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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

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Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

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Conviction for Possession With Intent to Sell Against Weight of Evidence​

In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:

…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell.  People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12

 

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