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SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.

The Fourth Department determined cocaine found on defendant's person in a strip search should have been suppressed. Defendant was stopped on the street after the police saw an exchange between defendant and a woman. The defendant was patted down with his consent but nothing was found. The defendant was then placed in the back of a police car uncuffed. When the police questioned the woman, she told them defendant had cocaine between his buttocks, where it was eventually found. The trial court found defendant had been illegally detained but did not suppress. The court noted that, because the illegal detention finding was not adverse to the defendant, the court could not consider the issue on appeal. Therefore, the People's argument that the police actions were proper from the outset could not be entertained. The court concluded the seizure of the cocaine was not sufficiently attenuated from the illegal detention:

As a preliminary matter, we note that, “[s]ince we are reviewing a judgment on the defendant's appeal, and the issue of whether the defendant was [unlawfully detained] was not decided adversely to him, we are jurisdictionally barred from considering” the People's contention that the police officers' encounter with defendant was lawful at its inception and at every stage thereafter … .

We agree with defendant that the court erred in determining that the seizure of evidence from his person was attenuated from the taint of the illegality … . “While the effect of illegally initiated police intrusion may potentially become attenuated, as a practical matter there is rarely opportunity for the attenuation of primary official illegality in the context of brief, rapidly unfolding street or roadside encounters predicated on less than probable cause . . . [O]nce a wrongful police-initiated intrusion is established, suppression of closely after-acquired evidence appears to follow ineluctably” … . People v King, 2016 NY Slip Op 02264, 4th Dept 3-25-16

CRIMINAL LAW (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EVIDENCE (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCHES AND SEIZURES (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/STREET STOPS (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/APPEALS (CRIMINAL LAW, RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL)

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