Arrested for Drug Possession in New York: Criminal Lawyer Analysis of Overzealous Police Searches

Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs – heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.

In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a “crime,” (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).

So, let’s get to the facts of Pinckney. Officer Gomez arrived to the scene of car accident in the Bronx. He observed the defendant, Sincere Pinckney, speaking with another male by the cars and when he approached heard the defendant say “I’m sorry, I just moved the car.” Gomez spoke with other witnesses who identified the defendant as the person responsible for the accident–swiping three vehicles parked beside the curb. Therefore, Officer Gomez went back to question the defendant, and saw that the defendant had his hands in his pockets and asked him to remove them. When the defendant removed his hands two bags of marijuana fell out and then Officer Gomez patted down the defendant and asked for defendant’s license. The defendant did not have a valid license.

Now People v. De Bour, 40NY2d 210, establishes the basic framework for measuring the intrusiveness of a police action in New York. The first level of intrusion permits an officer to approach a citizen and request information provided there is an objective, credible and articulable reason to do so. The second level permits a momentary stop when there is a “founded suspicion that criminal activity is afoot.” Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor. Lastly, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime. Here, Officer Gomez asked if the defendant had a license–a permissible level-one inquiry. The officer had the basis for requesting this information because of the accident and the witnesses who saw the defendant swipe the other cars. However, the court in Pickney believed that asking the defendant to take his hands out of his pockets was a level-two inquiry. There was no indication that Officer Gomez suspected the defendant of any criminal activity upon approaching him; Gomez knew that there was a minor auto accident and that the defendant may have caused it, but as the court put it “a fender-bender, however, by itself, does not on its own suggest criminality and discretion is required.”

As a result of the court’s analysis above, the intrusion by Officer Gomez was illegal and the marijuana bags that fell to the ground were ruled inadmissible evidence. The recovery of all three bags containing marijuana was a direct result of unlawful police conduct, and therefore the Unlawful Possession of Marijuana charge was entirely dropped.

This case is a great illustration of the framework for police intrusions and something to be discussed with your own New York criminal lawyer should it be applicable to the allegations in your case. It is important to know your rights when dealing with the NYPD as well as prosecutors. Although it is not as easy as merely asserting a violation, of those individual rights are violated and/or guidelines ignored, the fruit of such an intrusion- the evidence- will not be admissible in a criminal trial.

Representing those accused of drug, narcotics and marijuana crimes throughout New York City as well as the suburbs, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys Office before establishing the defense firm. To educate yourself further about New York criminal laws, including those involving marijuana or controlled substances, please follow the highlighted links above or below.

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