant argued that whether he gave consent was irrelevant because the Troopers had no right to seek his consent to search in the first instance.

The First Department agreed holding that while the Troopers had a valid reason to stop the vehicle, nothing transpired during the stop to justify a suspicion that criminal activity was afoot which was necessary to trigger the Trooper’s common law right to inquire thus justifying a request for consent to search. The First Department therefore, reversed the lower court and held that the body, statements and evidence found as a result of subsequent searches of apartments where defendant stayed must be suppressed.

An issue sometimes arises in New York when the police stop a vehicle for a traffic violation or other legitimate reason but continue to detain the driver after the ticket has been issued or other legitimate police concerns have been addressed. Where a driver is stopped for a traffic infraction and issued a ticket, it is improper for the officer to then ask for permission to search the car. At that point, the request to search exceeds the scope of the reasonable detention of the motorist for the traffic infraction. People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833 (1995).

Furthermore, where a roving border patrol officer stops a vehicle he or she suspects contains illegal aliens, it is improper to ask to search the trunk once that officer determines that the vehicle does not contain illegal aliens. To do so would exceed the scope of the stop. People v. LaRose, 5 Misc.3d 621 (St. Lawrence Co.Ct. 2004). In LaRose, the County Court held that a roving border patrol agent could make an investigatory stop of a vehicle with Texas plates observed near the Canadian border making “improbable” turns (whatever that means).

Generally, investigatory stops are illegal if they are not based upon reasonable cause to believe that a traffic infraction has occurred. People v. Ingle, 36 N.Y.2d 413 (1975). In fact, in Ingle, the Court held that it was improper for the officer to stop the car because of its unusual appearance. Therefore, it would appear that the even initial stop in LaRose was illegal because the officer admitted it was not based upon reasonable cause to believe a traffic infraction had been committed but instead was based upon the officer’s belief that it was unusual to see a car with Texas plates near the Canadian border.