New York Criminal Attorney Blog

MAY A POLICE OFFICER HANDCUFF A LICENSED GUN OWNER WHILE HE VERIFIES THE AUTHENTICITY OF THE GUN LICENSE?

August 12, 2021 | Peter Howard Tilem

As the providers of the only pre-paid legal service for gun owners in New York, NY TAC DEFENSE, we are constantly monitoring the law as it pertains to gun ownership in New York. A recent Connecticut case, decided earlier in the week, is worthy of reporting since Connecticut is in the Second Circuit with New York and this case will probably be reviewed by the Court of Appeals in the Second Circuit and any decision will likely become binding law in New York. In the case of Soukaneh v. Andrzejewski, Basel Soukaneh, sued a Waterbury Police Officer who stopped his vehicle one night. The law suit was filed in the Federal district Court for the District of Connecticut. Soukaneh alleged that when he was stopped he handed the police officer his driver’s license and gun license and indicated that he was armed. The Police Officer reacted by handcuffing Mr. Soukaneh while he verified the authenticity of the gun license and while the officer searched the passenger compartment and trunk of the vehicle.

The police officer filed a motion for summary judgment seeking to have the lawsuit dismissed. Among his arguments were that he had probable cause to believe that Basel Soukaneh was in possession of a firearm without a permit until he was able to verify the validity of the permit. Therefore, Police Officer Andzejewski thought he was justified in handcuffing and detaining Mr. Soukaneh. The Court found this conduct to constitute a de facto arrest. The Court strongly disagreed finding that since it was undisputed that the police officer found out that there was a gun in the car either at the same time or after the officer was given the license, that “no reasonable officer” could conclude that they possessed probable cause that Mr. Soukaneh was violating Connecticut law.

The Court likened the firearms license to a driver’s license and concluded that the same way it would be unconstitutional to presume that a driver’s license was invalid and to detain the driver until its validity was verified, it must be unconstitutional to presume that a firearms license was invalid and detain the gun owner until it was verified. The Court found that a contrary finding would “eviscerate Fourth Amendment protections for lawfully armed individuals.”

Cuomo Resigns Effective in Two Weeks

August 10, 2021 | Peter Howard Tilem

It is currently rumored that Governor Andrew Cuomo will resign effective in two weeks. While we have not been able to confirm this with any news source, we believe this to be the case. To be sure Governor Cuomo has been no friend to law abiding gun owners. The SAFE Act which was pushed through by Cuomo in an attempt to pass it without comment or opposition targeted law abiding gun owners including owners of modern sporting rifles, semi automatic rifles and made it more difficult for all gun owners to purchase ammunition. Several of the main provisions of the Safe Act were either found to be unconstitutional or impossible to implement and are not being enforced. These provisions include the 7 round magazine limit and the background checks to buy ammunition.

If it turns out that the rumor is true, Governor Cuomo will not be missed my gun owners.

Court Grants Defendant’s Motion to Suppress in New York Child Abuse Case After Violation of Defendant’s Right to Counsel

July 30, 2021 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York child abuse case requiring the court to determine if an interview conducted by a child protective services caseworker was in violation of the defendant’s right to counsel. Ultimately, the court determined that the interview was indeed a violation of the defendant’s right to counsel and ordered the suppression of all statements obtained from the interview.

Generally, when someone is under investigation for a crime, they have the right to have an attorney present when they are questioned. However, the law surrounding this area is quite nuanced, and there is much litigation over exactly when someone is under investigation and what constitutes “questioning.”

The Facts of the Case

According to the court’s opinion, a Child Protective Services (CPS) caseworker interviewed the defendant while he was in custody for criminal charges. At the time, the caseworker had been working on a task force with law enforcement agencies where she received training on how to interview individuals who are accused of committing sexual offenses. The caseworker was aware that the defendant was being represented by counsel for his criminal matter, but no counsel was present during this interview. During the interview, the defendant admitted to having sexual contact with the victim. The prosecution intended to use this statement at the defendant’s trial.

Court Grants Defendant’s Motion to Suppress Based on Officers’ Contradicting Testimony

July 22, 2021 | Peter Howard Tilem

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine whether it was legal for officers to obtain the defendant’s gun, ammunition, and DNA evidence after a police pursuit. Ultimately, the court determined that the officers gave contradicting testimony about the incident and ordered the suppression of evidence, the firearm, obtained from the police pursuit. The case illustrates the strict procedures that law enforcement must follow when investigating a crime or arresting an individual.

The Facts of the Case

According to the court’s opinion, police officers observed an object bulging out of the defendant’s right waistband. One officer stepped out of the vehicle, causing the defendant to flee. Both officers testified with different versions of events. The first officer stated that she began running after the defendant and attempted to grab him, which led to the defendant dropping a gun. The second officer testified that the first officer attempted to grab the defendant before he began running, causing the defendant to drop the gun before the officer chased him.

The defendant was arrested, and a gun, ammunition, and the defendant’s DNA profile was recovered from the scene. Despite the different testimonies by the officers, the court denied the defendant’s motion to suppress the evidence.

New York Drug Conviction Reversed After Court Deems Search Illegal

July 15, 2021 | Peter Howard Tilem

The Fourth and Fourteenth Amendments to the U.S. Constitution prohibit law enforcement officers from unreasonably searching or seizing persons or property from citizens in the United States. This is an issue that should be explored by criminal defense lawyers who represent those charged with possessing contraband such as drug offenses or gun offenses. The Fourth Amendment generally requires officers to obtain a warrant from a judge before searching someone’s home. To comply with legal precedent, warrants need to be specific and limited in scope so law enforcement officers do not exceed the authority given to them by the judge who issued a warrant. The New York Supreme Court, Appellate Division, recently reversed convictions of a defendant who was charged with drug offenses based on evidence obtained by a search outside the scope of a valid search warrant.

The defendant in the recently decided case was charged with drug and paraphernalia possession after police executed a search warrant on his home. The search warrant was limited to the defendant’s apartment and any shared common areas within the home. When performing the search authorized by the warrant, police officers entered a locked attic that was outside of the defendant’s apartment and found the drugs for which the defendant was charged. Before trial, the defendant attempted to have the evidence from the attic suppressed by the trial court, arguing that the locked attic was not part of the defendant’s apartment nor was it a shared common area in the home. The trial court denied the defendant’s motion, and he eventually pleaded guilty to the charges, subject to his right to appeal the court’s decision on the motion to suppress.

On appeal, the higher court questioned whether the locked attic was an area that was included in the search warrant. Because the attic was not a part of the defendant’s apartment, the court had to determine whether the attic was a shared common area of the home as described in the warrant. Because evidence suggested that the attic was locked before the search, the court found that it was not a common area of the home and that the search warrant did not authorize entry into the attic. As a result of this finding, the court ruled that the drug evidence found in the attic should not have been admitted at trial, and reversed the defendant’s convictions which were based upon that evidence.

New York Supreme Court Refuses to Suppress Drug Evidence Seized in a U.S. Mail Package

July 8, 2021 | Peter Howard Tilem

Law enforcement agencies are prevented from performing unreasonable searches of members of the public or their property by the Fourth and Fifth Amendments of the U.S. Constitution. These constitutional protections extend to areas where a person has an expectation of privacy, including items that have been mailed through the U.S. Postal Service or third-party commercial carriers. Police usually must obtain a search warrant in order to open and search a piece of mail that they suspect may contain contraband or evidence of a crime. Failure to timely obtain a valid search warrant before opening and searching a piece of mail could render any evidence obtained in the search inadmissible at trial. The New York Supreme Court Appellate Division recently rejected a defendant’s appeal, which had claimed that the warrant used to search a piece of mail he had sent was not valid.

The defendant in the recently decided appeal was arrested after authorities obtained a search warrant and searched a piece of mail that he had dropped off at a post office, and drugs were found. According to the facts discussed in the judicial opinion, the search warrant was issued on September 14, 2017. The defendant’s appeal was based on an affidavit from an investigator that stated the search was performed on September 12, 2017, two days prior to the issuance of the valid warrant. Before trial, the defendant attempted to suppress the evidence obtained in connection with the warrant based on this discrepancy and the apparent illegality of the search. The trial judge denied the defendant’s motion, finding multiple other sources of evidence in the record that stated the search actually was performed on September 14, 2017, after the warrant had been issued. The defendant was eventually convicted of drug and gun charges at trial.

The defendant appealed his conviction to the New York Supreme Court Appellate Division, arguing that the search appeared to have been performed two days prior to the issuance of the warrant and that the evidence obtained in the search was therefore inadmissible. The high court rejected the defendant’s claims, finding ample evidence in the record that the search was performed after the issuance of the warrant. The court determined that the singular reference to a search occurring two days before the warrant was issued was a typographical error and that the actual search occurred after the issuance of the warrant. As a result of the appellate decision, the defendant’s conviction will be upheld.

State Court Addresses Whether New York DWI Stop Was Lawful

July 1, 2021 | Peter Howard Tilem

An appellate court recently reversed a defendant’s motion to suppress all evidence from a New York DWI stop. According to the record, a police officer testified that he received a report that people were smoking marijuana in a white sedan. The informants provided the officer with a license plate number and an approximate location. Coincidentally, the officer was driving right behind the vehicle in question. As the officer was following the vehicle, he noticed the car’s tires go up a curb while the driver attempted to make a right turn. Another police officer testified that she arrived at the scene while the tires went up the curb. Both officers testified that seconds after the tires went up the curb, the original officer turned on the police car’s emergency lights and stopped the sedan. During the stop, the officers detected the smell of marijuana and subsequently arrested the driver.

The accused motioned the court to suppress all evidence from the stop because the vehicle stop was illegal. The City Court issued an order finding that the People did not meet their burden of establishing the lawfulness of the stop. In response, the People appealed, contending that the stop was lawful.

Under New York’s Vehicle and Traffic Laws § 1225-a, no person shall drive on or across a sidewalk. An exception exists if the driver must drive on the sidewalk if it is reasonable and necessary. In those situations, the driver must not exceed five miles per hour or interfere with the safety and passage of pedestrians.

Court Addresses “Fellow Officer” Rule In New York DWI Case

June 30, 2021 | Peter Howard Tilem

A New York court recently issued an opinion addressing several questions stemming from a defendant’s New York driving while intoxicated charges. Amongst several issues, the court addressed whether New York’s fellow officer rule applied to the facts of the accused’s case. According to the record, a police sergeant received a call from an off-duty police officer about a reckless driver. The sergeant did not testify as to what information he received that led him to believe that the driver’s actions were reckless. Nonetheless, the sergeant followed the driver and observed him make two turns without signaling. At that point, the officer turned on his lights and tried to stop the driver. After stopping the defendant, the sergeant contacted a fellow officer to continue the investigation.

At issue is whether the officer was justified in asking the defendant’s “second-level questions.” The fellow officer rules allow a police officer to make an arrest even without personal knowledge to establish probable cause. The law would permit this if the officer acted “upon the direction or communication with “a “fellow officer” who has sufficient information to constitute probable cause. In these cases, the officers are permitted to ask “level one” questions. These questions are non-threatening inquiries about one’s identity, address, or destination.

Courts reviewing motions to suppress stemming from the fellow officer rule must engage in the two-pronged Aguilar-Spinelli test. This test requires courts to assess whether the information the officer acted upon is reliable. Next, the test evaluates whether the informing party possessed an “adequate basis of knowledge” for providing the information. While information received from a law enforcement officer is presumptively reliable, the People must still satisfy the second part of the test.

SUFFOLK COUNTY POLICE SEND OUT WAVES OF LETTER CONCERNING DLD OTHERS

June 23, 2021 | Peter Howard Tilem

As we wrote in our blog on March 12, 2021 Jerry from Jerry’s Firearms in Suffolk County was arrested. At that time there was speculation about the charges and whether Jerry was arrested for selling “other” weapons that the Suffolk County Police decided violated New York’s Safe Act or whether Jerry was arrested for record keeping violations. It now appears that the answer is both.

Franklin Armory Other

In late May 2021 the Suffolk County Police began sending unsigned letters to purchasers who bought the Delta Level Defense CT4-2A, other firearm that demanded that the purchaser call the Suffolk County police to schedule an “inspection” of the gun. Since May, at least one other round of letters has gone out. The letter indicates that those who comply will not be arrested and rumors have been circulating that the Suffolk county Police have threatened those who took the guns out of state or modified them with arrest for tampering with evidence. It has become clear that the Suffolk County police consider these firearms illegal and Jerry has been charged with a class “B” violent felony for selling 10 or more of these firearms. He faces up to 25 years in prison.

Court Grants Defendant’s Motion to Suppress After Officers Search Closed Container Incident to Lawful Arrest

June 21, 2021 | Peter Howard Tilem

The New York and federal constitutions provide fundamental rights to all citizens. Among the most important are those contained in the Fourth Amendment. The Fourth Amendment generally protects citizens from unreasonable searches and seizures. Historically, this meant that police officers needed to obtain a warrant before searching a person, their belongings, or a place in which the person had a reasonable expectation of privacy, such as a home. The Exclusionary Rule prohibits the introduction into evidence and the use in Court of evidence seized in violation of the Fourth Amendment.

However, over the years, courts realized that the warrant requirement was overly burdensome on law enforcement and created exceptions to the warrant requirement. For example, police officers who observed a crime occurring can arrest the person suspected of committing the crime and then conduct a limited search incident to that arrest. Of course, there are limits on the scope of a search incident to an arrest; one of which involves police officers searching a closed container after a lawful arrest.

A recent case illustrates how the plain view doctrine can play out. According to the court’s opinion, a defendant was arrested for criminal possession of a forged instrument. After arresting the defendant, the arresting officer pulled out a manila envelope from the defendant’s pocket. The envelope was closed, and the contents were not visible. However, the police officer opened the envelop enough to peek inside. Inside the envelope, the officer found additional incriminating evidence.