NARCOTICS Category Archives — Page 4 of 8 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

What Is a New York Eavesdropping Warrant?

October 14, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York drug case, affirming the defendant’s conviction. The court’s opinion, although brief, discusses what has come to be known as an eavesdropping warrant.

The Fourth Amendment to the United States Constitution protects all individuals against unreasonable searches and seizures. Over the years, courts have generally held that, to be “reasonable,” a search must be supported by probable cause. Most often, this requires law enforcement to obtain a warrant to conduct a search. Of course, there are certain situations when a warrant is not needed, such as if the officer observes illegal conduct, or the search is conducted incident to a lawful arrest.

Absent an exception to the warrant requirement, law enforcement must obtain a warrant to search a person, their home, their car, or any other private area. Often, law enforcement officers want to search a physical place; however, if they want to search a suspect’s electronic communications, different rules apply.

New Your Court of Appeals Discusses the Standard Required for an Officer to Make a Traffic Stop

October 1, 2020 | Peter Howard Tilem

A state appellate court issued an opinion in a New York gun possession case, last month, requiring the court to determine if the police officers were justified in stopping the defendant’s vehicle for a traffic violation. Ultimately, the court concluded that the officer lacked any basis to believe that a crime had occurred and there was no probable cause to stop the vehicle. Thus, the court held the defendant’s motion to suppress should have been granted and suppressed the firearm.

The Facts of the Case

According to the court’s opinion, a state trooper ran the tags on the defendant’s vehicle. The response was: “CONFIRM RECORD WITH ORIGINATOR ** THE FOLLOWING HAS BEEN REPORTED AS AN IMPOUNDED VEHICLE —IT SHOULD NOT BE TREATED AS A STOLEN VEHICLE HIT — NO FURTHER ACTION SHOULD BE TAKEN BASED SOLELY UPON THIS IMPOUNDED RESPONSE **”

The trooper pulled the defendant over and, as he approached the vehicle, noticed a smell of marijuana and a burnt marijuana joint in the car. The defendant told the trooper that the car had previously been reported stolen, which may explain the message. The trooper searched both the defendant and the car, recovering marijuana and a loaded firearm under the driver’s seat.

New York Court Condones Stop of Defendant’s Vehicle Based on Tip from Confidential Informant

September 13, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued a written opinion in a New York drug possession case involving the defendant’s claim that a stop and search of her vehicle violated her constitutional rights. Ultimately, however, the court determined that the search was supported by reasonable suspicion, rejecting the defendant’s arguments that the officers conducting the search lacked reasonable suspicion.

The Facts of the Case

According to the court’s opinion, the defendant was on parole for an unrelated offense. Evidently, a confidential informant provided information to the defendant’s parole officer that the defendant was selling cocaine. The parole officer believed the informant to be reliable, because the informant had given the officer accurate information three other times.

Specifically, the informant told the officer that the defendant would be returning in a Nissan Altima with Connecticut license plates. The parole officer requested that local law enforcement stop the defendant’s vehicle. Based on the parole officer’s request, police stopped the defendant’s car (which matched the description given by the informant) and found cocaine inside the vehicle.

New York Court Discusses Validity of Search Based on Defendant’s Admission to Possessing Synthetic Cannabinoids

July 3, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York drug case discussing the validity of the search that resulted in the discovery of narcotics. The case required the court to discuss the protections afforded by the Fourth Amendment to the United States Constitution and whether they necessitated suppression of the evidence seized by police.

Police must follow the requirements of the United States and New York constitutions when investigating crime and making arrests. If they fail to do so, or otherwise violate a defendant’s rights, any evidence they obtain cannot be used against the defendant at trial.

The Facts of the Case

According to the court’s opinion, the defendant was under investigation when he admitted to the police that he had synthetic cannabinoids in his home. Under New York law, the possession of synthetic cannabinoids was not illegal under criminal statutes, however, it was a violation of the State Sanitary Code. Relying on the defendant’s admission, police officers secured a search warrant to search the defendant’s home. Upon doing so, police recovered morphine tablets and brass knuckles, both of which are illegal to possess.

New York Court Finds Inexperienced Officer Lacked a “Founded Suspicion” to Stop, Question, and Search Defendant

May 19, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun possession case discussing whether the arresting officer had a “founded suspicion” that there was criminal activity afoot. Ultimately, the court held that the defendant’s motion to suppress the firearm that was found on him should have been granted, because the arresting officer approached, stopped, questioned and subsequently searched the defendant without sufficient reason.

The Facts of the Case

According to the court’s opinion, the defendant was out walking his dog in an area known to be an “open air drug market” when he was approached by a police officer. That night, the temperature was about 40 degrees, and the defendant was wearing a mask that covered part of his face. The officer, who had only been on the force a few months and was working underneath a more experienced officer, pulled his vehicle in front of the defendant’s line of travel, got out of the car, and approached the defendant to ask him why he was wearing a mask. The defendant responded that he was walking his dog.

At this time, the more experienced training officer asked the defendant what was in a bag that he was carrying. The defendant responded that it was “weed.” The arresting officer then frisked the defendant and found a gun. The defendant filed a motion to suppress the gun, arguing that the arresting officer lacked reason to stop and question him, as well as to conduct the pat-frisk that led to the discovery of the gun.

Supreme Court Issues Opinion Impacting New York Defendants with Prior Drug Convictions

May 13, 2020 | Peter Howard Tilem

As we reported in February, the Supreme Court heard argument on a drug case that will likely have significant consequences for many facing New York gun charges. Now, the United States Supreme Court issued a written opinion in the case. Specifically, the case required the Court to interpret the provision of the Armed Career Criminals Act (ACCA) imposing mandatory sentences for those who are convicted of a gun offense after having previously been convicted of at least three drug offenses.

The ACCA seeks to impose escalating punishments for the possession of a firearm, based on a defendant’s prior record. For example, if a defendant is convicted of a gun offense, and has three prior “serious drug offenses,” the defendant is subject to a mandatory minimum sentence of at least 15 years. Of course, not every state’s laws are written the same way, and this requires federal courts to determine whether a drug conviction should be considered a “serious drug offense” under the ACCA.

The Facts of the Case

According to the Court’s opinion, the defendant pleaded guilty to a firearm offense and, based on the defendant’s six prior cocaine-related convictions, he received a sentence of 15 years’ incarceration. On appeal, the defendant challenged the lower court’s finding that the six offenses qualified as “serious drug offenses” under the ACCA.

New York Appellate Court Reversed Trial Courts Denial of Defendant’s Motion to Suppress

April 13, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York drug possession case discussing the defendant’s motion to suppress. Specifically, the defendant appealed the lower court’s denial of his motion to suppress arguing that the arresting officer’s pat-frisk of the defendant was illegal. Without answering the ultimate question, the appellate court concluded that the trial court failed to engage in the proper inquiry, and sent the case back to the trial court for further analysis.

According to the court’s opinion, a police officer watched as the defendant visited a known drug house. As the defendant left, the officer followed the defendant’s vehicle to “try to get a reason to stop it.” The officer witnessed the defendant make two traffic violations, and pulled him over. As the police officer approached the defendant’s car, he saw the defendant moving around and reaching behind the driver’s seat. The officer removed the defendant, patted him down, and felt what he believed to be narcotics in the defendant’s pants. The officer asked the defendant what he had on him, and the defendant admitted to having seven grams of crack.

The defendant was charged with possession of a controlled substance. In a pre-trial motion, the defendant argued that both the crack and his statement to police should be suppressed. However, the trial court found that the officer “had a founded suspicion of criminal activity before the frisk was conducted, thus authorizing the arresting officer to ask the defendant whether he had anything on him.” The trial court denied the defendant’s motion.

Appellate Court Discusses New York’s Tampering with Evidence Statute in Recent Marijuana Possession Case

March 13, 2020 | Tilem & Associates

Earlier this year, a state appellate court issued an opinion in a New York marijuana possession case involving the question of whether the defendant could legally be convicted of tampering with evidence after he threw a bag of marijuana to the ground while being chased by police. The court determined that the defendant’s conduct did not meet the necessary elements of tampering with physical evidence, noting that the proper charge was the lesser offense of attempted tampering with physical evidence.

According to the court’s opinion, police officers were conducting surveillance out in front of a store after there were recent reports of people drinking and selling drugs outside the store. The undercover police officers observed the defendant leave the store while drinking from a bottle that was wrapped in a brown paper bag. Thinking that the defendant was violating the state’s open-container laws, the officers gave the defendant’s description to backup officers, instructing them to stop the defendant.

As the backup officers tried to stop the defendant, the defendant dropped the brown paper bag to the ground and ran. The bottle broke as it hit the ground. A backup officer started to chase the defendant, and noticed that the defendant threw a baggie that was later determined to contain marijuana. After his arrest, the defendant punched the officer in the face. The defendant was charged with various crimes, including assault, possession of marijuana, and tampering with physical evidence. The prosecution argued that by throwing the baggie of marijuana, the defendant tampered with evidence.

New York Court Affirms Doctor’s Manslaughter Conviction after Patient’s Overdose

January 15, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York manslaughter case discussing whether the evidence presented by the prosecution was legally sufficient to sustain the defendant’s conviction for manslaughter. Ultimately, the court concluded that the jury’s decision to convict the defendant, given the evidence, was proper. Thus, the court affirmed the conviction.

According to the court’s opinion, the defendant was a board-certified doctor in anesthesiology and pain management. The defendant operated a practice in Queens, which the prosecution characterized as a “pill mill” in which the defendant would see patients complaining of pain and prescribe medication without verifying the source of the pain or ordering any diagnostic tests. The defendant only accepted cash and charged extra for higher doses of opioid medication.

Two of the defendant’s patients died while overseas, from a combination of oxycodone and alprazolam. Both men filled prescriptions, written by the defendant, for these medications shortly before their death. Pills containing both medications were found on the men’s bodies after their death.

Can New York Police Officers Search a Car if They Smell Marijuana?

September 15, 2019 | Tilem & Associates

On July 31, 2019, a state appellate court issued a written opinion in a New York drug case discussing whether police officers can search a person’s car if they smell marijuana. Ultimately, the court concluded that the search was permissible because the smell of marijuana gives rise to probable cause to search the vehicle. With that said, as more states relax the laws prohibiting the possession of marijuana, courts across the country are rethinking this holding.

According to the court’s opinion, police officers stopped a vehicle in which the defendant was a passenger. Once the officers stopped the car, they claimed the smell of marijuana was “emanating from the vehicle” upon their approach. The police officers ordered the driver and two passengers, one of whom was the defendant, out of the vehicle. The officers searched the defendant, put him in handcuffs, and placed him in the back of their squad car. They then searched the car, finding a small amount of marijuana in the car’s ashtray as well as 16 packets of cocaine in the rear of the vehicle, near where the defendant was sitting.

The defendant, charged with possession of cocaine, filed a motion to suppress the cocaine. The defendant argued that the police officers lacked probable cause to search the vehicle. He also claimed that the cocaine should be suppressed because he was illegally handcuffed and placed in the back of the police car. The defendant did not contest the validity of the traffic stop; only the officer’s decision to search the vehicle.