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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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No Reasonable Suspicion of Criminal Activity—Frisk of Defendant Improper​

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:

The level one request for information may include ” basic, nonthreatening questions regarding, for instance, identity, address or destination'” …. However, ” [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'” … and the encounter has become a level-two common-law inquiry, which must be supported by ” “a founded suspicion that criminal activity is afoot”‘” …”[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” ….

“[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior” …. ” [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'” …. Thus, “in order to justify a frisk of a suspect’s outer clothing, a police officer must have “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety”‘”…. Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or “stop-and-frisk” search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

STREET STOPS

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:

Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is “‘probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape’ “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … .  * * *

The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle’s occupants  acknowledged  ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had  been or was  being  committed,  which  justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant’s claim that the statements he made thereafter should have been suppressed as “fruit of the  poisonous  tree.”  People v Thompson, 104836, 3rd Dept, 5-2-13

SEARCH, SUPPRESSION, SUPPRESS

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Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs.  The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant.  However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid.  In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent.  But because her statement was not “involuntary” it would be available for impeachment at trial should she testify.  People v Boler, 104092, 3rd Dept, 5-2-13

SUPPRESSION, SUPPRESS

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Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression; Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”

The Fourth Department determined drugs seized from defendant’s person incident to his arrest should have been suppressed because defendant’s warrantless arrest took place in his home in the absence of exigent circumstances. The court also noted that the search and seizure of a package from Paraguay addressed to defendant did not violate defendant’s constitutional rights because opening the package “constituted a border search … which may be conducted ‘without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country’ “… . People v Boyson, KA 11-01343, 229, 4th Dept, 4-26-13

SUPPRESSION, SEARCH

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No Exigent Circumstances—Warrantless Search of Home Not Justified

In determining “exigent circumstances” did not exist and therefore the entry of the defendant’s home without a warrant was not justified, the Fourth Department wrote:

Factors to consider in determining whether exigent circumstances exist are “(1) the nature and degree of urgency involved and the amount of time needed to obtain a warrant; (2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought[;] and (4) information indicating that the possessors of the contraband are aware that the police are on their trail” ….Here, the People failed to meet their burden of establishing that exigent circumstances existed to enter defendant’s apartment without a warrant … . The People established that, earlier that day, defendant sold drugs to a police agent inside his residence. In the afternoon, defendant again sold drugs to the police agent at a location outside his home. Defendant was arrested after that sale as he was driving his vehicle back toward his residence. The police went to defendant’s residence 45 minutes after his arrest and climbed through a window to make sure that no one was inside the residence who could destroy evidence before the police could obtain a warrant. Based on that evidence, we conclude that there was no urgency to enter defendant’s residence.  People v Coles, KA 10-02301, 226, 4th Dept, 4-26-13

SUPPRESS, SUPPRESSION, SEARCH

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Search of Camera in Possession of the Police for Illegal Images Was Valid Even though Underlying Warrant Was Issued In a Case Closed Before the Search

In a search, the defendant’s computer and camera were seized.  Based on a picture found on the computer, the defendant pled guilty to possessing a sexual performance of a child.  After his sentence was served and after the time to appeal had elapsed defendant’s attorney contacted the prosecutor and asked for defendant’s seized camera to be returned. At that time the camera was analyzed for the first time and images found on the camera were the basis for the predatory sexual assault conviction that was before the Court of Appeals. The defendant moved to suppress the images found on the camera arguing that at the time the images were found the authority provided by the warrant under which the camera was seized had lapsed, making the search of the camera illegal.  In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the defendant had no expectation of privacy in the contents of the seized camera, and, therefore, the search of the camera did not violate the Fourth Amendment.  Judge Lippman noted that “it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding…”.  Here, the Court determined, a legitimate law enforcement purpose existed at the time the analysis of the camera was done.  The camera could not be returned until it was determined no illegal images were contained in it. People v DeProspero, 44, CtApp 3-26-13

SEARCH AND SEIZURE, SUPPRESS, SUPPRESSION

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Strip Search After Controlled Buy Upheld

A warrantless search of “every part of [defendant’s] vehicle” as well as a strip search of the defendant was upheld by the Third Department.  The search of the vehicle was justified by the same evidence which provided probable cause for the arrest (a controlled drug purchase by a confidential informant).  And the strip search was justified by the failure to find narcotics or buy money in the preliminary vehicle search. “[A] strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner… Some of the factors that may be considered in determining the reasonableness of such a search are the circumstances of the arrest, the defendant’s nervousness or unusual conduct, tips from informants, and ‘an itinerary suggestive of wrongdoing’…”.  People v Anderson, 104220, 104447, 3rd Dept. 3-7-13

STREET STOPS, SUPPRESSION, SUPPRESS, SEARCH

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“Plain View” Doctrine Does Not Require Certainty Seized Item Is Contraband

In affirming the denial of a suppression motion, the First Department determined that the chain of events observed by the arresting officer before the stop of defendant’s vehicle led to the proper application of the “plain view” doctrine for the seizure of contraband.  Defendant was seen going into a store (which was a frequent target of thieves) with a large empty bag and coming out of the store with the bag visibly heavier and fuller.  After a vehicle stop (the stop was not contested or discussed in the decision), the defendant gave answers to questions that contradicted what the officer had observed and the officer saw a large amount of over-the-counter medications in the bag.  In finding the seizure of the bag justified under the “plain view” doctrine, the Court said:  “The plain view doctrine does not require certainty or near certainty as to the incriminating nature of the items.  Instead, it ‘merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief …that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.  A practical, nontechnical probability that incriminating evidence is involved is all that is required’ …”.  People v Taylor, 9439, 6265/10, 1st Dept. 3-7-13​

STREET STOPS, SUPPRESS, SEARCH

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