Search And Seizure Matters

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 locations.

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.


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