Articles Posted in CRIMINAL PROCEDURE

One of the first questions I ask a defendant charged with Driving While Intoxicated, Driving While Ability Impaired or Driving While Ability Impaired by Drugs or any type of possession crime such as drugs or guns, is what brought about his or her initial contact with the police. If their vehicle was stopped by the police, my next area of inquiry is “was the stop legal”? Today, with a cell phone in virtually every car, we are seeing more and more cases where motorists are reporting erratic driving to the police right from the road. The question therefore is: can the police stop a vehicle based solely on a phone tip that the vehicle was driving erratically? The answer is no.

In People v. Royko, 201 A.D.2d 863 (4th Dept. 1994), the police received a call reporting a car driving erratically. About an hour later, officers saw the vehicle parked outside a restaurant and later observed the vehicle driving down the street. The officers then stopped the vehicle, at which time they detected to odor of an alcoholic beverage and observed the driver to have bloodshot, watery eyes. The driver admitted to having two beers and was unable to perform standardized field sobriety tests. The driver was subsequently arrested for Driving While Intoxicated.

At the suppression hearing, the officer testified that his sole purpose for stopping defendant’s vehicle was the radio dispatch he had heard regarding the erratic driving an hour earlier. The officer made no independent observations. The Fourth Department held that the officers lacked a reasonable suspicion sufficient to stop a vehicle based upon a report that it was driving erratically an hour earlier. The officers made no independent observations of erratic driving and further they had no way of knowing if it was the same driver. The defendant’s suppression motion was therefore, granted.

If you a charged with an offense such as Driving While Intoxicated, weapons offense (guns, etc) or controlled substance offense (cocaine, crack, marijuana etc), one of the first areas a criminal defense attorney will look at is why the police stopped you in the first instance. In other words, what brought about that initial contact between you and the police? If the stop was illegal, all evidence, including observations, obtained as a result of that illegal stop should be suppressed.

In New York, an officer may approach an individual sitting in a parked car and request information provided they have an articulable reason not necessarily related to criminal activity. For example, in a case discussed in a prior blog, despite the fact that it is legal to do so, officers may approach an individual sitting in the driver’s seat of a car parked in front of a fire hydrant and request the that person’s license and pedigree information. People v. Thomas, 19 A.D.3d 32, (1st 2005). In New York, this is referred to as a “Request for Information”.

Obviously an officer cannot request information from a person in a moving car; that car must be stopped first. In order to legally stop a vehicle, an officer must have a reasonable suspicion that a person in that vehicle was involved in a felony or a misdemeanor or that the vehicle committed a traffic infraction. In New York, this is referred to a “Stop”. Therefore, what if that parked car in Thomas had started to pull away just as the officer had pulled up? The officer would have had to actually stop that car.

In a case involving a New York City drug case, the Appellate Division held that a police officer may request the driver’s license and pedigree of an individual sitting in the driver’s seat of a vehicle parked in front of a fire hydrant. People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472 (1st 2005).

In Thomas, the police approached a defendant who was sitting in the driver’s seat of a vehicle parked in front of a fire hydrant and asked him for his license and pedigree information. A computer check indicated that defendant’s license was suspended and he was then arrested. Upon searching his pockets, the police found “crack” cocaine. Defendant was subsequently charged with Aggravated Unlicensed Operation in the Third Degree (VTL § 511(1)(a)) and Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06).

In granting the defendant’s motion and suppressing the drug evidence, the Honorable William A. Wetzel of the New York County Supreme Court found, and I believe correctly, that by stopping his police van so as to block in defendant’s vehicle, the officer had in fact “stopped” defendant. Because J. Wetzel found the police conduct constituted a “stop”, the police needed probable cause. Noting that VTL § 1202(3)(b) permits parking in front of a fire hydrant provided a licensed driver is in the driver’s seat, J. Wetzel held that the officer did not have probable cause to suspect a traffic infraction had occurred (this is obvious because the officer would have had no way of knowing the driver’s license status).

In any New York criminal case where the prosecution has obtained evidence such as guns or narcotics, that they intend to introduce at trial, one of the first areas a criminal defense attorney will explore is why the police stopped/seized and searched the defendant, his home, his vehicle etc. If the stop/seizure was illegal, all evidence obtained as a result of the stop should be suppressed.

In People v. Sobotker, 43 N.Y.2d 559 (1978), the police observed a vehicle driving slowly at night in a well traveled and well lit entertainment and shopping area. Several burglaries had recently taken place in the area. The police observed the occupants glance towards a bar as the vehicle actually came to a stop and paused for two seconds. The vehicle then continued to a stop sign where the police claimed the occupants glanced towards a second bar. At that point, the police stopped the vehicle. The driver exited the vehicle and told the police he did not have a license nor could he produce a registration card. The passengers were then ordered out of the vehicle and during a pat-down search, bullets were found in the pocket of one of the passengers. A gun was subsequently found in the vehicle.

The defendant’s motion to suppress the weapon and the bullets was denied and defendant was convicted of Unlawful Possession of Weapons by Persons Under Sixteen in violation of Penal Law 265.05. The Appellate Division affirmed the denial of defendant’s suppression motion however, the Court of Appeals reversed holding that there was no objective evidence of criminal activity as of the time of the stop. The defendant’s “innocuous” acts of pausing in front of a bar and stopping at a stop sign did not reasonably denote criminal activity. The gun and bullets were therefore suppressed, the judgment vacated and the indictment dismissed.

A police officer may not stop your vehicle based upon hunches or gut feelings. A vehicle may only be stopped if the officer has reasonable suspicion of a violation of the law or in accordance with nonarbitrary, nondiscriminatory, uniform procedures, such as at roadblocks, checkpoints and weighing stations.
In People v. Reynolds, 185 Misc.2d 674, 713 N.Y.S.2d 813 (N.Y.Co.Ct. 2000), the Monroe County Court held that an officer observing a known male prostitute entering a vehicle was insufficient to justify the stop of that vehicle. In fact, the Court suppressed a computer check of the vehicle’s registration. In Reynolds, the officer observed a known male prostitute enter a parked pick-up truck which then pulled away. The officer followed the pick-up truck and ran a computer check on the license plate number which revealed an expired registration. The officer then stopped the vehicle, separated the driver and passenger at which time he observed the driver the exhibit signs of intoxication. The driver was subsequently charged with Driving While Intoxicated. No prostitution related charges were ever filed.

As discussed in the previous blog New York police are limited in the way they interact with civilians that they encounter on the street. If the police overstep their authority an experienced criminal defense attorney can use the police conduct to get evidence in a case suppressed.

Below are the four levels of intrusion as set forth by the New York Court of Appeals in Debour. Keep in mind that each case is an individual and may be affected by the minute details of the case.

Level 1 “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. For example, approaching possible witnesses to a crime and checking to see if everyone involved in an accident is alright.

In New York, a large body of law has developed around police interaction with civilians that they encounter on the street. When may a police officer approach you for information, question you about criminal activity, detain you and finally, arrest you? Experienced New York criminal defense lawyers must be well versed in this area of law. If the police overstep their authority and thereby obtain evidence, skilled criminal attorneys can challenge that evidence in Court at a suppression hearing and have the evidence suppressed. Suppression of evidence can lead to the dismissal or reduction of charges, favorable jury verdicts and favorable plea bargains. Here at Tilem & Campbell, we have used suppression to obtain dismissals of some tough cases.

Suppression, can be especially valuable in fighting drug cases or gun cases since without the contraband as evidence, the case is almost always dismissed. But suppression can also be useful to prevent the admission at trial of statements, identifications, physical evidence of criminal activity or electronic surveillance.

No two cases are alike and each case and each set of facts must be analyzed by analogizing from previously decided cases with similar facts. In a well written and thorough decision, the New York Court of Appeals developed four “Levels” of police intrusions with each Level being based upon the intensity of the intrusion upon the civilian’s life. See People v. De Bour, 40 N.Y.2d 210 (1976). These four level have become the guiding principle for police encounters with civilians on the streets of New York. So much so that New York Courts have cited to Debour well over 1600 times in judicial opinions that have been published in New York. That means that in the more than 33years since Debour was decided, New York Courts cited to it on average about 50 times per year in published opinions.