Tuesday, February 26, 2013

Prosecutorial Misconduct: Naming Names (Again)

As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction -- which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor -- is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see  and see). Yet, with exceptions, appellate courts still appear reluctant to do so. For example, this week, in a statement regarding the denial of certiorari in  Calhoun v United States (568 US __ [2/25/13]), Justices Sotomayor and Breyer condemned the racial  argument of the Assistant United States Attorney,  but did not name the attorney:

It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

I call your attention to two excellent posts  (here and here) regarding the Court's failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).

Saturday, February 16, 2013

Prosecutors Will Not Be Disciplined by Their Offices For Misconduct

I strongly urge that you read this excellent (and depressing) article by Joel Rudin detailing the utter failure of  three NYC District Attorney’s offices to reprimand assistant DA’s found by courts to have engaged in misconduct: J. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong (8 Fordham L R 537 [2011]). The article shows how these District Attorney offices have created more incentives for trial prosecutors to seek to win that they do to comply with their Brady obligations.

Wednesday, February 13, 2013

Need Anyone Inform Defendant of The Mandatory Consecutive Nature of Sentence To Be Imposed Pursuant To Plea Bargain?

In People v Belliard (2013 NY Slip Op 00884 [NY 2/12/13]), the Court of Appeals held that Courtsare not required to advise a defendant pleading guilty that it is mandatory that the sentence of imprisonment he will receive as a second felony offender will run consecutively to the undischarged portion of his previously imposed state sentence. With Chief Judge Lippman dissenting, the Court explained that the mandatory nature of the consecutive sentencing does not render that a direct, and not collateral consequence of the plea.

That a court is not so obligated, does not mean that defense counsel has no obligation to inform his client of the mandatory consequence of his plea. For example, in People v Cosby (82 AD3d 63 [4th Dept 2/11/11), the Appellate Division, Fourth Department held that while the trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so, " 'trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right' to testify at trial."

The Court's holding in Belliard that it is not a direct consequence of the plea that the sentence will run consecutively to the earlier sentence is far from dispositive as to counsel's obligations. For example, in Padilla v Kentucky (559 U.S. ___, 130 SCT  1473 [2010]), the Supreme Court held that regardless of whether the immigration consequences of a plea are described as direct or collateral, when deportation  is clearly a mandatory consequence, counsel has a duty to so advise. Arguably, the logic of Padilla applies to the mandatory consecutive sentence scenario considered by the Court in Bellliard.

Appellate Divisions Can Order Hearing To Determine If There Was A Strategic Basis For Failure To Raise Issue

In People v Bachert (69 NY2d 593, 600 [1987]), the Court of Appeals held that a motion for writ of error coram nobis is the means in New York to raise claims of ineffective assistance of appellate counsel  Such claims focus on  appellate counsel's failure to raise significant and obvious issues while pursuing issues that were clearly and significantly weaker. But it is often difficult to establish that there was no possible strategic basis for such omission.

In People v Lassalle (2013 NY Slip Op 00883 [NY 2/12/13]), the Court of Appeals reminded both counsel and the Appellate Divisions that when "a defendant in a coram nobis points to a clear error on the face of the [trial court] record," that was not raised as an issue on appeal "there are avenues to more fully explore potentially meritorious claims (see e.g. People v D'Alessandro, 13 NY3d 216, 220-221 [2009]; People v Bachert, 69 NY2d 593, 600 [1987])." Specifically, in Bachert, the case in  the Court  held that '[t]he Appellate Division even has the flexibility, should the need arise, to refer factual disputes for hearings to the nisi prius court or perhaps to judicial hearing officers." People v Bachert, 69 N.Y.2d 593, 600 (1987).

Thus, in drafting motions for writ of error coram nobis, counsel should expressly ask that the Court refer to the case to a hearing if it is unclear if the failure to raise a meritorious issue was the product of strategy and not simply a mistake.

Sunday, February 10, 2013

Must Defense Attorneys Guess What Is Not In The Box?

The logical predicate for a requirement that a defendant be precise in framing a defect  requiring redress is that the defendant reasonably be aware of such defect. Thus, for example, in considering what a defendant must allege to obtain a suppression hearing, the Court of Appeals has held that a
factor in determining the sufficiency of a defendant's factual allegations is the degree to which the pleadings may reasonably be expected to be precise in view of the information available to defendant. The CPL expressly relieves defendant of the burden of pleading facts in support of a motion to suppress identification testimony (CPL 710.60 [3] [b]), likely because in many instances defendant simply does not know the facts surrounding certain pretrial identification procedures, such as photo arrays (People v Rodriguez, 79 NY2d 445, 452-453). It would be unreasonable to construe the CPL to require precise factual averments when, in parallel circumstances, defendant similarly does not have access to or awareness of the facts necessary to support suppression
People v Mendoza,  82 NY2d 415, 429 (1993) ("This is an instance where defendant's lack of access to information precluded more specific factual allegations. Although the Appellate Division may have been correct in *434 characterizing as “speculative” defendant's allegation about the guard's status--indeed, defendant provided no factual support for his claim--a guard's licensing status, unlike facts regarding a defendant's own actions or observations, is not something a defendant could be expected to know and thus allege with particularity." Mendoza at 433-434).

In contrast to this holding, the Appellate Division, Fourth Department, in People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), held that  refused to consider defendant's (meritorious - see) claim that the evidence before the grand jury was legally insufficient to support the indictment on the count of assault in the first degree, because the defendant
failed to preserve that contention for our review inasmuch as his omnibus motion . . . failed to set forth the specific grounds for dismissal now set forth on appeal, i.e., that the evidence was insufficient to establish . . . the element of [serious physical injury]. (People v Agee, 57 AD3d 1486, 1487, lv denied 12 NY3d 813; see People v Becoats, 71 AD3d 1578, 1579, affd 17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970; People v Cobb, 72 AD3d 1565, 1565-1566, lv denied 15 NY3d 803).
  The problem with requiring specific and precise allegations regarding the insufficiency of the evidence at the grand jury is that the defendant rarely has access tot he grand jury minutes before filing such motions. Thus, counsel is left to guess what elements were not proved at the grand jury. Under the logic of Mendoza, broad allegations of insufficiency would be enough to  preserve the issue. But given the holding in Madera, it would seem that an omnibus motion should separately list each element of each charged crime and allege that the proof was insufficient to establish that element. Perhaps even that will be held to  be inadequate, since, without access to the grand jury minutes, the motion cannot say why the proof was inadequate. It is difficult to understand the justification for a preservation rule predicated on defense counsel precisely complaining about the content of proceedings as to which counsel is not given information.

Saturday, February 9, 2013

A Shot In The Chest Is Not Necessarily Sufficient To Establish Serious Physical Injury

People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), is another case demonstrating how important it is for counsel to read the statutory provisions defining the crime for which a client is charged. As described below, appellate counsel, successfully made a counter-intuitive augment, not made by trial counsel in the motion for a trial order of dismissal, based on the statutory language.

Although a shot the chest leaving bullet fragments sounds like a serious physical injury, a determination of whether a defendant charged with assault in the first degree by, with intent to cause serious physical injury to another person, caused such injury to that person or to another person by means of a deadly weapon or a dangerous instrument  requires, in part,an examination of the statutory definition of "serious physical injury" and the proof.

Serious physical injury, as defined in the Penal Law, "means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (§ 10.00 [10]). In Madera, there was no evidence that the victim sustained serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. The issue on appeal was whether the proof was sufficient to establish that the victim's injuries created a substantial risk of death. As the Court summarized
The evidence at trial concerning the victim's injury consisted of the victim's testimony and medical records. That evidence established that the bullet entered and exited the victim's body around his right nipple; it was not near any vital organs; and it grazed the victim's right arm either as it entered or exited his body. Although a tiny fragment of the bullet remained in the victim's chest, the People presented no medical testimony to explain what, if any, risk that fragment posed to the victim. No sutures were needed and the victim's self-reported pain level was low. The victim was kept in the hospital overnight for pain management and observation, but he remained in the hospital for another day due to his expressed intent to retaliate against defendant.
Exercising its power to address the unpreserved issue of the sufficiency of proof, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), the Court held that
[v]iewing that evidence in the light most favorable to the People, we conclude that no " rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (People v Contes, 60 NY2d 620, 621). The People presented no evidence establishing that the victim faced a substantial risk of death (see e.g. People v Nimmons, 95 AD3d 1360, 1360-1361, lv denied 19 NY3d 1028; People v Tucker, 91 AD3d 1030, 1031-1032, lv denied 19 NY3d 1002; People v Ham, 67 AD3d 1038, 1039-1040; People v Gray, 30 AD3d 771, 773, lv denied 7 NY3d 848).
Mr. Madera is fortunate that his appellate counsel, Mary Davison, raised this unpreserved issue and persuaded the Court. Yet one is left to wonder why was there not a specific motion for a trial order of dismissal on this ground.



Timing Matters and Reading Is Essential

If there is one lesson that I have learned in more than three decades of practicing law, is that one must not assume anything about a case.

Just because the indictment charges a particular crime does not mean that the conduct alleged, if proved,  established the actual elements of the crime. A defense attorney cannot assume that the prosecutor read the statute in the light most favorable to your client. Rather, in every case you must read the language of the charged crime and try to determine both what that language means and whether the charged conduct fits within that definition.

Similarly, at sentencing one cannot assume that the probation department, prosecutor or court have correctly determined what sentences can or must be imposed in your client's case. Rather, it is incumbent on defense counsel to read the statutory language to independently determine the applicable sentencing options. People v Bush (2013 NY Slip Op 00854 [4th Dept 2/8/13]) is an example of how courts may err on sentencing.  In Bush, the defendant urged on appeal that the portion of his sentence imposing a three-year conditional discharge and an ignition interlock device requirement is illegal inasmuch as he committed the offense prior to the effective date of the statute imposing those requirements.  The Appellate Division, Fourth Department, agreed, and therefore modified the judgment by vacating those provisions.The Court explained that "[p]ursuant to the Laws of 2009 (ch 496, § 15), the amendments to, inter alia, Vehicle and Traffic Law § 1198 are not applicable to defendant because he committed his offense before November 18, 2009, the date of the enactment of those amendments." People v Bush (2013 NY Slip Op 00854). Thus, attentive counsel noticed what the sentencing court did not - the effective date of those sentencing provisions.

What Did the Police Know and When Did They Know It

Pursuant to People v DeBour (40 NY2d 210) and People v Hollman (79 NY2d 181), an analysis of the lawfulness of police action for purposes of determining a suppression motion requires  the court to engage in the legal equivalent of the filming of a stop action animation. Each action by the police must be separately analyzed in the context of what the police know at the time of that act. Thus, defense counsel in drafting suppression motion needs to show the court that the quantum of information available to the police was an insufficient predicate for the degree or nature of the police conduct.
People v Carr (2013 NY Slip Op 00809 [4th Dept 2/8/13]), is a good example of how this approach can benefit the defendant.  In Carr, the arresting office testified at the suppression hearing that
at approximately 4:00 a.m., he approached defendant's vehicle because the vehicle was illegally parked. The officer asked defendant, "what's going on?" and observed that defendant appeared to be very nervous. After the officer inquired as to why defendant was so nervous, defendant replied that he was seeking a prostitute. The officer described the area where the encounter occurred as an "open air drug market" characterized by a high incidence of prostitution and noted that, in his experience, persons seeking prostitutes were often found to possess illegal drugs. The officer thereafter sought and obtained defendant's permission to search the vehicle and, during the ensuing search, discovered a handgun underneath the passenger seat. On cross-examination, the officer acknowledged that, before he sought defendant's permission to search the vehicle, he asked defendant if there was "anything in the car that [the officer] should be aware of." The officer could not recall whether he posed that question before or after defendant made the admission concerning the prostitute.
On this record the suppression court denied the suppression motion, Mr. Carr pleaded guilty to attempted criminal possession of a weapon in the second degree and then appealed.  On appeal, the Appellate Division, Fourth Department, reversed, this conviction upon a holding that the arresting officer acted unlawfully in asking Mr. Carr, who was sitting in an illegally parked car in a high crime area at 4 am., if there was anything in his car that the officer should be aware of and that "(i)nasmuch as defendant's consent to the search was obtained immediately after the improper inquiry concerning the contents of the vehicle, we cannot conclude that defendant's consent was acquired by means "sufficiently distinguishable from the taint" of the illegal inquiry." (As to litigating consent to search in New York generally, see).

As urged by defense counsel, the Court's explanation of why the police conduct was unlawful focused on what it was proved that the arresting office knew at the time of each of his actions:
 We analyze defendant's contentions pursuant to the four-tiered framework for citizen-police encounters set forth in People v De Bour (40 NY2d 210, 223; see People v Garcia, 20 NY3d 317, ___; People v Hollman, 79 NY2d 181, 184-185). At its inception, the encounter [*2]was a request for information, and defendant does not dispute that "[t]he police had an objective, credible reason for approaching [his] car . . . inasmuch as the car was illegally parked" (People v Valerio, 274 AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981). Nevertheless, once the officer asked if there was anything in the vehicle he "should be aware of," the encounter became a common-law inquiry under De Bour, requiring a "founded suspicion that criminal activity is afoot" (De Bour, 40 NY2d at 223; see generally Garcia, 20 NY3d at ___ n 1; People v Ponder, 43 AD3d 1398, 1399, lv denied 10 NY3d 770). We conclude that the People failed to meet their burden of establishing the legality of the police conduct, i.e., that the officer possessed the requisite founded suspicion to make such an inquiry (see generally People v Riddick, 70 AD3d 1421, 1423, lv denied 14 NY3d 844). Although defendant ultimately admitted that he was seeking a prostitute, as noted the officer could not recall whether defendant made that admission before or after the officer inquired regarding the contents of the vehicle. Absent defendant's admission, the evidence demonstrated only that defendant appeared nervous and that the encounter took place in a "high-crime" area. Such factors alone are insufficient to elevate the encounter to a common-law inquiry (see generally Garcia, 20 NY3d at ___; People v Banks, 85 NY2d 558, 562, cert denied 516 US 868; People v Boulware, 130 AD2d 370, 374, appeal dismissed 70 NY2d 994). 
 People v Carr (2013 NY Slip Op 00809).
  


Saturday, February 2, 2013

Location, Location, Location

As with real estate, the location of the arrest or alleged criminal offense can be determinative as to the disposition of the case. Thus, as demonstrated by the cases discussed below, it is critical that counsel be aware of such location and the potential impact that might have on the charges.

For instance, instance in  People v. Cornell (17 AD3d 1010 [4th Dept 2005]), the defendant appealed from a judgment of Ontario County Court convicting him after a jury trial of two counts of rape in the first degree (Penal Law § 130.35[1] ). The rapes occurred on different dates and with different victims. Both rapes occurred in a motor vehicle that traveled from Ontario County to Monroe County. One rape occurred in Ontario County, and from the testimony it appears that the second rape occurred in Monroe County. A defendant in New York has a right to be tried in the county where the alleged crime was committed unless the legislature has provided otherwise. People v. Ribowsky, 77 N.Y.2d 284, 291, 567 N.Y.S.2d 392, 568 N.E.2d 1197 (1991). The prosecution has the burden of establishing venue by a preponderance of the evidence, see Greenberg, 89 N.Y.2d at 555–56, 656 N.Y.S.2d 192, 678 N.E.2d 878, and must “in good faith, elicit all facts tending to show the exact location where the crime was committed.” People v. Cullen, 50 N.Y.2d 168, 174, 428 N.Y.S.2d 456, 405 N.E.2d 1021 (1980). Yet, the lack of venue in Ontario County as to the Monroe County rape was not raised by defense counsel On direct appeal, the Appellate Division, Fourth Department held that by failing to move to dismiss the count of rape that occurred in Monroe County on the ground of improper venue or to request a jury charge on venue, defendant failed to preserve  and waived the issue. The Court also rejected the claim that counsel was ineffective for not raising this improper venue issue. The New York Court of Appeals denied leave to appeal, so Mr. Cornell brought a federal habeas petition based on the ineffective assistance of counsel claim. Although the District Court rejected the petition, in Cornell v Kirpatrick (66r F3d 369 [2d Cir 2011]), the Court of Appeals for the Second Circuit reversed that holding and granted the petition upon a finding that counsel's failure to object to improper venue was objectively unreasonable performance which prejudiced Mr. Cornell.

The location of the arrest can also be a basis for challenging the charges. In People v McGrew (2013 NY Slip Op 00637 [4th Dept 2/1/13]), the Appellate Division, Fourth Department, reversed a conviction for criminal possession of a weapon and dismissed the indictment where the defendant was arrested by City of Syracuse police in the Town of Dewitt, more than 100 yards from the boundary line of the City of Syracuse. As the Court explained

Pursuant to CPL 140.50 (1), "a police officer may [under certain circumstances] stop a person in a public place located within the geographical area of such officer's employment" (emphasis added), the relevant "geographical area" in this case being the City of Syracuse (CPL 1.20 [34-a] [b]). We thus conclude that, under these circumstances, the detective lacked statutory authorization to stop and question defendant in the Town of DeWitt (see People v Howard, 115 AD2d 321, 321; Brewster v City of New York, 111 AD2d 892, 893). Moreover, on these facts, the detective's violation of CPL 140.50 (1) requires suppression of the evidence derived therefrom, i.e., the gun and the marihuana seized from the car (see People v Greene, 9 NY3d 277, 280-281). We thus grant that part of defendant's omnibus motion seeking suppression of that physical evidence, dismiss the indictment, and remit the matter to County Court for further proceedings pursuant to CPL 470.45.



Huge Difference Between Federal and New York Law Regarding The Significance of Flight

In Illinois v Wardlow (528 US 119 [2000]), the United States Supreme Court, by a 5-4 vote, held that a person in a high crime area fleeing at the sight of police is, by itself, sufficient to create reasonable suspicion, under the Fourth Amendment to the United States Constitution. New York courts have refused to adopt Wardlow, in determining the significance of flight in determining whether reasonable suspicion existed justifying police action under Article 1, section 12 of the New York Constitution.

Most recently, in People v Cady (2013 NY Slip Op 00627  [4th Dept 2/1/13]), the Appellate Division, Fourth Department, reversed a conviction, suppressed both the physical evidence obtained by the police (a handgun) and the defendant's subsequently obtained statements, and dismissed an indictment, upon a finding the police lacked reasonable suspicion to pursue and search a suspect who fled from police after the police lawfully approached him.

The Court held that although it was not disputed that the police had an objective credible reason to approach defendant to request information about the shooting, thereby rendering the police encounter lawful at its inception , under New York law
 "With respect to the subsequent pursuit, it is well settled that the police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime' " (People v Riddick, 70 AD3d 1421, 1422, lv denied 14 NY3d 844, quoting People v Martinez, 80 NY2d 444, 446). Flight alone, however, " is insufficient to justify pursuit because an individual has a right "to be let alone" and refuse to respond to police inquiry' " (id., quoting People v Holmes, 81 NY2d 1056, 1058). Nevertheless, "defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (People v Sierra, 83 NY2d 928, 929 [emphasis added]; see Riddick, 70 AD3d at 1422). "It is further well settled that actions that are at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality' " (Riddick, 70 AD3d at 1422). 
Applying this New York test, the Court held that
"the fact that defendant reached for his waistband, absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime" (Riddick. at 1422-1423; see Sierra, 83 NY2d at 930; cf. People v Bachiller, 93 AD3d 1196, 1197-1198, lv dismissed 19 NY3d 861). Moreover, the fact that defendant was located in the general vicinity of a police shooting, approximately eight hours after the shooting occurred, does not provide the "requisite reasonable suspicion, in the absence of other objective indicia of criminality' " that would justify pursuit (Riddick, 70 AD3d at 1423), and no such evidence was presented at the suppression hearing. Thus, "although the police had a valid basis for the initial encounter, there was nothing that made permissible any greater level of intrusion' " (id., quoting People v Howard, 50 NY2d 583, 590, cert denied 449 US 1023).
The Court thus, ordered the evidence thereby obtained be suppressed and because its determination results in the suppression of all evidence in support of the crimes charged, it dismissed the indictment  (see People v Stock, 57 AD3d 1424, 1425).

It should be noted that the Court never cited Wardlow and did not discuss the difference in the federal and New York law regarding the significance of  flight.

Friday, February 1, 2013

Litigating Consent to Search In New York

 by

Jill Paperno
Second Assistant Monroe County Public Defender

In every search case where police claim the defendant consented to the search, there are two issues that must be addressed.  We often recognize the former - whether the consent was genuine consent rather than acquiescence to authority.  But the second issue that must be considered is whether the police had the lawful authority to request consent.  So even if a defendant genuinely consented to a search, if the police did not have the right to ask to search, there should still be suppression.

1.  The burden to establish consent

In People v. Berrios the Court of Appeals stated, "(T)hough a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to 'the burden of going forward to show the legality of the police conduct in the first instance (cites omitted).  These considerations require that the People show that the search was made pursuant to a valid warrant, consent, incident to a lawful arrest, or, in cases such as those here, that no search at all occurred because the evidence was dropped by the defendant in the presence of the police officer."  People v. Berrios, 28 NY2d 361, 367-68 (1971).  (Incidentally, Berrios has some nifty language about the prosecution being deemed to have failed to meet its burden of the officers aren't credible.  I use that a lot.  Though rarely do judges conclude that the officers were insufficiently credible for the prosecution to meet its burden.) 

And, the Fourth Department, citing People v. Kuhn (33 N.Y.2d 203), and finding that consent to search a pedestrian carrying a box and standing on a back porch had not been established, recognized the heavy burden to establish consent: “The court's conclusion that defendant consented to the police intrusion is not supported by the record, or by the reality of the encounter. The prosecution had a heavy burden to establish defendant's consent (People v. Kuhn, 33 N.Y.2d 203).” People v. McFadden, 179 A.D.2d 1003, 1004, 579 N.Y.S.2d 273, 274 (1992)

2.  The legal standard in determining whether consent was truly given

“Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle (see People v. Kuhn, 33 N.Y.2d 203, 208; Schneckloth v. Bustamonte, 412 U.S. 218, 225—228, 93 S.Ct. 2041, 36 L.Ed.2d 854, Supra). As the Supreme Court stated in Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, Supra), ‘Where there is coercion there cannot be consent.’” People v. Gonzalez, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 580 (1976).

The Bronx county Supreme Court decision in People v. Mota summed up the factors to be considered in determining whether consent was truly consent, or instead, acquiescence to authority.

"The People have the 'heavy burden' of proving the voluntariness of purported consents and the trial court must determine voluntariness based on the totality of the circumstances.  People v. Kuhn, 33 NY2d 203, 208 (1973); People v. Gonzalez, 39 NY2d 122, 128 (1976).  In Gonzalez, the Court of Appeals noted that no one factor is determinative of the voluntariness of consent, but that several specific factors should be considered.  The first factor to be considered is whether the defendant is in custody at the time of the alleged consent.  In this context, a court must consider the immediate circumstances surrounding an arrest, whether the arrest is resisted, whether the defendant is confronted by a large number off police agents and whether he is handcuffed.  A second factor is the background of the person consenting.  A person with greater familiarity with police is considered more likely to give a voluntary consent if he consents at all.  The third consideration is whether a defendant either prior or subsequent to the consent has been evasive or uncooperative with the police officers.  The final factor for consideration is whether a defendant has been advised of his right to refuse to consent, although such advice is not mandatory.  People v. Gonzalez  at 128-9, People v. Artis 201 AD2d 488 (2d Dept. 1994).  An additional relevant factor is whether a defendant has attempted to revoke his consent.  People v. DePace, 127 AD2d 847 (2d Dept.), lv. denied, 69 NY2d 879 (1987)."

Further, the test for determining if a search and seizure was based on a valid consent by a person who has been unlawfully arrested was set forth in People v. Borges, 69 N.Y.2d 1031 (1987), in which the Court held that it is not enough that the consent be voluntary, but rather, the evidence must additionally be acquired by means distinguishable from the illegal arrest.  Thus, the Court held it is relevant whether "the consent was volunteered or requested, whether the defendant was aware he could decline to consent."  People v. Borges, supra at 1033.

So as you prepare your cross-examination for the hearing, consider establishing the number and proximity of officers and displays of authority - were they in uniform?  Had guns been drawn?  Had there been a chase?  Did they ever tell your client s/he could refuse the request to search?  The questions are only as limited as your imagination.

3.  Did the police have the right to ask

But can a police officer walk up to anyone (or stop any vehicle) and seek consent to search at any time?  No.  And I'm not the only one saying that.

Even the request to search an individual is governed by the DeBour/Hollman line of cases.  First, a brief refresher - As you recall, a Level I intrusion is a request for information, permissible when there is "some objective credible reason for that interference not necessarily indicative of criminality (cite omitted).  The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (cites omitted).  Where a police officer entertains a reasonable suspicion that a particular person has committed, or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (cites omitted).  A corollary of the statutory right to temporarily detain for questioning is the authority to frisk or if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed (CPL 140.50 subd.3).  Finally, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL 140.10)."  People v. DeBour, 40 NY2d 210, 223 (1976). 

In People v. Hollman the Court of Appeals stated, "No matter how calm the tone of narcotics officers may be, or how polite their phrasing, a request to search a bag is intrusive and intimidating and would cause reasonable people to believe that they were suspected of criminal conduct.  These factors take the encounter past a simple request for information."  People v. Hollman, 79 NY2d 181 (1992).  Once questioning has exceeded a request for information and must be supported, as with any Level 2 inquiry or higher, by at least a founded suspicion that criminal activity is afoot.

In People v. Dunbar, the Court of Appeals stated, "The suppression court, affirmed by the Appellate Division, held that the police did not have a founded suspicion that criminal activity was afoot, as needed in order to engage in the more extended, accusatory questioning attendant to a common-law inquiry. As we held in People v. Hollman, 79 NY2d 181, 191-192 (1992), a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality (cites omitted).  Here, as the courts determined, defendant granted the police permission to search his person and his car only after questioning that might reasonably have led him to believe that he was suspected (without a founded suspicion) of criminality.  People v. Dunbar, 5 NY3d 834 (2005). 

In a recent Court of Appeals decision, People v. Garcia, __ NY3d __, 2012 WL 6571117, the Court of Appeals reaffirmed the principle that officers may not routinely ask pointed questions without founded suspicion, even in the circumstance of an automobile stop.  "Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot." 

So if the police request the opportunity to search a defendant or his/her property, your cross-exam should include questions that establish that there was no founded suspicion.  (That is, unless the prosecution has failed to establish founded suspicion, and your questions may help to clarify that there was. Sometimes silence is golden, and under those circumstances, you may choose not to question.)

4.  How far can the police go in seeking consent to search in a pedestrian stop?

Even if consent is given, the search must not exceed the scope of the consent.  "The scope of the search, it is held, must be limited strictly to the terms of the consent (see Walter v. United States, 447 U.S. 649, 656–657, 100 S.Ct. 2395, 2401–2402, 65 L.Ed.2d 410; United States v. Taibe, 446 F.Supp. 1142, 1147, affd. 591 F.2d 1333 [2 Cir.], cert. den. 444 U.S. 1071, 100 S.Ct. 1013, 62 L.Ed.2d 752; 2 LaFave, Search and Seizure, § 8.1, subd. c)..."
People v. Jakubowski, 100 A.D.2d 112, 116, (4th Dept. 1984).

5.  If an officer initiates an encounter, can a claim of officer safety without evidence of officer danger support a search that exceeds what DeBour/Hollman would permit?
(T)here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174—176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878).23 And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968)

        In People v. Del Vecchio, 277 AD2d 927, The Fourth Department applied the “Terry” standard in suppressing evidence obtained as a result of an unlawful frisk:

The court erred, however, in denying that part of defendant's motion seeking suppression of the evidence seized during the frisk search. Defendant was not suspected of a “serious and violent crime [such] as robbery or burglary” (People v. Mack, 26 N.Y.2d 311, 317, 310 N.Y.S.2d 292, 258 N.E.2d 703, cert. denied 400 U.S. 960, 91 S.Ct. 357, 27 L.Ed.2d 270) or “a crime involving potentially dangerous instruments” (People v. Burks, 235 A.D.2d 373, 374, 652 N.Y.S.2d 980, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310), and the Deputy failed to articulate a reason justifying the frisk search (see, People v. Barriera, 191 A.D.2d 153, 155, 594 N.Y.S.2d 177, appeal dismissed 81 N.Y.2d 1040, 600 N.Y.S.2d 440, 616 N.E.2d 1102).

People v. Del Vecchio, 277 A.D.2d 927, 928, 716 N.Y.S.2d 256, 257 (2000).

        In suppressing evidence of a packet of drugs found in a waistband, Justice Conviser of New York County noted that “A protective search must be limited to an intrusion reasonably designed to recover weapons. If the limited intrusion fails to reveal a weapon, thereby abating the officer's concern for his safety, the search must stop. People v. Diaz, 81 N.Y.2d 106 (1993); People v. Roth, 66 N.Y.2d 688 (1985); Matter of Doris A., 163 A.D.2d 63 (1st Dep't 1990), app. den., 76 N.Y.2d 712.”  People v. Harrill, 19 Misc. 3d 1141(A), 866 N.Y.S.2d 94 (Sup. Ct. 2008).