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Tag Archive for: STREET STOPS

Criminal Law, Evidence

Breathalyzer Maintenance and Calibration Records are Nontestimonial/Vehicle Stop Based on Presence of College Sticker on Back Window Upheld –Judge Pigott , in a Dissent, Would Have Found the Vehicle Stop Unreasonable and Granted Suppression

The Court of Appeals determined the “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. …[S]uch records are nontestimonial…”  Judge Pigott agreed with that “Confrontation Clause analysis” but wrote a dissent about the nature of the vehicle stop that led to the DWI arrest. The suppression court had ruled that the stop was not supported by probable cause “but for … a Finger Lakes Community College sticker in the rear window…”.  Apparently such a sticker violates Vehicle and Traffic Law section 375 (1)(b)(i).  Judge Pigott noted that college stickers are common, the statute is rarely if ever enforced, and stopping a car because of a sticker is “not objectively reasonable.”  Judge Pigott would have suppressed the evidence which arose from the stop.  People vs Pealer, No. 9, CtApp 2-19-13

 

February 19, 2013
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Criminal Law

Flight Provided Justification for Pursuit.

Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire.  The defendant’s flight provided reasonable suspicion to pursue and stop him.  The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action.  People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13

DeBour, street stops

February 13, 2013
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Criminal Law

Frisk of Defendant After a Vehicle Stop Okay, Officer Had Reasonable Suspicion of Criminal Activity and an Articulable Basis to Fear for His Safety.

The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety.   Before the defendant got into the car which was stopped for a traffic infraction, the officer had observed the defendant “engage in a number of ‘handshakes’ “which the officer determined were either hand to hand drug sales or “gang signals.”  When the car was stopped the officer saw the defendant either take something out of or put something into his pocket. People vs Daniels, 9, KA 09-287 Fourth Dept. 2-8-13

DeBour, vehicle stop, street stops, search

February 8, 2013
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Criminal Law, Evidence

Suppression Motion Should Not Have Been Granted, Officers Had “Objective Credible Reason” to Approach.

In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court.  The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of criminality” for doing so.  The men were seen walking from a private driveway toward a car in a public parking lot for a recreation area.  The men were dressed “pretty heavy” for the mid-70-degree weather, unlike the bikers and hikers who use the park.  And there had been a number of daytime burglaries in the area.  People vs Johnston, 8, KA 12-01414 Fourth Dept. 2-8-13

DeBour, street stops

February 8, 2013
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Criminal Law, Evidence

Evidence Seized in Search Suppressed, Police Officer Did Not Have a Founded Suspicion of Criminal Activity When He Questioned Defendant

A police officer approached the defendant’s car which was illegally parked.  The officer asked the defendant “What’s going on” and the defendant answered that he was seeking a prostitute.  The officer asked if there was anything in the car he “should be aware of” and then asked for and received permission to search the car.  A gun was found.  Defendant eventually pled guilty to attempted criminal possession of a weapon.  The Fourth Department determined the search was illegal and suppressed the evidence seized in the search.  The Court determined the officer’s question whether there was anything in the car he should be aware of, a question that rose to the level of “a common-law inquiry under De Bour,” was not based on a “founded suspicion that criminal activity is afoot.”  People vs Carr, 3, KA 08-02222 Fourth Dept. 2-8-13

DeBour, street stops

February 8, 2013
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Criminal Law, Evidence

Syracuse Police Officer Did Not Have Authority to Arrest in Town of DeWitt, Judge Abused Discretion During Jury Selection.

A City of Syracuse police detective was assigned to a security detail for a college athletic event.  The detective saw codefendant walk toward the gymnasium, turn around and walk back the way he came.  The detective followed the codefendant to a car. The detective then approached the codefendant and asked to speak with him.  Defendant, who had been in the car, got out of the car.  The detective smelled burnt marihuana and both codefendant and defendant admitted they had been smoking marihuana.  A consent search of the car turned up a loaded revolver leading to the defendant’s and codefendant’s arrest.  The encounter with the City of Syracuse detective actually took place in the Town of DeWitt, not the City of Syracuse.  The Fourth Department held, pursuant to Criminal Procedure Law section 140.50 (1), the City of Syracuse detective did not have statutory authority to stop and question the defendant outside “the geographical area of such officer’s employment…”.  The physical evidence was suppressed and the indictment dismissed on that basis.  The Fourth Department went on to hold that there was a valid alternative ground for reversal.  The jury selection process went very fast, proceeding group to group.  The judge told counsel that once the peremptory challenges for a particular group were finished, there would be no further opportunity to challenge anyone in that group.  One of the defense attorneys told the judge that the jury selection process was moving too fast and the defense did not want one of the jurors in the previous group.  The judge refused to allow a challenge of that juror.  The Fourth Department held the judge’s refusal was an abuse of discretion requiring reversal stating:  “ ‘We can detect no discernable interference or undue delay caused by [the] momentary oversight [of the attorneys for defendant and codefendant] that would justify [the court’s] hasty refusal to entertain [their] challenge….’ ”.  People v McGrew, 1453, KA 09-01308 Fourth Dept. 2-1-13

vehicle stops, street stops

February 1, 2013
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Criminal Law, Evidence

Defendant’s Flight Did Not Justify Police Pursuit.

Flight was not sufficient to justify police pursuit.  A police officer had been shot in the afternoon.  About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred.  The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer.  The defendant subsequently pled guilty to criminal possession of a weapon.  The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”.  Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”.  People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13

DeBour, street stops

February 1, 2013
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Criminal Law, Evidence

No “Reasonable Suspicion,” Defendant Should Not Have Been Stopped and Detained.

A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department.  A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood.  The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene.  People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13

DeBour, street stops

January 30, 2013
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Criminal Law

Flight Elevated Level of Suspicion and Justified Pursuit.

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13

DeBour, street stops

January 29, 2013
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Criminal Law, Evidence

Pat-Down Search Justified by the Objective Existence of Probable Cause to Arrest, Even Though the Officer Did Not Intend to Arrest at the Time of the Search.

In a full-fledged opinion by Justice Saxe, the First Department determined that a pat-down search was justified because probable cause for arrest existed (for DWI) even though the officer did not intend to arrest the defendant, whom he had just directed to step out of his car, at the time of the search.  The Court wrote:

This appeal addresses whether suppression should have been granted where the police stopped defendant’s car for a traffic infraction, and, based on what the arresting officer heard and observed, defendant was asked to exit the car and patted down; he was placed under arrest only after a knife was found in his pocket.  Because the arresting officer candidly admitted that he had not intended to arrest the driver before discovering the knife, defendant contends that the officer lacked the requisite predicate for the search and that therefore we must suppress the knife and other fruits of the search that followed.  We disagree.

The arresting officer’s factual testimony … established that the necessary predicate existed for each step taken by the officer.  Because … we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the search were admissible.  While we rely on the factual testimony of the arresting officer, we are not bound by his subjective assessment at the time regarding the nature and extent of his authority to act. *  *  *

…[W]e conclude that, even if the police are incorrect in their assessment of the particular crime that gives them grounds to conduct the search, or if they incorrectly assess the level of police activity that is justified by their knowledge, where the facts create probable cause to arrest, a search must be permissible.  People v Reid, 7360 Ind. 717/09 First Dept. 1-3-13.

 

January 3, 2013
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