New York law says that police can't stop a person on a whim or hunch.
In theory, most people would agree that is a good thing. Nobody i know
wants Mr. Patrolman stopping them, just to say hello. Our Founding Fathers
drafted the Fourth Amendment to the Constitution, which protects people
from unreasonable searches and seizures. Over the last 200+ years lawyers
and courts have spend countless hours determining what the Fourth Amendment
actually means when police take certain actions.
For prosecutors and police bad stops and searches rear their head at the
most inopportune moments. The fact is that searches are only litigated
in court after a criminal defendant has been arrested. Usually after a
stop and search a criminal defendant is found in possession of something
that is illegal, like drugs or illegal guns. In other cases a bad stop
leads to personal information about a defendant that is used to identify
or link the person to another crime.
For example, I recently represented a man accused of burglary and
sexual abuse at a probable cause hearing. He was stopped by police a day after the
alleged crime in the general neighborhood because he fit the age and size
description given by the complaining witness. When the police stopped
him he fled and got away, except that the police located a photo ID, which
eventually linked him to the crimes. It was my position that the police
did not have the legal right to stop and certainly not chase him and everything
they discovered because of the conduct should therefore be suppressed
(can't be used by the prosecutor).
Other search and seizure questions stem from warrants executed by police.
A warrant is a piece of paper that allows police to search for something
in a location they normally wouldn't be able to go with a judges permission.
The most common place for police to execute a warrant is a suspected criminal's
home, but businesses, cars and and known hangouts are also normal. A judge
will sign a warrant when the police have satisfied him that there is evidence
of illegal behavior that justifies the intrusion into otherwise protected
In my opinion the search and seizure litigation is incredibly interesting
because of the extreme outcome in the case of police misconduct. New York
follows the "fruit of the poisonous tree doctrine" which says
that any product of police misconduct cannot be used. What this means
is that everyone involved in a case can agree that a criminal defendant
is guilty, but they may go free because the police made a mistake. For
example, I represented a young man that was stopped for pulling out of
a parking lot without a signal, he was then found to be intoxicated. The
evidence of his intoxication was suppressed because a signal is not required
when leaving a parking lot, so the initial stop was determined to be illegal.
Another case I had involved a car being parking in a parking lot after
hours. when the police showed up the car started to drive away and the
officer stopped him - finding cocaine and heroin in the car. The Judge
ruled there was no reason to stop the car and the case was dismissed.
It is a constant battle between whether a guilty person should be punished
despite misconduct by the police. Courts have continuously and consistently
said that if evidence against a criminal is the result of the police doing
something wrong it can't be used against them. Sometimes the result
can seem unjust, in favor of a criminal. For example a person found with
several kilo's of cocaine that gets off because there wasn't a
wax seal on the application for the wiretap. When people complain about
someone getting off on a technicality - I urge you to ask them to consider
what would happen if we lived in a society where there was no recourse
for police misconduct.
If you have any questions about your case,
contact our Rochester criminal defense attorneys.