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Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. .  Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

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