New York Criminal Law and Procedure

DNA collection from cigarette held not to violate indelible right to counsel

Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order.  One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.

In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that.  The circumstances of the collection, however, raised an "indelible right to counsel" question.  The Defendant was suspected of a robbery.  He was arrested on a bench warrant in an unrelated matter in which he had counsel.  While locked up, the Defendant asked if he could see the detective, whom he was friendly with.  The detective then had a conversation with the Defendant about general matters.  Neither the robbery nor the unrelated criminal matter were discussed.  During the conversation, the two smoked cigarettes.  The detective later brought the cigarette butt to the lab for testing.  

A unanimous Court of Appeals held:

[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."

(LC)

Unilateral triggering of indelible right to counsel? COA says no.

Last month, the Court of Appeals decided an interesting case on the indelible right to counsel, People v. Pacquette (Ct. App. 6/7/2011) (Read, J.) (5-2).  The Defendant was suspected of a homicide in Brooklyn and he made inculpatory statements on that crime that he sought to have suppressed.  The statements were made after the Defendant had been arraigned in Manhattan on drug charges.  Brooklyn detectives had already put the Defendant in a lineup in Brooklyn and were sitting with him in Manhattan Criminal Court.  The Defendant was ROR'd and was then arrested by the Brooklyn detectives.  He then made the incriminating statements.

The question boiled down to whether the Defendant's attorney on the drug charge sufficiently communicated his involvement in the Brooklyn case such that the indelible right to counsel would have attached.  The court looked at the conflicting testimony of the various participants, including the attorney and the detectives, and concluded that he had not.  Specifically, the Defendant argued that his attorney's "neglect to 'specify' to the detectives whether he represented defendant in 'the drug case or the homicide case or both,' created an ambiguity causing the indelible right to counsel to attach."  He argued that it at least warranted sending the case back for a further hearing. 

The Court of Appeals disagreed, holding, "We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now. ... If he had said in open court that defendant 'was represented by counsel and that [the police] should not question him,' the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant's lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements." 

The facts of the case are a bit convoluted, but the decision is worth a read if you have a right to counsel issue in a case.  (LC)

Identification held not to be unduly suggestive

The Court of Appeals, in Peopdle v. Gilford (Ct. App. 5/3/2011) (7-0), held that evidence in the record supported that an identification of a defendant under police spotlights, exiting a police car wearing handcuffs and subject to visible flanking in front of the witnesses, was not unduly suggestive.

One victim suffered a mortal stab would in his chest at an indoor roller skating rink called “Skate Key” in the Bronx; another suffered a nearly fatal stab wound. Immediately after the stabbing, a female witness who was helping one of the victims, identified the Defendant as the attacker, to a police sergeant assigned to the area outside of Skate Key. The witness and sergeant pursued the fleeing Defendant and were later joined by two uniformed police officers.  The defendant was apprehended.  An officer took the Defendant to the hospital with the hopes of doing a showup with the first victim.  However, the officer was told that the victim was being attended to by physicians and could not do a showup. 

Nevertheless, the officer stopped two individuals who appeared distraught.  They indicated that they were at the hospital because they were friends with the first victim.  The officer asked “if they knew anything about what had happened at Skate Key and they said that they did.” The officer did not know that the female witness had already identified the Defendant to the sergeant as the attacker. The witness and companion identified the attacker under a bright light while the Defendant was in handcuffs. This took place no more than 45 minutes after the crime.

The trial judge denied the defendant’s motion to suppress the identification evidence because exigent circumstances, specifically, Jones’s imminent death, existed; further, the showup was not unduly suggestive, even though the defendant was “spotlighted by takedown” lights, taken from a police car wearing handcuffs and “flanked by police officers in plain view.” Additionally, defense counsel unsuccessfully argued that the showup was impermissibly duplicative because the officers had to have known that a showup was unnecessary to establish probable cause since the defendant was already under arrest. The judge responded that the chain of events was “unbroken,” “related in temporal and geographic proximity” and was necessary in light of the circumstances.

The Appellate Division found no basis for suppression and the Court of Appeals affirmed; the Court explained that the suppression inquiry is whether the showup was reasonable under the circumstances and then if it was unduly suggestive.  As both are mixed questions of law and fact, and the trial court and Appellate Division's findings were supported by evidence in the record, further review by the Court of Appeals was not possible. (RB/LC)

Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.

(LC)

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. 

(RB/LC)

 

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)

Blood trail leads to warrantless search

In People v. Rodriguez (2d Dept. 8/31/2010), the Second Department reversed the lower court’s suppression of physical evidence.  The appellate court held that the evidence was recovered within the bounds of the emergency exception to the Fourth Amendment.

Police officers were summoned to the fifth floor of an apartment complex in response to a 911 call reporting a stabbing.  Upon arrival, the officers found the defendant bleeding profusely in a fifth-floor stairwell.  The defendant described his assailant to the officers, and thereafter several officers were dispatched to apprehend the suspect.  One officer stayed with the defendant until emergency services arrived.  This officer questioned the defendant about the attack.  The defendant stated that he was walking on the fifth floor when his assailant stabbed him for no reason.  The defendant further stated that he did not live in the building.  After the defendant was taken away in an ambulance, the officer learned from the fifth-floor tenant who called 911 that the defendant did in fact live in the building.  The officer’s suspicion was raised upon learning that the defendant lied to him about living in the building.

From the fifth-floor stairwell where the defendant was found, the officer followed a trail of blood down to the third floor.  On the third floor, the trail continued over the landing to apartment 3L.  The officer noticed blood in front of and on the door of apartment 3L.  The officer knocked on the door, but no one responded.  Instead of trying to break down the door, which the officer did not believe he would be able to do because of his small stature, or waiting for backup to assist in his entry, which the office believed could take up to thirty minutes, the officer asked the superintendent to unlock the door.  The superintendent unlocked the door ten minutes later.  By this time, the searching officer learned that the other officers had apprehended a suspect whom the defendant positively identified at a showup.  The officer, now joined by another officer, went inside apartment 3L where they observed blood in the kitchen and the living room, but did not find any other victims.  The officers noticed a digital scale with what appeared to be powdered cocaine on top, on the kitchen counter.  They also found a hydroponic tank with pots containing marijuana plants on the kitchen floor.  After a few minutes both officers left apartment 3L.  The officers subsequently secured a search warrant and made a complete search of apartment 3L where they recovered marijuana, cocaine, and drug paraphernalia.  The defendant lived in apartment 3L.

At a hearing, the defendant moved to suppress the physical evidence obtained from his apartment.  The People argued that the warrantless entry into the defendant’s apartment was justified under the emergency exception to the warrant requirement of the Fourth Amendment.  In granting the defendant’s motion to suppress, the hearing court found that the People failed to satisfy their burden of showing that the police had reasonable grounds to believe there was an emergency at hand.  The People appealed.

The Second Department noted the conflict between the Fourth Amendment and New York Law created in 2006 by Brigham City v. Stuart, 547 U.S. 398 (2006).  In Brigham City, the Supreme Court held that subjective motivation was irrelevant to the evaluation of warrantless entry in an emergency situation.  The rule applied by the Second Department here stems from People v. Mitchell, 39 N.Y.2d 173 (1976).  In Mitchell, the Court of Appeals set forth a three-prong test for evaluating whether an emergency situation justifies a warrantless search:

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 some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

The Second Department did not reach the issue of whether the subjective prong of the Mitchell test should be abandoned in light of the ruling in Brigham City, because it found that the scenario at hand satisfied both sets of rules. 

The court generally found that the first prong was carried by the officers responding to a reported emergency, the defendant not indicating whether he was the only victim, the officer’s elevated suspicion due to the defendant’s evasive behavior, and the blood trail leading to apartment 3L.

In determining the second prong, the court looked to the officer’s testimony that the reason they entered apartment 3L was to search for additional victims.  The objective facts also supported this testimony. They included the defendant indicating that he had been attacked on the fifth floor, the blood trail leading to apartment 3L, the blood on the door of apartment 3L, and the officer asking the superintendent to open the door.  These facts along with an absence in the record of any indication that the officers had any suspicion that the defendant was engaged in any criminal activity—unrelated to the altercation—carried the second prong for the People.

Finally, the court found that the police had some reasonable basis to associate the emergency with apartment 3L because of the blood trail, the blood at the threshold, and the blood on the door.

Thus, the emergency exception was satisfied and the court did not have to address whether New York law should change in response to the U.S. Supreme Court's ruling in Brigham City.  (MM/LC)

Reasonable expectation of privacy in hotel past checkout

In People v. Hardy (2d Dept. 8/10/2010), the Second Department held that the policies and practices of a hotel may result in the extension of a defendant's reasonable expectation of privacy past checkout time, but that when the hotel takes affirmative steps to evict a defendant for good cause the defendant's expectation of privacy in the hotel room is extinguished.

The defendant stated at the hotel in question for several nights.  When the defendant first checked into the hotel, he paid for a night in a room.  Checkout time was 11:00 A.M. the following day.  The next day, the Defendant did not checkout and did not prepay for an additional night in the room.  Hotel staff did not take action against the Defendant and permitted him to stay in the room overnight without prepayment.  The following day, the Defendant paid for the previous night and prepaid for an additional night in the room.  The next day, the Defendant again did not checkout and did not prepay for an additional night in the room.  Hotel staff called the Defendant to request payment but the Defendant did not comply with the request.  Despite this repeat nonpayment the hotel did not deactivate the Defendant's room card. 

The official hotel policy is to require guest to prepay room charges by 11:00 A.M. for the following day.  However the management of this particular hotel location followed an unofficial policy of not acting on the first failure of a guest to pay, but taking some action in the event of a second failure of a guest to pay.

Early in the morning on the day after the defendant's second failure to pay for his room, a hotel staff member heard a loud noise and smelled the odor of marijuana emanating from the defendant's room.  These observations combined with the defendant's failure to pay rent a second time and complaints about the defendant made by other hotel guests led the staff member to evict the defendant.  The staff member called the police to request assistance with the eviction.  State troopers responded to the request.

The staff member, with the troopers by her side, knocked on the defendant's door several times.  After the Defendant opened the door he attempted to close it immediately, but a trooper stepped into the doorway and prevented the door from closing.  The staff member identified herself to the defendant and indicated that the hotel required him to pack his belongings and leave the premises.  The trooper, noting the smell of burnt marijuana, asked the defendant about the odor.  The Defendant admitted to having smoked marijuana in his room.  The trooper noticed a black scale with white powder on top of it and bundles of money near a suitcase inside the room.  The trooper asked the Defendant about the scale and the money, and the defendant admitted that the money belonged to him but did not admit that the scale belonged to him.  At this point the troopers entered the room and seized cocaine, marijuana, joints, and MDMA.

The Second Department cited its precedent in People v. Lerhinan, 90 A.D.2d 74 (2d Dept. 11/22/1982), for the premise that nonpayment of hotel rent terminates any reasonable expectation of privacy in a hotel room.  However, unlike the defendant in Lerhinan who did not have an arrangement with the hotel for an extension of credit, the defendant here was permitted to pay for a previous night on the following morning.  Although this allowance was unofficially a one time boon, there was no indication that the Defendant was aware of the official or unofficial hotel policy.  Furthermore, the hotel's failure to disable the defendant's room card or to take steps to evict the defendant prior to the loud noise and odor, indicate that the hotel intended to allow the Defendant to stay the night.  On these grounds, the Second Department held that the County Court erred in finding the rental period had expired at the time of the search.

Turning to the circumstances of the eviction, the Second Department found that the complaints, noise, and odor of marijuana gave the hotel good cause to evict the Defendant.  When the hotel staff member took the justifiable affirmative step of contacting the police to assist in evicting the Defendant, the Defendant's expectation of privacy in the hotel room was extinguished.  The police were justified in searching the room because the trooper observed white powder on a scale in plain view during the eviction.  Thus at the time of the search the Defendant did not have any reasonable expectation of privacy in the hotel room because he was being justifiably evicted.  As such, the denial of the Defendant's motion to suppress the evidence recovered was affirmed.  (MM/LC)

Emergency exception to the Fourth Amendment

In People v. Leggett (2d Dept. 7/20/2010), the defendant barricaded himself in a friend’s apartment using appliances to block the door.  The police were concerned that the defendant might cause a gas leak if he moved the stove.  Thus, the police forced open the door, which was blocked with a refrigerator, and found the defendant in possession of three handguns and ammunition.  The defendant was arrested and, after denial of a motion to suppress physical evidence, pleaded to CPW 2° and four counts of CPW 3°.  On appeal, the defendant contended that the denial of his motion to suppress physical evidence was improper.

The Court of Appeals in People v. Mitchell, 39 N.Y.2d 173, cert. denied 426 U.S. 953 set forth a three prong test for analysis of the emergency exception to the Fourth Amendment against warrantless searches and seizures:

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 an intent to arrest and seize evidence; and
3. There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

However the United States Supreme Court determined in Brigham City v. Stuart, 547 U.S. 398, 404 that "[t]he officer's subjective motivation is irrelevant" to Fourth Amendment analysis, thus an inquiry into the subjective motivations of the police is no longer necessary in determining whether that Amendment was violated.

In affirming the trial court’s denial, the Second Department held, "Here, the objective facts observed by the police provided them with a reasonable basis to believe that an emergency was at hand, that the defendant or other persons may have been at risk of injury, and that the emergency was associated with the apartment searched." (MM/LC)

Blocking exit from parking lot constitutes a stop

In People v. Lopez (2d Dept. 7/20/2010), police officers in an unmarked car pulled in front of a vehicle occupied by the defendant in a parking lot behind a bar.  The police approached the vehicle, shined a flashlight inside, and observed the defendant holding what the arresting officer believed to be a bag of cocaine and a bag of marijuana.  The police removed the defendant from the vehicle and placed him under arrest.  The defendant then made incriminating statements to the police and was subsequently convicted by a jury of CPCS 5°, CPCS 7°, and Unlawful Possession of Marihuana.

The defendant appealed his conviction on the ground that the trial court erroneously denied his motion to suppress physical evidence and his statements to the police.  The Second Department reversed and held that the conduct of the police in pulling in front of the defendant's vehicle, and blocking his ability to exit the parking lot, constituted a stop, which required reasonable suspicion that the defendant or other occupants of the vehicle were either involved in criminal activity or posed some danger to the police.

The circumstances of the defendant's presence in the car were "capable of numerous innocuous explanations, and cannot be characterized as suspicious conduct."  Accordingly, the Second Department held that the stop was illegal and the resulting fruits of that Fourth Amendment violation---namely, the physical evidence and statements---should have been suppressed.  (MM/LC)

Fifth Amendment not violated by surreptitious evidence gathering

In People v. Gibson (4th Dept. 6/11//2010), the defendant was convicted of Robbery 1° stemming from DNA evidence found on a cap worn by the perpetrator a short distance from the scene of the robbery.  The investigating officer obtained a sample of the defendant’s DNA, for comparison to the DNA found on the cap, while the defendant was in custody on an unrelated matter.  While in custody, the defendant asked to speak to the officer because they were familiar with each other from prior dealings.  During the meeting in the investigator’s office, the investigator offered the defendant a cigarette.  The defendant smoked the cigarette and left the remains in an ashtray.  The investigator obtained a sample of the defendant’s DNA from this discarded cigarette. Later testing revealed a match to the DNA on the cap worn during the robbery.

The defendant appealed his conviction on the ground that the trial court erred when it refused to grant his motion to suppress the DNA evidence obtained from the cigarette.  The defendant argued that his Fifth Amendment right to counsel was violated because his attorney was not present during the incident where the sample DNA was collected.  Furthermore, the defendant argued that his Fifth Amendment right against self-incrimination was violated by the surreptitious seizure of his DNA.

The Fourth Department rejected the defendant’s arguments with support from the Court of Appeals and the Supreme Court.  As established in Schmerber v. California, 384 U.S. 757, 761 (1966), Fifth Amendment rights do not apply to evidence that is not “testimonial or communicative” in nature.  The Court of Appeals has explained that evidence is testimonial or communicative when it reveals a person’s subjective knowledge or thought process.  The Fifth Amendment thus does not protect an accused from producing real or physical evidence.  After holding that the defendant’s right against self-incrimination was not violated, the Fourth Department inferred that the derivative right to counsel was not violated either.

Judge Green dissented, arguing that the evidence was obtained in violation of the defendant’s right to counsel.  While the defendant was in custody on matters unrelated to the robbery investigation, he was represented by counsel, consequently he could not be interrogated on any matter related or unrelated to the represented matter without counsel.  The dissent noted that the investigating officer was aware that the defendant was represented by counsel, and argued that the scheme to obtain the defendant’s DNA without consent and without counsel’s awareness was in violation of the defendant’s constitutional rights. 

The dissent, however, did not indicate how it was that the defendant was "interrogated" by the seizure of the cigarette.  This is the critical distinction under the Fifth Amendment.  

We are likely to see more of these types of cases and issues as police departments make expanded use of DNA evidence in non-homicide crimes.  (MM/LC)

Police afforded more discretion to use canine drug sniffs during automobile stops

The New York Court of Appeals, in two cases involving the use of drug sniffing dogs during automobile stops, held that a “founded suspicion,” instead of the higher, more demanding "reasonable suspicion" standard, justifies an exterior canine sniff search of an automobile. Additionally, a canine sniff search of the exterior of an automobile does constitute a "search." 

In People v. Devone (Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle for cell phone use. The officers discovered that a male driver was operating a car registered to a female. After being ordered to exit the vehicle, police officers conducted a canine sniff search due to the “suspicious inconsistencies” in the driver's answers to various questions. After being signaled by the dog of the possibility of drugs, the officer found a quantity of crack cocaine in the seating console. The Appellate Division reversed the trial court's order suppressing the evidence and held that the police needed only a "founded suspicion" as opposed to a reasonable suspicion to conduct the canine sniff on the exterior of the vehicle. 

In People v. Abdur-Rashid, a companion case, an individual was pulled over twice in one day for driving without a front license plate and having an expired inspection sticker. The second officer observed the defendant become anxious and ask to be let go since he was already stopped that day. When the officer questioned the passenger in the car, who claimed that he was only there trying to keep the driver awake and alert during their trip, the officer became suspicious and retrieved his drug sniffing dog. After being “alerted” by the dog, the officer found a black duffel bag in the trunk filled with two freezer bags of cocaine. 

The Court of Appeals held that “founded suspicion" was present in both of these cases. The majority justified this lower standard, maintaining that an individual has a lower expectation of privacy in an automobile than in his or her home. Given this lowered expectation combined with the fact that the canine sniff is less intrusive, the founded suspicion standard was appropriate.

Judge Ciparick dissented, arguing that a reasonable suspicion standard should be met before a canine sniff is conducted. There is an expectation of privacy in portions of a vehicle not visible with the naked eye.  Thus, probable cause is generally required for those areas.  Thus, the dissent argued there should not be a difference between a dog sniff outside of a home (which is not allowed under People v. Dunn) and a sniff outside of a car.  The dissent added that because drug sniffing dogs are trained for just that—drug sniffing—that those dogs would not have helped the officers ascertain whether the vehicle was stolen. Thus, the drug sniffing dogs served no purpose related to the stop itself; rather, the canines were used to engage in a fishing expedition for unrelated evidence.

Additionally, the dissent emphasized that the policy justification behind distinguishing between vehicular and residential privacy—practical concerns surrounding expediency—were not present here. Finally, the dissent pointed to New York's strong tradition of protecting its citizens from unreasonable searches as a justification for a higher standard.  (RB/LC)

COA, AD1, AD2, & AD3 - New Decisions

The Court of Appeals posted new decisions today:

• People v. Acevedo (Ct. App. 4/29/2010) - DLRA resentencing does not allow alteration of consecutive/concurrent nature of sentences originally imposed
• People v. McBride (Ct. App. 4/29/2010) (Pigott, J.) - exigent circumstances for warrantless entry into home

In addition, there are new decisions from the First, Second, and Third Departments.  (LC)

AD4: Consent exception not proven

In People v. Forbes (4th Dept. 3/19/2010), the defendant was convicted of Robbery 1º.  On appeal, he contended that the Supreme Court erred when it denied his motion to suppress tangible property the police retrieved during the warrantless entry and search of his home. 

The record of the suppression hearing revealed that the police officers went to the defendant's home in order to take him into custody for questioning. The People relied on the consent exception for the subsequent entry into the defendant's home.  However, the hearing testimony indicated that when the officers arrived at the defendant's residence and asked him for his identification, they immediately entered the defendant's home without waiting for a response or asking permission to come in.  Therefore, they never obtained the defendant's consent, no exigent circumstances existed, and the tangible property was fruit of the unlawful entry and should have been suppressed.  (DAL/LC)

Sometimes pro se supplemental briefs are winners

It is not often that a pro se supplemental brief --- a brief filed by the defendant himself, raising claims not asserted in his appointed attorney's brief --- persuades a court.  After all, if the arguments were winners, appointed counsel probably would have made them, right?  In People v. Layou (4th Dept. 3/19/2010), the Fourth Department unanimously reversed a defendant's conviction based, in part, on arguments the defendant made in his pro se supplemental brief.

At the time the defendant was approached by police, he was sitting "in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of burglary that the police were investigating[.]"  Subsequently, an officer pulled into the lot behind the defendant's vehicle.  The police vehicle prevented the defendant from driving away.  Defendant later made certain statements to police, who searched the defendant and found cocaine.  At trial, the defendant was convicted of CPCS 7º, Obstructing Governmental Administration 2º, and Resisting Arrest.

The defendant argued that police "seized" his vehicle by pulling behind him in the parking lot; the defendant further argued that the police lacked reasonable suspicion for this seizure.  Therefore, the defendant concluded, the trial court erred by refusing to suppress the fruits of the seizure, including the cocaine and the defendant's statements to police.  Considering that (1) the police did not observe the defendant engage in "any conduct indicative of criminal activity" at the time of seizure; (2) the complainant reporting the burglary "did not mention that the burglars fled in a vehicle;" and (3) the police "had no other information ... connect[ing] the defendant ... with the reported burglary[,]" the court agreed with the defendant.

Additionally, the defendant's appointed attorney argued in his primary brief that the cocaine should have been suppressed because of "deficiencies in the chain of custody."  Here again, the court agreed, noting a month-long gap in the chain of custody for which the People had failed to provide an explanation.  While noting that "reasonable assurances of the identity and unchanged condition of the evidence" may revive the admissibility of evidence with gaps in the chain of custody, the court also noted that the People provided no such assurances here.  Accordingly, the Fourth Department unanimously reversed the defendant's convictions, dismissed the indictment, and remanded the matter to the Oswego County Court.  (JTR/LC)  

AD2 denies People's appeal from defendant's successful motion to suppress

In People v. Cadle (2d Dept. 3/2/2010), the People appealed from an order from Kings County Supreme Court. On March 30, 2009, that court uphold the defendant's motion to suppress physical evidence arresting officers obtained during his arrest. 

 On the date of arrest, plain clothes officers observed the defendant holding his waistband in a "high-crime" area. The officers stated that the defendant appeared to be alarmed, as if he was "afraid of something."  After viewing the officers, who were in an unmarked car, the defendant ran away. The officers pursued the defendant. During this pursuit, he discarded a gun.

The court held that the officers' pursuit of the defendant was illegal, and the defendant's actions—including discarding the gun—were directly related to this unlawful conduct.  The court did not have reasonable suspicion that the defendant was carrying a gun.  Merely touching one's waistband and acting nervous are not sufficient to justify a pursuit and stop.  The physical evidence was therefore properly suppressed.   (LC)

AD4 splits 3-2 over De Bour issue

In People v. Riddick, federal and local law enforcement officers in a van observed defendant with two other individuals at a street corner known for "violent gang activity."  The driver of the officers' van pulled up to the defendant, rolled down his window, and told the defendant to leave the area.  The defendant then "reached for his waistband and walked away from his companions[,]" before fleeing.  The officers pursued the defendant and recovered a discarded handgun during a subsequent search of the defendant's path.  The motion court refused to suppress the recovered handgun and defendant's statements made after the pursuit.  The defendant pleaded guilty and subsequently appealed.

In its analysis, the majority considered the relevant De Bour stages of police encounters.  Regarding the initial relevant De Bour stage, the majority held "that the police had an objective credible reason to approach [the defendant] and to request information in light of the late hour, the cold weather, the absence of other . . . traffic, and the presence of the men in a high crime area."

Regarding the second relevant De Bour stage, the majority first considered that, while the defendant's flight alone was insufficient to justify pursuit, flight in combination with "other specific circumstances indicating that the suspect may be engaged in criminal activity" may give rise to the necessary reasonable suspicion for the police to give lawful pursuit.  The majority  held that the defendant's reaching for his waistband and subsequently fleeing from police did not "establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime."  In so holding, the majority noted "'that actions that are 'at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality'" (quoting People v. Powell, 246 A.D.2d 366, 369 (1st Dept. 1998)).  Using this rule, the majority reasoned that "absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion[.]" 

The majority also supported its holding by concluding that "the evidence presented at the suppression hearing was insufficient to establish that defendant knew that the individuals who approached him in the unmarked vehicles were police officers."  Preliminarily, the court considered and concluded that the defendant preserved the argument of the sufficiency of evidence at the suppression hearing.  In considering the record of the suppression hearing, the majority seemed to draw an adverse inference from the absence of testimony from the driver of the officers' van, since the driver "was in the best position to testify concerning the visibility of the police markings on his clothing[.]"  Additionally, the majority discounted as "mere speculation" the testimony of a passenger in the van asserting that the defendant knew the persons in the van were police officers.

Because the majority concluded that the handgun and defendant's subsequent statements to officers should have been suppressed, the court vacated the defendant's guilty plea and ordered the indictment to be dismissed.

The dissenters disagreed with the majority in regard to the preservation issue, noting that the defendant presented a different theory to support his sufficiency argument on appeal.  In regard to the merits of the defendant's contentions, the dissent argued that "reasonable inferences to be drawn from [the officers'] testimony support the conclusion that defendant was aware that [the individuals inside the van] were police officers."  Additionally, using a totality of the circumstances analysis, the dissent argued that the defendant's reaching for his waistband before fleeing created reasonable suspicion.   (JTR/LC)

AT2 holds that probable cause is determined from objective analysis of facts

In People v. Crane (App. Term, 2d Dept., 1/27/2010), the Second Appellate Term reversed an order of the Justice Court of the Town of New Windsor, which had granted the defendant's motion to suppress.  The defendant had been stopped by a trooper for various traffic infractions.  During the course of the stop, the trooper noted that the defendant's speech was slurred and that the defendant smelled of alcohol.  The trooper also observed that the defendant's eyes moved rapidly and that the defendant was unable to complete two field sobriety tests successfully.  Subsequently, the trooper arrested the defendant for DWI and related traffic infractions.

The Justice Court held a Mapp/Dunaway hearing and determined that, while the trooper had an "adequate predicate" to stop the defendant's vehicle, the People had failed to establish probable cause to arrest the defendant.  In so holding, the Justice Court relied principally on the trooper's opinion that the defendant might have been under the influence of alcohol. In other words, the court said, the trooper had "reservations" about probable cause.

However, the Appellate Term held that Justice Court's reliance on the subjective opinion of the trooper was wrongly placed.  Rather, Justice Court should have examined "whether a reasonable person with the trooper's expertise, and in the trooper's position, would have had probable cause for the arrest."  A suppression court must determine the existence of probable cause from an objective analysis of the relevant facts, rather than from a witness's subjective conclusion about whether probable causes exists.

Applying this test to the facts as recorded from the Mapp/Dunaway hearing, the Appellate Term found that probable cause existed to arrest the defendant for DWI.   (JTR/LC)

Suppression issue splits AD1

Last week, People v. Reyes (1st Dept. 1/28/2010) drew a 3-2 split from the First Department.  At issue was whether the police had reasonable suspicion to attempt to forcibly detain and then pursue the defendant.  The police had received a vague radio dispatch "about a dispute with a knife" at a location.  There was no description of the alleged perpetrator.  When the police arrived at the scene, two men pointed to the defendant and said, "That's him, that's him."  The officers approached the defendant, attempted to apprehend him, but he resisted and fled.  Eventually the police tracked him to an apartment, kicked in the door, and arrested him.  Later, they learned that the defendant had stolen lottery tickets from a store.  The two men who pointed at him were the store's owners.  They informed the police that the defendant returned with winning tickets and pointed a gun at them when they refused to pay out.

The majority held that "the officers lacked valid grounds to forcibly detain defendant on the street and then pursue him when he fled."  Specifically:

When the officers arrived at the scene, no criminal activity was in progress. They arrived knowing only that a 911 call had been received about a vaguely described dispute with a knife; they lacked a description of the suspect and did not know who had called the police. The two unidentified men they encountered pointed out defendant without accusing him of any specific acts. Neither defendant's knife nor his imitation revolver was visible to the officers, and he was not engaged in any suspicious activity.

Under these circumstances, the officers would have been justified in conducting a [DeBour] level one inquiry by attempting to question defendant to clarify the situation, or in conducting a level two inquiry under the founded suspicion that defendant was involved in criminal activity. However, the officers' attempted detention of defendant when he tried to leave the location and their pursuit of him into the apartment building constituted an unjustified level three forcible seizure because the police lacked reasonable suspicion that defendant had committed a crime.

In dissent, Justice Buckley held that the unsolicited, accusatory pointing and statement, "That's him, that's him," was sufficient to give the police reasonable suspicion to detain the defendant. 

On balance, I agree with the majority, but I am troubled by the inevitable question, "What should the police have done?  Let the defendant get away?"  In response, I would say that the defendant did not flee until after the police approached him.  They could have quickly approached the two men, ask them why they were gesturing at the defendant, and then approach the defendant.  If the defendant then fled, or if he fled during the conversation with the store owners, the police would have been justified in pursuing the defendant.  As the majority notes, they could have also gone up to the defendant and engaged in a level one inquiry.

In my view, the fault here lies not with the police but with the 911/NYPD dispatcher, who either did not ask the caller what the dispute was about or did not communicate sufficient information to the patrol officers.  Had the police received slightly more information, the search may have been constitutional.

Part of the trouble with this case is that we know a lot more information about the defendant after the search than before it, and one's ex ante analysis can be clouded by information learned ex post.  After the search, we know that the defendant probably committed a theft, menacing, and weapons possession.  We thus know why the two men were pointing at the defendant.  We also know that he was armed (the search revealed a gravity knife and imitation revolver).  But from the officers' perspective before the search, they knew only that there had been a dispute and that two men were pointing and yelling at the defendant.  For all they knew, they may have been pointing at the defendant for a reason unrelated to the subject of the 911 call.  (LC)

Flashing brights does not give cause for car stop

In People v. Rose (4th Dept. 11/13/2009), a unanimous panel of the Fourth Department concluded the police lacked reasonable suspicion to stop the defendant's vehicle after the driver flashed its brights while an oncoming car approached.  The court noted the general rule that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' . . . or where the police have probable cause to believe that the driver . . . has committed a traffic violation'."  Here, the police officer relied on VTL § 375(3), which he claimed prohibited the flashing of brights.  The court concluded, "Section 375(3) actually provides in relevant part that, 'whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . .' The mere flashing of lights, alone, does not constitute a violation of the statute."  Since the officer operated on a mistake of law, suppression was required --- a result with which I agree.

However, the court's recitation of the law omits a key component of the rule, in my opinion.  Police do not just enforce the law; they also serve a community caretaking function (rescuing cats from trees, helping car accident victims, giving directions, etc.).  There are certain situations in which a traffic stop could be justifiably based on the community caretaking function.  For example, a person flashing their brights might be trying to signal distress of some kind.  Perhaps there is a kidnapper with a loaded gun in the passenger seat.  Or maybe the driver needs medical attention and does not have a cell phone to call an ambulance.  For whatever reason, the flashing of brights might be a signal for help.  If the objective circumstances support that conclusion, the officer should be able to make a limited stop.  Nevertheless, since the officer in Rose explicitly testified that he stopped the car because he thought the driver violated the VTL, it is purely an academic question in this case and the court reached the right result.  (LC)

Transportation to police station amounts to de facto arrest

In People v. Gayden (4th Dept. 11/13/2009), the police suspected the defendant of participating in a burglary.  He was first interviewed at a hospital, where he was being treated for a gunshot wound.  He claimed that he was the victim of a robbery.  A few weeks later, the police went to his residence and asked him to take them to the scene of the alleged robbery. The defendant agreed to do so and there was no dispute on appeal that this was consensual.  Once at the purported crime scene, the "officers then transported defendant to the police station," where the defendant gave incriminating statements. 

The Fourth Department concluded that the transportation of the defendant to the police station amounted to a de facto arrest.  "[T]he People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station."  (LC)

Conviction reversed on suppression grounds

Today, the First Department reversed the conviction in People v. Bethea (1st Dept. 11/12/2009).  Plainclothes police observed the defendant on a streetcorner known for prostitution and drug activity.  When the defendant made eye contact with them, he turned and walked away.  The police identified themselves and told him to stop, but he continued walking.  One of the officers began running towards the defendant.  As he approached, the defendant appeared to put something in his mouth.  Another officer told the defendant to open his mouth; he removed the bag, which fell into the defendant's hands.  A struggled ensued.  Eventually the bag was recovered.

The court held the police lacked reasonable suspicion for the pursuit because the defendant's conduct, which amounted to walking away, was not sufficiently incriminating.  The subsequent placement of the drugs into the defendant's mouth did not justify the pursuit that preceded it.  (LC)