Tinted Windows Defense: Challenging an Arrest and the “Fruits” of a Potentially Unlawful Search

Those who have never been accused of a crime often fail to recognize the value or importance of the criminal defense lawyer to the justice system. Some even have pretty nasty things to say about the defense bar. Having said that, when the police wrongfully arrest a person who may have not committed a crime, people are mortified. Sadly there is a disconnect. But for the advocacy of a criminal lawyer, the abuse, fraud or simple and honest mistake on the part of law enforcement may have gone unnoticed. People v. Wilfegher Dumay, 2012KN024855, NYLJ 1202575279850, at *1 (Crim., KI, Decided October 4, 2012), exemplifies these issues and the importance of a criminal lawyer who wants to do more than merely attempt to work out a “deal.”

In Dumay, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511.1) an unclassified misdemeanor. In sort, the defendant was allegedly driving with a suspended license. The defendant argued first that there was no reasonable suspicion to stop Dumay’s car. Alternatively, the defendant sought a hearing (often called a “Dunaway Hearing”) to challenge the probable cause to stop the defendant’s vehicle and suppress the evidence obtained as a result of an illegal stop and search. More specifically, the DMV abstract or record of the defendant’s suspension. Although the court denied to motion to dismiss, for the reasons stated below the court granted the hearing to determine whether or not probable cause existed to stop and arrest the defendant.

The Facts

The police stopped Dumay on a Brooklyn street and determined that the defendant’s license to drive had been suspended. It was alleged by the defense that the basis for the initial stop was not due to a suspension because of excessive window tints. Despite this reasoning, the defendant claimed that no window tint test was performed at the scene to corroborate or confirm the excessive tints. Further, the defendant asserted in his motion to the court that the vehicle had factory-installed windows (uh oh…someone is not telling the truth here…). As such, the defendant was arrested without any probable cause. In response, the People asserted probable cause did in fact exist.

While the Court did not dismiss the case, the Court did grant hearings pursuant to the Appellate Term decisions in Sajous and Moya.

Now for the “cut and paste” addressing the court’s decision —

In Sajous, the lower court had ordered a hearing pursuant to People v. Dunaway, 442 US 200, 99 S Ct 2248, 60 L Ed2d 824 (1979) and Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961). The People argued, and the Appellate Term agreed that “defendant had no standing to seek suppression of the DMV abstract…(since)…Defendant has not established a legitimate expectation of privacy in the DMV file searched.” 180 Misc2d at 694, citing People v. Ramirez-Portoreal, 88 NY2d 99, 108, 643 NYS2d 502 (1996 ). See, also, Moya, 4 Misc3d at 102 (“(D)efendant failed to establish a privacy expectation in his DMV abstract, a public record compiled independently of the police conduct challenged here…(a)ccordingly, we reaffirm our determination in People v. Sajous (citation omitted) that absent a cognizable privacy interest in DMV records, a defendant lacks standing to demand their suppression.”)

In Moya, however, the Appellate Term noted that they “did not reach the issue of whether the records would be admissible in the event of a Fourth Amendment violation since the lawfulness of the stop was conceded.” 4 Misc3d at 102.

Unlike the defendant in Moya, this Defendant asserts a Fourth Amendment violation and seeks to contest the facts alleged by the People which led to the stop of his vehicle. As noted above, the People assert that the arresting officer “stopped (Defendant’s) vehicle for…excessive window tints.” See People’s Response dated August 30, 2012, p 2, para 6. For his part, Defendant asserts that “no window tint test was performed by the officer on the scene, and the Defendant was driving a vehicle with factory-installed windows.” See, Defendant’s motion dated May 30, 2012, p 5, para 10.

Therefore, under the specific circumstances of this case, a hearing is ordered, pursuant to Sajous and Moya, at which the parties are directed to present evidence regarding the issue enumerated above.

While the ultimate outcome of the hearings is unknown, the principle is clear.

To learn more about New York vehicle and traffic crimes such as Aggravated Unlicensed Operation of a Vehicle and Drunk Driving or New York DWI laws, review this blog or our CrottySaland.Com website.

A New York criminal defense firm representing clients of all traffic crimes including DUI and Aggravated Unlicensed Operation of a Vehicle, the New York criminal lawyers at Crotty Saland PC both served in the Manhattan District Attorney’s Office’s DWI Unit prior to starting the law firm.

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