Drug Evidence Suppressed Because of Illegal Traffic Stop

A decision came down from the NY Supreme Court 3rd Department Appellate Divison last Thursday upholding a lower court's decision suppressing the evidence of a substantial amount of drugs discovered as the result of a traffic stop. Because the court deemed the traffic stop as illegal, or more specifically, because the police did not have "reasonable suspicion" to pull the defendant over, the resulting evidence must be suppressed, or banned from use at trial. The defendant, Matthew Davis, was initially indicted and charged in Schenectady County Court with Criminal Possession of a Controlled Substance in the Second Degree, Criminal Possession of Marijuana in the Second Degree, and violating New York Vehicle and Traffic law §1128(a).

Without this evidence, the people have no case and the defendant walks. The drugs suppressed in this case included a large amount of marijuana and "nine bags of hallucinogenic mushrooms". The defendant in this case, Matthew Davis, was described by on lookers as "skipping" out the court house door upon hearing the good news. Local famous attorney Terrence Kindlon's office handled the appeal and I'm assuming was Davis's trial lawyer as well. (Terrence Kindlon was Christopher Porco's lawyer)

As a traffic lawyer, this decision caught my attention because it includes a discussion about New York State Vehicle and Traffic Law §1128(a). I'm going to call this the "swerving statute". This particular traffic infraction lays the foundation for many DWI arrests as the police often pull drunk drivers over after observing them violating this law. NY VTL §1128(a) states "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." In this case, the arresting officer testified that he observed Matthew's vehicle briefly contacting the fog line. I've often heard police call this "hitting" the line.

Matthew's argued that he did not violate the statute because his tire never went over the line, only in to the line. Because New York courts have never directly addressed the issue of "hitting" the line as the sole basis for a traffic stop, the court looked at the way other States interpret their similarly worded statutes and noted variations, ultimately concluding that merely encroaching in to the line, without crossing it, cannot by itself be construed as a violation of NY VTL §1128(a).

The Court held:

Here, we decline to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. However, in this case, we are mindful that [the police officer] only testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road.

People v. Davis

So a prima facie case for violating NY VTL 1128(a) in cases where the driver merely "hits" the line must include evidence that the driver was "weaving" or "driving erratically".

Success Stories 2008

Guilty client charged with two Class A Misdemeanors: Charges Dismissed

This client got very lucky. He was caught on tape stealing. This particular client had a lot to lose because he had just graduated from college with a very expensive advanced degree and a criminal conviction would have hampered his ability to get licensed in his profession. Other criminal defense lawyers I have talked since would have settled for a plea bargain to one Class A misdemeanor. I was able to get the charges dismissed via the ACOD (Adjournment in Contemplation of Dismissal) Statute. NY CPL 170.55. Granted, not every prosecutor would have been convinced to go for that deal, but I convinced the prosecutor the dismissal was required in the "furtherance of justice".

What the heck does "furtherance of justice mean"? NY CPL 170.40. is the statute that explains the meaning of those words and states that to prevent injustice the court must consider a laundry list of factors including among others "the history, character, and condition of the defendant" NY CPL 170.40 (1)(d) and "any exceptionally serious misconduct of law enforcement personnel..." NY CPL 170.40 (1)(c).

In this case I demonstrated to the prosecutor and the court that the smallest mark on my client's record could potentially ruin his career before it even began and that considering the sacrifices my client had made to achieve his advanced degree, the only just outcome was a dismissal. Of course my client had to perform 50 hours of community service as a condition of the dismissal. A small price to pay.

When it comes to first time offenders, the "furtherance of justice" criteria can be successfully employed to get really good deals. Here is another story:

Criminal Possession of a Controlled Substance 7th Degree NY Penal Law 220.03. Charge Dismissed

This was one of my most interesting cases of 2008 because It gave me the opportunity to do some research and the courtroom experience was a bit unusual, yet very fun. Again, my client had a lot to lose were he to be convicted even of a violation because his career would be in jeopardy. (Under NY Penal Law, a violation is an offense, not a crime. This is a very important distinction for obvious reasons. NY Penal Law 10.00(6) defines a crime as a misdemeanor or felony.)

My client got busted with a very small amount of narcotics in a public place. He was in a line and "consented" to a search of his bag. I learned that there was direct coordination between law enforcement and the private security company conducting the searches and that some of the security company staff were off duty cops. Ordinarily, anyone can be legally searched upon entering private property or public property. And if the searcher discovers contraband, the searcher can "arrest" that person and turn them over to the police. However, the rules change when the searcher is a police officer or is otherwise affiliated with the Government. That is because the 4th amendment applies and the Government needs either probable cause or a warrant to search you. Because the searchers in this case were acting in concert with the police with the objective of busting people for drug possession, the searchers essentially became Government agents conducting warrantless searches without probable cause making the searches un-constitutional. Anyway, that was my theory and I referred to it as part of my motion to dismiss in the "furtherance of justice".

The day this case was scheduled for arraignment was a special day set aside by the court to hear cases specifically related to the event at which my client was busted. Some of the most prominent criminal defense lawyers in the area had clients who were busted at the event including one guy who is arguably the most prominent criminal defense attorney in Albany. I discussed my legal theory with him about the searches and he not surprisingly agreed with me but he, like me, had clients who hired us to get deals, not contest the charge.

When my turn with the Assistant District Attorney came up, the Judge happened to be present during the meeting. I used that opportunity to explain to both the People and the Court why the charge against my client should be dismissed under the ACOD statute. I was prepared with arguments that satisfied all the criteria of the "furtherance of justice" statute. At the end of my presentation the judge said he would accept the deal. The ADA said he would as well but we would have to adjourn the court date because he did not want all the other attorneys in the court room to hear that he gave me that deal.

I consider that case a win.

Heroin in? A follow up.

I had a client not too long ago who was charged with "criminally possessing a hypodermic instrument" in violation of NY PL 220.45. My client was a heroin addict. He overdosed in a friends house. His friend called an ambulance. For some reason, the police showed up as well. Because there was a needle near my client, he was charged with a Class A misdemeanor, a relatively serious charge.

Well it turns out the house he allegedly committed his crime in was just across the town line, which was just outside the jurisdiction of the police department that wrote him the appearance ticket. Therefore, the court lacked "geographic jursiduction" over my client.

I showed up at the scheduled court appearance without my client and made an oral motion to dismiss the charge for lack of jurisdiction. The Judge really had no choice but to grant the motion.

The prosecutor basically conceded to my argument to dismiss. However, he questioned if what I was doing was in the best interest of my client, who obviously was a heroin addict. I felt a little guilty at first but now looking back, I am confident that a jail would have been worst possible place for my client to deal with his problem in.

Need a criminal lawyer? Read this.

http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer/

I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.

Criminal Procedure

A big part of my job as a criminal defense attorney is simply making a prosecutor do his or her job. The criminal procedure law is very specific and failure to follow the rules for prosecuting a defendant can result in either a dismissal of a case, or a far better plea bargain offer than what was made initially. I make sure a prosecutor follows the rules. Most prosecutors do their job very well, especially in Saratoga County where I live. But every once in a while, a prosecutor slips up and my client makes out well. Don't worry, I'm not talking about violent criminals here. Most of my clients are white collar.

I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?

Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.