Thursday, May 14, 2009

Warrant Required for Police to Place a GPS Device on Someone's Vehicle

By a 4-3 vote, the Court of Appeals held in People v Weaver (5/12/09) that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. An excellent summary and analysis of Weaver can be found at New York Court Watcher.

A contrary holding would mean that police without warrants or cause could attach such devices to all vehicles in New York and record the minute by minute location of every vehicle. There may be places where that is acceptable. Thankfully, New York is not one of them.

Sunday, May 3, 2009

Counsel Must Be Very Specific In Denying Police Allegations

Sometimes the lasting parts of a court decision come in the seemingly throwaway lend of the decision in which a court considers one final issue. That seems likely to to be the case with the decision of the the court of Appeals in People v Mattocks (_ NY3d _, 2009 NY Slip Op 03408[4/30/09) a decision which mostly addresses whether creasing a Metrocard to fool the card reader into allowing unpaid swipes constitutes forgery. While that might be an important and recurring issue for those who practice in New York City, the rest of us might be tempted to skip the decision. That would be a mistake because, after dealing with the forgery issue at length, the the Court upheld the denial of Mr. Mattocks' suppression motion on reasoning that might come to haunt defense attorneys throughout the state. Specifically, the Court of Appeals held that the Supreme Court did not err in denying a probable cause motion without a hearing, because it found that that the defendant's motion papers did not sufficiently challenge the People's papers alleging probable cause to arrest. The insufficiency is not one that is immediately obvious.

The police officer averred that he had observed the defendant appear to illegally swipe three people into the subway in exchange for money from subway riders. The defendant alleged in his motion papers that he was merely been "speaking with various neighborhood acquaintances.."

Sounds like a denial. He did not, however, specifically challenge the assertion that he had been selling swipes, although he appeared to implicitly do so by his statement that he had merely been chatting with people he knew. The Court of Appeals
determined that the defendant's motion papers, thus, had failed to create a factual dispute on the question of whether he had been seen selling swipes and was thus not entitled to a probable hearing on the issue.

Lesson: It is important for attorneys to plainly and unequivocally contest
the People's allegations in their motion papers justifying the lawfulness
of police conduct. If necessary, attorneys should file supplemental papers
to expressly and specifically contest the People's allegations. The failure to do so might result in your client be denied a suppression hearing and for the attorney to be accused (with cause - not that we know what is required) of ineffective assistance of counsel.

What is the Remedy When a Prosecutor Insists a Defendant Wear Jail Garb When Testifying Before a Grand Jury?

In People v Buccina (2009 NY Slip Op 03568 [4th Dept 5/1/09])the Appellate Division, Forth Department rejected the contention of defendant that he was denied his right to testify before the grand jury where defendant refused to testify before the grand jury after he was informed that, pursuant to the policy of the jail where he was confined, he would not be allowed to change into street clothes before being transported to the grand jury.

The Court reasoned that

Inasmuch as defendant chose not to testify before the grand jury, it cannot be said that he was denied his statutory right to do so (see CPL 190.50 [5]). Further, to the extent that the policy of refusing to allow defendant to testify before the grand jury in street clothes relates to the integrity of the grand jury proceeding (see CPL 210.35 [5]), we note that, by his own conduct in refusing to testify, defendant has rendered it impossible for us to determine on the record before us whether such a policy "fail[ed] to conform to the requirements of article [190] to such degree that the integrity [of the grand jury proceeding was] impaired and prejudice to the defendant may [have] result[ed]" (CPL 210.35 [5]).

So if he did testify, would any error in the policy have been deemed harmless because he testified? If not, how could the Court determine from the Grand Jury record how the defendant was prejudiced by the policy? Phrased differently, if the policy if illegal, is there any remedy available to one whose rights are violated by such policy?

Plea Premised on Mutual Mistake Vacated

In People v Grey (2009 NY Slip Op 03570 [4th Dept 5/1/09]), the Appellate Division, Fourth Department reversed a conviction because the plea was based on a mutual mistake. Specifically, the

record establishes that Supreme Court erroneously assured defendant that he would retain the right to appeal with respect to the propriety of the court's refusal to dismiss the indictment based on the denial of defendant's right to testify before the grand jury pursuant to CPL 190.50 (5), and defendant relied on that erroneous assertion. We thus agree with defendant that the court abused its discretion in denying his motion because, in fact, the contention of defendant that he was denied his right to testify before the grand jury was forfeited by the plea (citations omitted).

Belton Effectively Overruled

Perhaps the most important criminal law decision issued so far this year, was that of the United States Supreme Court in Arizona v Gant, — U.S. —, 2009 WL 1045962, in which the Court effectively (although not admittedly) overturned its holding in New York v Belton, 453 U.S. 454 (1981) regarding the permissible scope of incident of arrest searches when a person is arrested in an automobile.

In 1999 Rodney Gant’s car was searched after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car. With several officers at the scene, officers found cocaine in Gant’s car during the search.

The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

In a majority opinion by Justice Stevents,who dissented in Belton and is the only still serving member from the Court which decided Belton, the Court held that adherence to Belton was based on faulty assumptions which could "authorize myriad unconstitutional searches." Stevens wrote that the only exception to law enforcement being required to obtain a warrant prior to a search involved:

"... only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. . . . [w]e also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

Thus, the holding of Chimel v California (395 US 752 [1969]), continues to be good law, insofar as the search incident to arrest can be justified by the suspect’s ability to lunge to an area and destroy evidence or reach a weapon. However, once the suspect is handcuffed and moved away from the vehicle, the suspect’s ability to reach evidence or a weapon is eliminated, or at least significantly reduced, and the vehicle cannot be searched without a warrant, under an incident to arrest exception to the arrant requirement.

By the way, the key vote was that of Justice Scalia who wrote a concurring decision stating that although he agreed with the four dissenting justices that,in fact, this new decision was overturning Belton, something denied by Justice Stevens' decision, he thought that Belton was wrongly decided and should be overturned. Thus, he joined the Stevens' opinion.