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Headed to Prison Dedicated to those who are facing incarceration. What to expect; what you can do to prepare; Q&A's; support.

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Old 01-16-2008, 08:01 PM
Angel212 Angel212 is offline
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Default Search and Seizures

Hello,
My son was arrested on a weapons possesion charge. But the details are very interesting to say te least. It turns out that his girlfriend was also seeing a Police officer on the side! To make a long story short my son ran into them at his and her favorite restaurant adn got into a heated argument with his "girl". He demanded that she return some jewelry of his that she was wearing. He returned to a cab where he and a friend and the cab driver were waiting for her to return his jewelry. When she approached the car she had a knife in hand and proceded to attack son. He was sitting in the car. Suddenly her new "friend" started approaching the car and my son noticed that the mad had a weapon on his side. He told the cab driver who promptly took off knocking the girl down (she still had her arm in the car) in the process. Her new boyfriend, his sidekick and the girl, jumped in a car, chased the cab and asked the occupantts if there was a gun in the car. The cop was off duty and out of his jurisdiction by the way. The cab driver spoke up and said the kids had a gun and it was in the front seat with with! So the police officer called for back-up and arrested my son ONLY! He is facing jail time, while his friend and the cab driver were not even mentioned in the complaint.
My sons aunt is a New York City Detective and tells us this is an illegal search and seizure.
Can anyone she light on this?
BTW my son does not have a record and is 24 years of age.
Thank you
Angel
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  #2  
Old 01-16-2008, 10:48 PM
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New York is known for liberal judges who throw out illegal searches quite often. That is the good part.

But there are two issues with regards to searches and seizures. The first, is the 4th Amendment and whether (1) the individual had a reasonable expectation of privacy (REP) and (2) whether the search was reasonable under the totality of circumstances.

But then, if the search is found to be unreasonable and violates REP, the next question is whether what was seized should be excluded - under what is known as the "exclusionary rule." The exclusionary rule is a judicial creation that is not formally written into the Constitution, but is meant to deter the government from violating the 4th Amendment. The key word there is government - the exclusionary rule does not apply to private individuals (unless they were working in concert with the government), absent some kind of privilege (e.g. doctor-patient, attorney-client, priest-penitent, etc.).

In this situation, even if we get to the point where your son had a REP to what he had in the cab (among questions would be, where in the cab - why was the gun in the front seat (unless your son was riding in the front seat)), and then we declare that the search was unreasonable, then we have the issue of how did the cop get the gun? Did the cab driver just hand it over voluntarily (private individual acting in violation of the 4th amendment but NO exclusionary rule applies), or did the cop reach into the cab and grab the gun or somehow intimidate the cabbie into turning over the gun (then exclusionary rule WOULD apply as the government is the one that overstepped the fourth amendment).

I also think there is an issue that should be raised about the cop "seizing" the cab in the first place. He did so without a warrant, but was the seizure reasonable under the circumstances? Maybe - the cop was chasing someone who, did...what? You should complete the sentence. If the cop had no right to chase and detain the cab in the first place (a crime committed in his presence, fleeing suspects), then the whole search of the cab goes out the window as well. I think it's interesting if, as you say, your son was charged only with a weapons possession. Because it seems to me that the crime committed if anything was robbery or battery on the girlfriend. If your son was charged with neither of those, I would argue that no crime was committed in the presence of the cop so he had no right to chase and detain the cab in the first place.

I mean come on - a cop sees a girl and boy arguing, so he chases the boy and detains him? On what grounds?

I think your best defense is the shakiness of the police report. Where did the gun come from? Why did the cop chase and detain them in the first place? If the report is vague about that or contradicts the facts (maybe the cabbie will tell the truth, that the cop reached in and grabbed the gun or intimidated him into turning it over), the case may be thrown out on that alone. Unless they can establish a firm chain from cab to cop for the gun that does not violate the 4th Amendment or establish that the cabbie just handed the gun over voluntarily, AND that the detention of the cab was reasonable, the case will fall apart. Good luck.

Last edited by MDawg; 01-16-2008 at 11:01 PM..
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Old 01-17-2008, 04:10 AM
Angel212 Angel212 is offline
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Mdawg,
In this case the cop basically argues that he saw his "friend" being assaulted (even though my son was in the cab) which prompted him to chase the cab. Mind you he never identified himself as an officer. In addition I find it hard to believe that you can assault someone from inside a cab. The girl fell down because she was reaching into the cab. He was not charged with assault or anything. He was basically chased, pulled over,cab tossed, gun found and the charge went to my son only. Incidently the cab drivers name does not even appear in none of the court papers. My sons best friend is a cop who works at the precinct where they took my son when they arrested him. He tells me that the arresting officer did not even ask the cab driver his name. He just let him go! All he jotted down was the livery cab drivers cab number! Assuming that the gun belonged to the cab driver, all he had to do was shift blame on the kids and WHAMO he goes scott free. I have never heard of such a thing before. Also my sons friend who was in the cab with him at the time as well didint get charged either and he Does have a record. They let him go the same day. It seems mighty prejudiced on the officers part. IN any event we are awaiting a suppression hearing. We have written statements from the restaurant workers that verify my sons story. NO one knew this man was a cop. HE was in fact partying with my sons "girlfriend" when all this occured. OH one thing; my sons girlfriend claimed that she was not seeing my son! Even though he has a huge list of text messages from her as well as pictures. But she claimed that she barely knew him, which begs the question, then why were you at his cab in the first place? She litteraly walked to the cab with aknife in hand to stab my son (by the way she has a record for this same thing already. The only one who did not see her weapon, was the cop!
Thank you as always Mdawg!
A
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Old 01-17-2008, 11:28 AM
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All this bloodies the hands of the police and the girl considerably. You have to get all your ducks in a row for the suppression hearing however. First off, follow the chain of how exactly the cop claims he got the gun. Then produce any evidence that contradicts that story.

Did they fingerprint the gun? Was it registered to anyone?

You should also hire a private investigator to talk to the cab driver and get his side of the story. If it helps, present him. If it doesn't, leave the cabbie out of it.

Even if you lose the suppression you can appeal, and anyway it doesn't sound like a very presentable case from the D.A.'s standpoint.
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Old 01-18-2008, 07:00 AM
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Default I can't find info on these...

MDawg I have a couple of questions. If there was a legal eviction preceding where the sheriff was present and there were movers there to move the things. Once the sheriff does a sweep through of the house to make sure no one is home then the movers go to work. One of the movers picks up the mattress and sees a weapon. Now supposedly the mover said Oh and the sheriff looked and there a weapon. He immediately seizes the weapon. Now it wasn't in plain view so how could he seize it? Also it is not longer a civil action it is a crime scene so wasn't he suppose to radio it in and call the cops and get a warrant to seize being the there was no imminent danger. Also what was the probable cause to seize the weapon? No one was home so you don’t' know if there was a license for the gun. Were the movers acting under the duty of law enforcement or were they just citizens?
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Old 01-18-2008, 01:37 PM
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Normally it is better to start a new thread and not hijack someone else's discussion. But in this instance the answer to you situation will shed light on this thread of thought in general.

In general unless private citizens are acting in concert with the police (coordinating with them, working with them, etc.) the exclusionary rule does not apply to them, even if something they do violates the fourth amendment.

In this type of situation did the movers even have a hand in turning the weapon over to the police anyway? They may have unearthed the evidence, but then the police who were already there took custody of it.

It's like this. You have a roommate. He knows you stole some priceless Picasso from the New York Metropolitan Museum of Art. So he goes into your room, grabs it and turns it over to the police. You are arrested. Sure, he violated your fourth amendment rights, but the exclusionary rule that is a sort of penalty for disobeying the fourth amendment applies to the government only. So unless the roommate opened your door and let the police in to search without a warrant, there is no government action involved in the search and seizure.

So, in your situation. Was what the movers did more like they found the gun and turned it over to the police (no exclusionary rule), or did they let the sheriff into a place where he had no authority to be and the sheriff then seized the weapon (excluded). You seem to be making much of whether the mover just said Oh there's a gun (and imply that actually maybe he turned it over to the police). Doesn't matter - in either case, the mover supplied the gun to the police.

Your situation is a little of both, because the movers found the gun but the sheriff had authority to be there. I would guess (there is no definitive answer) that you would lose a suppression motion because the sheriff had authority to be there, and the movers unearthed it anyway (the sheriff conducted no search, just a seizure).

I suppose if this is all a lie and the sheriff tore up your house and found the gun, then sure, the exclusionary rule would apply but that scenario makes no sense. Sheriffs at lockouts just want to make sure people get out. They are not there to search. Unless you know something I don't and the cops were hot to find an excuse to search your pad, and used this lockout as an excuse to get in there.

Now another issue is - is a gun intrinsically something that is illegal and demands further inspection and seizing just because it is found somewhere. I don't know. There may be New York case law or a statute on this. You'd have to have your attorney look into that for you. That could be a colorable argument - that the cops when they find something like that should have to get a warrant to investigate further. But there may be some statute in New York that states that gun owners must provide proof of valid ownership when asked by law enforcement.

The final issue - standing. In order to assert a 4th Amendment REP, you must have some right or ownership (even temporary) to have dominion over that place where you are asserting a REP. For example, your car. Or even a phone booth you are occupying where the door closes. Or a changing stall at a department store with a locking door. Or, of course, your home.

That question would become, since you were evicted, did you have any REP on that day anyway. I would argue that you did, until such time as you were completely out. But that could be an issue the other side would raise.

Last edited by MDawg; 01-18-2008 at 01:54 PM..
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Old 01-18-2008, 01:46 PM
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Default Hmmm

I aplogize for not starting a new thread.

So how will we know if the movers are or are not an extension of the law. They are the only movers who coordinate with the Sheriffs (we hired a private investigator). Does that make them an extension of the law. Also doesn't plain view come into play. Our lawyer states that even though if our eviction is illegal (in the process of working on that) the case will still uphold based on plainview. My initial statement was that the did a sweep through of the house and didn't see anything so now when someone else moves the mattress the weapon becomes plainview...how so?
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Old 02-25-2008, 08:33 PM
Angel212 Angel212 is offline
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Default Had court today

Hi MDawg,
My son went to Court today for the suppression hearing. The DA said that they had not had time to review our lawyers motions and that they will be assigning the case to another DA. I kinda feel that they are aware of the many loopholes and inconsistancies in this case. Our lawyer submitted the motions on January 11 and they STILL had not responded to the motions.
Our lawyer submitted motions for the records of all involved ( my son has never been in trouble before). The girl in question is a felon who has a history of attacking her boyfriends! Also the policeman in question was hanging around with felon and apparently doing her bidding. I think its time to go ahead with a complaint to internal affairs.
What do you think?
Angel
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Old 02-26-2008, 11:12 AM
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Tyson - I think my analysis was complete. You need to have an investigator talk to the movers to pin down their story, then go from there. Attorneys sometimes give you the straight answer without analyzing the particular situation. In the end, "plain view doctrine" may be what wins the case for the prosecution, but until you have all the facts, it's premature to say you have a loser.

Angel - It's hard to know exactly when to proceed with an internal affairs complaint. It can help to destroy a prosecution case, or make them dig in their heels to keep going no matter what. It seems to me that with all that you have the D.A. is feeling reluctant with proceeding with the case, even if they win the suppression motion.
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