Category Archives: Suppression

Automobile except extends to exterior of vehicle

In a novel case, the First Department held that the automobile exception, which permits a warrantless search of a vehicle based on probable cause, extends to the exterior of the vehicle.  In People v. Howard (1st Dept. 2/1/2011), the police witnessed a suspected drug deal.  The Defendant, the driver of the vehicle, reached under the car and handed a small object to a buyer in exchange for cash.  The police stopped the vehicle and found drugs attached to the bottom of the car by magnets.  The court held, "We see no logical reason to give a closed container attached to the outside of a car any greater protection, especially where it is located in an area directly associated with the observed activity giving rise to probable cause."

The court nevertheless reversed because the trial court improperly rejected a challenge for cause to a juror.  (LC)

Evidence flowing from an illegal arrest suppressed at trial


In People v. Williams (4th Dept. 12/30/2010), the defendant appealed two separate convictions: the first was for Criminal Possession of a Weapon 3° and the second was for Burglary 2°. The court agreed with the defendant’s argument that money taken from the defendant’s pocket by a police officer should have been suppressed as “fruit of an unlawful arrest.” 

The Defendant was suspected of various residential burglaries occurring at night. As a result, police obtained a warrant authorizing GPS tracking of the defendant’s car. At 3:00 am on the night of the burglary, the vehicle left the Defendant’s residence, traveled east on I-490, and parked in a neighborhood near the disputed burglary. Approximately one hour later, the vehicle traveled west on the same highway, where it was stopped by police for speeding.  The police officers had reports of “possibly suspicious behavior.” They stopped the car, requested the driver's license and registration, and asked him to exit his vehicle. 

At this point, no probable cause existed to arrest him on Burglary charges. However, there was sufficient reason to stop him, ask him for his license and registration, and order him out of the car, since he was speeding.  Nevertheless, the police went further and engaged in an “intrusion amounting to arrest” requiring probable cause. Specifically, the defendant was frisked, handcuffed, and put into a police car. During the frisk, an officer felt a bulge in the defendant’s pocket that felt like paper. The bulge turned out to be cash, which matched both in amount and denomination with what had recently been stolen. Further, the Defendant lied about his destination: he said he was on his way to Binghamton, but needed to return home for money. At this point, the burglary had been confirmed. The officer testified that the defendant was detained for about 15-20 minutes. 

The majority held that the officers also should not have detained the defendant while other officers attempted to ascertain whether the burglary had been committed without evidence establishing probable cause. Thus, this arrest was illegal. Further, the money taken from his pocket was suppressed because it “flowed directly from the illegal arrest.”  The court went on to hold that the erroneous admission of the unconstitutionally seized evidence (the money) was not harmless error.  The money was the only evidence connecting the Defendant to the burglary. Since this conviction was reversed, the first appeal was also reversed, since it was induced by a promise of a concurrent sentence. 

Justices Scudder and Martoche dissented and argued that the money seized was not the product of an unlawful arrest. Specifically, that these facts fit the principle that if investigating possible criminal activity is going to be served, the police must be able to detain an individual for longer than a brief time period. 

Justice Scudder emphasized that when the police officers knew the defendant was lying about his destination, the matter escalated from reasonable suspicion to probable cause to believe this defendant committed the burglary and justified his arrest. 

Justice Martoche dissented further and argued that the error was not harmless beyond a reasonable doubt because the jury was presented with significant circumstantial evidence of the defendant’s guilt:

defendant drove to the neighborhood where the burglary was committed and circled around and parked for approximately 25 to 30 minutes near the home that was burglarized; items from a purse were found strewn in the vicinity where defendant parked, within minutes after defendant left the area; the purse and items found were missing from a home in the neighborhood where the burglary occurred; partial tread marks on the kitchen floor at the burglarized home matched the sneakers that defendant was wearing when he was apprehended, and did not match shoes owned by the owners of the burglarized home; canine tracking behind and up to the back of the homes in the neighborhood eventually stopped at the burglarized home; and defendant made inconsistent statements to the police when discussing his activities that evening and his behavior was of a suspicious nature. 



AD1 rejects visual body cavity search under the facts

In some drug arrest cases, the police will know that a defendant has drugs on his person and, by process of elimination, determine that the only conceivable place for the drugs is a body cavity. In People v. Colon (1st Dept. 1/4/2011), however, the First Department concluded there was not evidence to support even a visual inspection of the defendant's buttocks. "To conduct 'a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity . . . [V]isual cavity inspections . . . cannot be routinely undertaken as incident to all drug arrests or permitted under a police department's blanket policy that subjects persons suspected of certain crimes to these procedures' (People v Hall, 10 NY3d at 311)." Here, the defendant was searched, pursuant to a warrant, nine days after the facts that gave rise to the warrant. There was no indication that he would have drugs on his person at the time such that a reasonable inference could be drawn that the drugs were in a body cavity, since none were found in his clothing. The First Department unanimously reversed the defendant's conviction and dismissed the indictment. (LC)

COA applies attenuation doctrine

In People v. Bradford (Ct. App. 10/14/2010) (Graffeo, J.) (7-0), the Court of Appeals found there was record support for the Appellate Division's conclusion that the defendant's statement was attenuated from his illegal arrest.  The court based its decision on the time between the arrest and the statement (2.5 hours), the confrontation of the defendant with statements from the victim that had been obtained in the interim, and the absence of mistreatment or pre-Miranda interrogation.  (LC)

Running from warrant location may produce reasonable suspicion

Reasonable suspicion may arise when a suspect flees the location where a warrant is being executed.

In People v. Gray (4th Dept. 10/1/2010), as the police were executing a valid search warrant on the defendant’s residence, the defendant ran through the residence, climbed a fence, and attempted to flee the area.  The police apprehended the defendant.  Subsequently, the police recovered tangible property from the defendant’s residence, from the defendant’s person, and obtained statements from the defendant.  The motion court suppressed the statements and tangible property on the ground that the police lacked reasonable suspicion to pursue the defendant.

The People appealed, and the Fourth Department unanimously reversed, holding that the trial court erred in finding reasonable suspicion.  The court reasoned that the threshold for reasonable suspicion was satisfied by citing People v. Sierra, 83 N.Y.2d 928 (1994), for the precedent that flight in response to approaching police, combined with other circumstances indicative of criminal activity, may be sufficient to give rise to reasonable suspicion.  The court indicated that the evidence obtained subsequent to the valid pursuit, arrest, and warrant were erroneously suppressed.  (MM/LC)