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".

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.

Why Hire a Traffic Lawyer?

As part of an effort to make the Saratoga Lawyer Blog more useful and informative, this post will be the first in a series that illustrates the important work traffic lawyers do with real word illustrations from my cases and experience. Too often, people rely on lawyers who do not specialize in traffic with the misguided belief that any lawyer can handle a traffic case. Too often I get the call to straighten out the legal mess resulting from the mishandling of a simple traffic case.


I recently took a case referred to me by an attorney who is a friend and an estate planner. The client is the son of a client of my friend's law firm. The son is being charged with Aggravated Unlicensed Operation 3rd degree or AUO 3rd. This is a very common offense in New York State and it is a misdemeanor, like a real crime. If you are caught driving on a suspended license, you get the AUO 3rd. Most cops allow the defendant to drive home. Sometimes, people are actually arrested and have to post bail. I had a client who did seven days in county jail for this offense. So it is a serious charge, and it happens to all kinds of people; lawyers, doctors, teachers, etc.

People generally find themselves facing an AUO3rd because they did not know their license was suspended. The typical case is that the driver failed to appear for a previous traffic ticket and the issuing court suspends their license. In the meantime, the driver moves but does not notify the DMV of their address change, (which happens to also be a V&T violation), so they never get actual notice of the suspension. Lack of knowledge is generally not a legal defense.

I can generally get an AUO 3rd dismissed or reduced by showing the prosecutor that my client has addressed the underlying suspension issue. In the case at bar, I offered to take care of the matter for the client in the court that suspended him, but he said he wanted to use the lawyer who he initially hired for that case. I though it was very odd that my client was hiring the lawyer who caused his current problem, but I did not protest. I later learned that the lawyer was my client's relative who happens not to be traffic lawyer.

One thing I have learned is to never, ever, trust that a client really knows what is going on with his or her case. In the case at bar, as soon as I was retained, I called the court that issued the AUO 3rd and learned there was a warrant out for my client's arrest because he missed his court appearance. Had my client been pulled over, or for some reason interacted with law enforcement, he would have gone to jail. A decidedly unsavory experience for a naive college senior.

It is important to hire an experienced traffic ticket lawyer for more reasons than simply "getting a deal". A good traffic lawyer must be diligent in following up on his or her cases because of the AUO 3rd. Many Courts are very quick to suspend the driver that is ignoring his or her obligations to the Court resulting in big problems for the client down the road.

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.