Articles Posted in Search and Seizure

In a recent opinion from a New York court involving drug possession, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of criminal possession of a controlled substance in the fourth degree. He filed a motion to suppress evidence, arguing that the officers who found street-level PCP in his vehicle did not have probable cause to search his car. The appellate court denied the appeal because it found that the officers did, in fact, have enough reason to search the car after having smelled the PCP from outside the vehicle.

The Case

As stated in the opinion, officers in Syracuse were patrolling a high-crime area in August 2017 when they noticed a car that was parked illegally. The officers walked up to the vehicle and saw three occupants – the defendant in the driver’s seat and two other passengers. As soon as the officers approached the car, the officers smelled a “really strong chemical odor” that they recognized as PCP.

Recently, a state appellate court issued an opinion in a New York drug case discussing the concept of an inventory search. An inventory search is performed by police officers to properly determine the contents of the item searched. Inventory searches should not be used for the purpose of discovering evidence of a crime, but instead may only be used for a non-investigatory purpose.

The Facts of the Case

According to the court’s opinion, law enforcement personnel were made aware that the defendant would be driving through a certain location one night to transport drugs. New York State Troopers were directed to stop and search the particular vehicle if they saw it, and that night, the State Troopers stopped the vehicle on the highway, arrested the defendant and her co-defendant, and recovered a large quantity of cocaine from the vehicle. The State Troopers did not have a warrant to stop and search the vehicle. The defendant was convicted of criminal possession of a controlled substance and subsequently filed a motion to suppress the cocaine that had been recovered from her vehicle. The lower court denied the motion and the defendant appealed.

On appeal, the defendant argued that the county court should have granted the motion to suppress the physical evidence recovered from the vehicle because the State failed to sustain their burden of proof that sufficiently established a valid reason for stopping the vehicle or a valid reason for searching it. The appellate court agreed, holding that the prosecution did not meet the burden of proof required to rely on fellow officer exception to justify the vehicle stop. At a suppression hearing, the prosecution bears the burden of proving that the officer who imparted information had probable cause to act and thus had either directly participated in the transaction or observed it. Here, an unidentified member of the county drug task force advised a trooper about the vehicle, and it was passed on to other troopers to conduct the stop but there was no information at the suppression hearing indicating how the county drug task force member learned there were drugs in the vehicle.

Continue reading ›

While state and federal law restrict a police officer’s ability to conduct a warrantless search, courts allow officers to perform a limited search in certain situations. One of these situations involves after an officer makes a lawful arrest. Thus, it is common after a police officer arrests someone that the officer searches the person to make sure that they are not armed. However, here too, there are limitations on the permissible scope of a search. In a recent opinion, a New York appellate court issued an opinion discussing the allowable scope of a search incident to a valid arrest.

The court’s opinion is brief; however, the case arose after the defendant was arrested on 17 counts of criminal possession of a forged instrument in the first degree. While the facts surrounding the defendant’s arrest were not provided, the defendant did not contest their arrest. Instead, the defendant argued that the arresting officer exceeded the scope of a search incident to her arrest.

Apparently, the officer found an envelope in the defendant’s pocket at the time of her arrest. The officer then “peeked” inside the envelope to find evidence that the prosecution intended to use against her at trial. The testimony was not clear whether the envelope was partially open. However, to the court, it didn’t matter.

A New York appellate court recently issued a decision in a criminal accused’s appeal of his kidnapping conviction. The record indicates the accused and his co-defendant allegedly kidnapped the complainant. The victim’s friends received various ransom calls, one of the friends called the police claiming that they recognized the voice as the defendant. Upon arriving at the defendant’s residence, law enforcement found the victim tied up in the garage. Police knocked on the front doors and the door leading to the second-floor apartment when the cousin identified himself as a police officer and confirmed other people were in the apartment. The police subsequently seized the phones that were used to make the ransom calls.

Based on a physical description, police stopped and questioned the accused; after identifying himself, police arrested him. The police then executed a search warrant and recovered the victim’s credit card and the defendant’s benefits card. On a motion, the defendant moved to suppress his statement to police, controvert the search warrant and suppress the physical evidence recovered from the home.

Warrantless searches are lawful if police have obtained voluntary consent from a party who possesses authority and control over the property or premises at issue. A party can establish consent by words and conduct. In this case, the court found that the People met their burden by establishing that the defendant’s cousin had requisite control over the home and provided police with authority to enter the premises. The People also cited the cousin’s testimony where he stated that he intended to help the police. In line with that finding, the court found that the cell phone seizure was lawful because it was in plain view.