You are here: / SEARCH OF PERSON

Tag Archive for: SEARCH OF PERSON

, ,

Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

,

Even If Initial Frisk of Defendant Was Unlawful, the Defendant’s Pushing the Officer and Running Away Justified the Defendant’s Arrest (for Harassment of the Officer) and Seizure of Drugs

The Fourth Department determined defendant’s motion to suppress evidence was properly denied.  Defendant was a passenger in a vehicle stopped by the police.  A police officer told defendant to get out of the vehicle and proceeded to frisk him.  The defendant then pushed the officer and ran away.  He was captured and drugs were subsequently found.  The Fourth Department determined that, even if the frisk was unlawful, the defendant’s pushing the officer and running away were not precipitated by the frisk:

Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant’s act of pushing the frisking officer was not “spontaneous and precipitated by the illegality . . . [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it” … . We therefore conclude that there was probable cause for defendant’s subsequent arrest for harassment of the frisking officer … . Consequently, the drugs seized from defendant’s person and the backseat of the patrol car were discovered incident to a lawful arrest … . People v Fox, 2015 NY Slip Op 00034, 4th Dept 1-2-15

 

,

Even Though Probable Cause for a DWI Arrest Existed, the Arresting Officer Testified He Was Not Going to Arrest the Defendant Until He Found a Switchblade Knife During a Pat-Down Search—Therefore the Search Could Not Be Justified As a Search Incident to Arrest and the Switchblade Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that a switch-blade found in a pat-down search of the defendant after a vehicle stop should have been suppressed. The way the defendant was driving and the officer’s observations of defendant after the stop provided probable cause for a DWI arrest.  However, at the suppression hearing, the arresting officer (Merino) testified that he was not going to arrest the defendant prior to the pat-down search and only arrested him because the knife was found.  The Court of Appeals held that the search, therefore, could not be a “search incident to arrest” and could not be otherwise justified:

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not … . People v Reid, 2014 NY Slip Op 08759, CtApp 12-16-14

 

,

Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents

The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:

CPL 140.10 permits a police officer to arrest a person for any “offense” that is committed in the officer's presence. The term “offense” is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2(2), however, provides that “[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . .” The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00[6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime … . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense … . Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so. * * *

…[W]hen Jamal was being held pending his parents' arrival, he was under temporary detention as opposed to arrest. “A temporary detention justifies only a frisk, not a full-fledged search” … . The removal of Jamal's shoes was far more intrusive than a frisk or a patdown … . We find no merit to the presentment agency's argument that safety required the removal of Jamal's shoes. “The touchstone of the Fourth Amendment is reasonableness . . .” … . Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. “[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed” … . The standard of reasonableness still applies … . We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees' self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces … . Nonetheless, the removal of Jamal's shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had “anything on him” or otherwise posed a danger. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14

 

,

The Arresting Officer’s Stepping in Front of the Appellant As the Appellant Walked Away Was Not a Seizure But Rather Was a Continuation of the Officer’s Common-Law Right to Inquire

The Second Department determined the police officer who followed appellant as appellant walked away from him and then stepped in front of appellant acted properly.  Suppression of the handgun seized from appellant after a pat down search, therefore, was not required. The arresting officer responded to a call describing a disturbance at a restaurant.  The officer saw the appellant leave the restaurant and noticed a bulge in appellant's jacket pocket.  The officer then began following the appellant and eventually caught up to him (and stepped in front of him).  The court found that the officer's stepping in front of the appellant was not a seizure, but rather was a continuation of the officer's common-law right to inquire:

Contrary to the appellant's contention, the totality of the circumstances gave the officers a founded suspicion that criminal activity was afoot, which gave rise to the officers' common-law right to inquire … . While the appellant is correct that, initially, he had a constitutional right ” to be let alone' and to refuse to respond to police inquiry” …, under the circumstances presented here, the arresting officer's conduct in following and stepping in front of the appellant in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure … . Hence, the conduct of the arresting officer in this regard was not improper.

Moreover, although the appellant continued to walk away from the arresting officer, the arresting officer kept pace with him, and ultimately approached him until they were only an arm's length away from each other. As such, it was proper for the officer to request that the appellant make his hands visible as a reasonable precautionary measure … . Additionally, from this close proximity, the officer observed what appeared to be the outline of a firearm in the appellant's right jacket pocket, which appeared to be pointed at the officer, placing him in fear for his safety. The officer thus properly conducted a limited pat-down search to determine if the bulge was a weapon … . Matter of Shariff H, 2014 NY Slip Op 08435, 2nd Dept 12-3-14

 

,

Officer Did Not Have Reasonable Suspicion Defendant Posed a Danger—Pat-Down Search Triggered by a Bulge In Defendant’s Waistband Was Not Justified Under the DeBour Test

The Second Department determined the arresting officer did not have reasonable suspicion that defendant posed a threat to his safety when he patted defendant down and retrieved a weapon from defendant’s waistband.  Defendant, who was first observed merely standing and smoking a cigarette, had walked away from the police, turned his back to them and made a motion as if shoving something into his front waistband.  The officer, seeing the bulge in defendant’s waistband, immediately patted the defendant down:

In People v De Bour (40 NY2d 210), the Court of Appeals established a “graduated four-level test for evaluating street encounters initiated by the police” … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality … . The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure … . The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime … . Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor … .

Here, those branches of the defendant’s omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting a common-law inquiry, he lacked reasonable suspicion to believe that the defendant posed a threat to his safety when he conducted a pat-down search of the bulge in his waistband … . The police were not responding to a report of a crime involving a weapon and, at most, suspected the defendant of being involved in the burglary of an abandoned house … . In addition, “[a]n unidentifiable bulge which is readily susceptible of an innocent as well as a guilty explanation’ is not sufficient to justify a pat-down search” … . The waistband bulge as described by Officer Castillo only permitted him to ask the defendant if he was carrying a weapon based on a founded suspicion that criminality was afoot … . Moreover, Officer Castillo did not testify that the defendant, upon turning to face the officers, reached for or had his hand on the bulge, or made any threatening or menacing gesture … . Under the totality of the circumstances, Officer Castillo was not justified in searching the defendant’s waistband bulge as a minimally intrusive self-protective measure. Accordingly, the hearing court should have granted those branches of the defendant’s omnibus motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant’s guilt, the indictment must be dismissed … . People v Harris, 2014 NY Slip Op 08351, 2nd Dept 11-26-14

 

,

Odor of Burnt Marijuana Provided Probable Cause to Search Defendant and Vehicle

The Third Department determined that, upon a valid traffic stop, the odor of burnt marijuana detected by officers Denise and Knoetgen provided probable cause for the search of the vehicle and its occupants:

As for the propriety of the … pat down and/or search of defendant, “it is well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants” … . Here, both Denise and Knoetgen testified that they smelled burnt marihuana emanating from defendant’s clothing and the vehicle in which he was riding. Even accepting that Denise’s experience in detecting this distinctive odor was not sufficiently developed at the suppression hearing, we are satisfied that Knoetgen, as a drug recognition expert and a K-9 drug detection officer, possessed the requisite training and experience to do so. Further, and as noted previously, Knoetgen testified that the driver of the vehicle admitted that he and defendant had smoked marihuana prior to being pulled over for the underlying traffic violation … . As the circumstances presented and the observations made by the troopers provided probable cause for Knoetgen’s pat down/search of defendant, we discern no basis upon which to suppress the drugs subsequently seized from defendant’s pant leg. People v Rasul, 2014 NY Slip Op 07378, 3rd Dept 10-30-14

 

,

Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt–Weapon Recovered After Juvenile’s Refusal (and a Police Pursuit) Should Have Been Suppressed

The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt.  The weapon found on the appellant’s person should have been suppressed:

At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification …, may be asked whether he has weapons, and may be asked to remove his hands from his pockets … . However, asking a person to open his or her coat is an “intrusive step” which requires sufficient evidence of criminal activity to permit more than an inquiry by the police … . Here, the police acknowledge they did not see an object until they took their “intrusive step” of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.

The appellant had the “right to be let alone” … . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime … . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed… . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14

 

,

No Probable Cause to Search Car Interior After Occupants Were Out of the Car and Patted Down

The Second Department determined the police officer who stopped the car in which defendant was a passenger did not have probable cause to search the interior of the car after the occupants were out of the car and had been patted down.  The court explained the relevant law:

” [A] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his [or her] own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself [or herself] from harm'” … . Therefore, “absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . A “narrow exception” to this rule exists in circumstances where:

” following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon'”… . People v Baksh, 2014 NY Slip Op 00112, 2nd Dept 1-8-14

 

,

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy