In Prison, But Not “In Custody”???

We advise our clients not to say anything to police officers if they are pulled over, or are taken into custody. Even seemingly innocuous answers to carefully crafted questions like “Do you know how fast you were going?” or “Are you dealing with some sort of emergency?” can be used to clinch a conviction in what may otherwise been a weak case against a person. This is because when one is being pulled over, he is not being “custodially interrogated,” and therefore the officer does not have to advise someone of their right to remain silent before making incriminating statements.

But recent cases have shown that there are instances, even after one has been incarcerated, where there is no “custodial interrogation,” and one can be questioned without being advised of his right to say “I don’t want to talk.”

Background

The famous Miranda decision allows a defendant to supress his or her own incriminating statements, so that they cannot be used at trial if they were elicited during a “custodial interrogation” without a valid waiver of the Miranda right to remain silent and right to counsel. The background to this rule was discussed earlier in this post.

In order to exclude one’s incriminating statements from evidence, the statements have to have been made without a valid Miranda waiver in the context of police “custody,” and while under “interrogation.” And while the meanings of those two words may seem self evident, they have developed very specific meanings in the Miranda context.

The recent Second Circuit Court of Appeals decision in Georgison v. Donelli, reported in this past Thursday’s edition of the New York Law Journal, is a good illustration of how particularly the term “custody” is defined.

While incarcerated at the Riverview Correctional Facility in 1996, New York City police officers were questioning Mr. Georgison regarding the 1993 pipe beating of a truck driver in the  Bronx, a matter unrelated to his incarceration. During the conversation, he made some incriminating statements. After making those statements, he indicated that he did not want to talk anymore and walked away. At trial, those statements were then used against him at a trail relating to that beating. He appealed the judge’s decision to admit his statements into evidence, arguing that he was being sbjected to “custodial interrogation” without Miranda warnings, or a waiver of those rights, at the time the statements were made.

His arguments were rejected in this most recent Second Circuit decision. The courts held that “custodial interrogation,” for Miranda purposes, can only exist where a person does not feel free to walk away from the officers questioning him. They held that this was not the case with Mr. Georgison’s interrogation, where he felt that he was at liberty to walk away from the officers when he no longer wanted to speak to them. The courts held that this conduct indicated that he did not feel he was restrained or not at liberty to leave the interrogation, and thus that his interrogation was not “custodial.”

They held that it was irrelevant that he was in a prison, and was unable to freely leave the prison as a whole. Miranda only requires that the person being questioned must feel restrained from leaving the interrogation. Being unable to leave his general surroundings, however, is irrelevant for the purposes of determing the presence or absence of “custodial interrogation.”

Thus, one should consult a competent criminal defense attorney, such as those at The Law Office of Elliot Schlissel, before saying anything to police officers, whether it is in the context of a simple traffic stop, one whether one is already incarcerated. You can contact our office, 24/7, at 800-344-6431 or by e-mail for help or more information.

Picture courtesy of FBI.gov.

United States Supreme Court Addresses Life Sentences for Juvenile Defendants

In the United States today there are more than more than twenty-two hundred (2,200) juveniles who are incarcerated as adults. These juveniles are serving life sentences without the ability to obtain parole (to be released from jail prior to the end of their sentence). Among the twenty-two hundred (2,200) juveniles, there are some prisoners who are as young as thirteen (13) years old.

In 2005, the United States Supreme Court, in a close decision (5-4), held that an individual who committed a crime when he or she was younger than eighteen (18) years of age cannot be executed. The court held this was unconstitutional.

On Monday, November 16, 2009, attorneys representing two minors sentenced in the State of Florida argued before the United States Supreme Court that the theory behind the prior death penalty decision in 2005 should also be extended to minors receiving life sentences.

The theory behind the death penalty decision of the United States Supreme Court was based on two key factors: (1) minors are not as culpable for this crimes as adults and they can be reformed and (2) The Supreme Court held that it would be “cruel and unusual punishment” to execute minors. Cruel and unusual punishment is banned by the 8^th Amendment to the United States Constitution.

Terrence Graham and another individual robbed a restaurant. He is in jail for this crime. In 2004, when he was only seventeen (17) years of age, he was sentenced to life in prison without parole. This action was taken because he violated the terms of his probation by committing another robbery at gun point.

Joseph Sullivan, committed a burglary when he was thirteen years old. He thereafter was convicted of sexual battery against a seventy-two year old woman. Joseph Sullivan, a mentally disabled individual, has been convicted of several serious felonies and seventeen criminal offenses overall.

In the aforementioned two cases, both of the juveniles were given life sentences for crimes that did not involve homicides. It should be noted that more than 135 countries throughout the world do not allow life sentences for juveniles.

The United Nations Treaty prevents the imprisonment of children without the possibility of parole. All of the countries who are members of the United Nations with the exception of the United States and lonely Samoa have executed this treaty.

Is our society mature and sophisticated enough to deal with errant juveniles without warehousing them in prisons for their entire life?

-Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of acslaw.org

New York Criminal Question and Answer Part 2

Click here to see Part 1 of the Q&A.

How does sentencing differ between the various types of drug possession and sale?

A variety of sentencing guidelines have been imposed by the New York state legislature in Albany. The guidelines relate to the how much of each drug one was found with and whether one is charged with drug or merely possessing it. They specifically provide more severe sentences for crack, cocaine and heroin than they do for marijuana.

There’s also a phenomenon of people illegally selling prescription drugs. Very often, drugs such as Vicodin, Oxycontin and Percocet are acquired by people who work in hospitals and then they’re sold on the street. These are drugs are prepared by pharmaceutical companies for medicinal purposes, but they’re abused when taken in inappropriate doses by individuals.

In what situations can somebody plead to a lesser offense?

If an individual is charged with possession of a drug, the person may legitimately have a drug problem. I will often suggest that such individuals participate in a drug treatment program to treat their addiction. If this is a person’s first offense, and was not committed in the context of any kind of violence – because the person did not, for instance, rob anyone to get money to buy the drugs, then an attorney can often convince the prosecutor that this needs help because he or she is suffering from an addiction, and therefore deserves probation.

For juveniles, the court may agree to have the young person sentenced to a “shock program.” Shock programs are generally programs where young people are placed in military-style, intense programs that include a significant amount of manual labor. These programs may be allowed in lieu of a sentence in an actual prison for a first offense. The sentences for these shock programs are generally much shorter than they are for normal prison sentence.

Although various kinds of shock programs have been around for a long time, the requirements and types of programs have changed. Today, they are often used in the cases of minors or young men who have been convicted of selling crack and other drugs on the streets of New York City, Brooklyn and Queens counties. Long Island’s Nassau and Suffolk counties also have relationships with these programs.

Besides shock programs, the courts will often consider other alternatives to jail time. Parole and probation are also used. If someone has already served prison time, he or she can be paroled. Parole consists of a certain amount of time after being released when one must report to a parole officer. During that time, the person must avoid less-than-legal habits, people who are involved in criminal activity, and, of course, you have to stay drug-free.

A person may be put on probation, on the other hand, rather than a jail sentence, or in combination with a jail sentence. A person will generally be required to meet with his probation officer, usually once a month during the probation period.

What happens if someone decides to go into a drug treatment program during this process? How does that affect their jail sentence?

Judges often understand that drug addiction is a condition that requires treatment. They look very positively on those who are proactive and place themselves into a drug treatment program. But going into a drug treatment program is not a “get out of jail free” card. It does not mean that you will not get a jail sentence at all, but it can, in many situations, reduce one’s jail sentence or possibly convince a court to give an extended probationary period, such as five years, rather than sentencing a person to jail time.

What types of representation are available to individuals who have been arrested on a drug crime?

Two basic types of representation are available to such individuals. Legal Aid or 18B, court-appointed attorneys, are available to those who cannot afford to hire their own attorney. The other option is private counsel. Legal Aid and court-appointed attorneys work very hard and with great diligence to represent their clients. But unfortunately, they are often overworked and have limited resources. They cannot give their clients the kind of personal attention that would be available with private counsel.

Private defense counsel, such as the attorneys  in our office, can advise you about alternatives to serving  jail time. We work with organizations who help individuals avoid actually serving prison time. We sometimes involve social workers at one of these organizations to work with the individuals charged with crimes and we sometimes bring these social workers to court to make presentations to the judge regarding what is involved in the program.

It is important that one is sincere in order for us to be able to effectively convince the court to consider alternatives to jail time.  We are often able, by working with the judges, the probation department and outside organizations, to convince the court that both our client and society in general are better off if the person is allowed to pursue treatment, rather than serving time in prison.

Unfortunately, jail can often create better criminals. We are able, very often, to convince  judges that our clients should be given a second chance and that they should not be incarcerated, but should be allowed to continue in treatment programs to deal with their drug addiction.

How do criminal drug laws affect minors?

A minor can sometimes be charged as an adult. Sixteen and seventeen year olds are automatically charged as adults, while thirteen to fifteen year old minors may be charged as adults for serious and violent crimes. If ta minor is indeed charged as an adult, they will be subject to the same penalties that an adult would face.

The Family Courts in New York State are designed to handle cases involving minors. When charged as a juvenile, a minor will generally not be sentenced to a more severe penalty than being held in a youth facility until they are either 18 or 21 years old.

However, when a minor is convicted as an adult, he or she has the status of a “youthful offender.” When this is done, the court seals his or her record. So, when a minor is designated a “youthful offender,” his record is sealed and it does not show up as a criminal conviction in the minor’s record.

Employers often ask whether someone has been convicted of a crime when he or she is making an employment application. While one may not falsify such an application, checking “yes” on the employment applications can negatively affect the person’s future employment prospects.

Some judges are aware that young people often make mistakes. Our office knows how to effectively respond when minors are charged with drug crimes in getting them into programs. We have had success in many cases avoiding incarceration sentences and obtaining alternate sentencing. We can take action to induce the district attorney’s office and the judges to work with us in formulating alternatives to jail time for our clients.

The Law Office of Elliot S. Schlissel
479 Merrick Road
Lynbrook, NY 11563

Toll Free: 1-800-344-6431
Nassau phone: 516-561-6645
Queens phone: 718-350-2802
Fax: 516-561-6716

E-Mail

Picture courtesy of atd.com

New York Criminal Charges – Questions and Answers Part 1

What type of drug cases do you handle?

Our offices handles every type of drug case, from relatively minor prosecutions for possession of marijuana, to defending those who are charged will selling “hard drugs.”  There is a big difference between the kind of sentences imposed for what are called hard drugs, such as cocaine and heroin, and soft drugs such as marijuana. While selling marijuana is prosecuted relatively tepidly in New York, Brooklyn and Queens courts, in Nassau and Suffolk County counties, they generally prosecute even marijuana possession quite aggressively.

We represent people who are charged with the possession and/or sale of cocaine and heroin, which used to be subject to very severe penalties under the “Rockefeller Drug Laws,” which were in effect in New York for decades. Recent changes in the law have significantly reduced these penalties.

The unauthorized possession or sale of prescription bills can also subject a person to serious criminal charges.  Some of these pharmaceuticals are manufactured in illegal laboratories.

What are some of the pills that you’ve seen?

We have defended clients who were charged with illegally obtaining such drugs as Vicodin, Oxycontin and Percocet.

How are the crimes of sale and possession defined in New York?

Possession is not penalized as severely as crimes relating to the sale of illegal narcotics. It is possible to inadvertently commit the crime of selling drugs by buying some drugs and then giving or selling a small amount to a friend. Although the person may not intend to become a “drug dealer,” he is inadvertently committing a much more serious offense than merely possessing drugs. 

The system works in the following way:  If the authorities arrest you for possessing a narcotics of a certain weight, you would often want to make a plea deal with the prosecutor. It is sometimes necessary for you to cooperate with the police or the district attorney’s office by giving them information to assist in the prosecution of someone on a higher level in the drug dealing chain. This is what happens to many individuals on the lowest level of the drug dealing pyramid structure who are caught by narcotics agents, or “narcs,” as they sell drugs on the street.

As indicated earlier in this post, New York City, Brooklyn and Queens counties treat drug crimes differently than they do in Nassau and Suffolk counties. In the latter, these cases are more vigorously prosecuted in the Long Island suburbs than they are in the city.

Picture courtesy of hiptics.com

Can the Hofstra Rape Case’s False Accusor be Convicted of a Crime?

According to an Associated Press report, an 18 year old freshman at Hofstra University came to police on Sunday (9/13/09) claiming that she had been tied up and gang-raped by five men in a men’s dormitory. After her statement to the police, they arrested four of the five young men. On Wednesday night, word that one of the young men had a cell phone video of their encounter with the young woman, showing that everything that occured between her and the five men had been consensual. This prompted her to recant her story and the police released the four men. The Nassau County District Attorney’s office is considering charges against the young woman, who’s name has not been released, for filing a false report with the police. 

Can this woman be prosecuted criminally for filing a false affidavit with the police? Would the young men have a valid civil case against her for false imprisonment?

According to New York Penal Law § 210.10,  one may be convicted of perjury in the second degree, a Class E Felony, if she:

1. Swears falsely
2. Does so in a document for which an oath or affirmation to tell the truth is required (like an affidavit)
3. The person intends “to  mislead  a public servant (like a police officer)  in the performance of his official
     functions”
4. The matter the person lied about is “material” to the proceeding/action about which she is lying.

If this woman’s false statement was not only made in an oral statement to police, but sworn to in an affidavit, then the public reports would seem to indicate that the other elements of felony perjury are there. If she is convicted of a Class E felony, the class of felonies with the shortest jail term, it is still possible for her to be sentenced for upwards of a year.

If the young men sue their accusor in a civil court for “false imprisonment,” they must be able to show that she had the intent to cause them to be confined, and that the young men had no “reasonable means of escape.” Parvi v. City of Kingston. Even if she only caused them indirectly (e.g. by using the police to do the imprisoning on her behalf) to become imprisoned, as opposed to physically imprisoning them herself, she can still be liable. 14 N.Y.Prac., New York Law of Torts § 1:24. And where one instigates the police to arrest someone may also be liable for the tort of false imprisonment. Celnick v. Freitag,  662 N.Y.S.2d 37 (1st Dept.1997).

In sum, if the public reports are based on admissible facts, then the Hofstra rape case accusor may not only be arrested and imprisoned for perjuring herself by falsely accusing these men of rape, they may also have a cause of action against her for monetary damages for causing them to be falsely imprisoned.

As always, if you need a criminal defense lawyer  in NY because you are charged with making a false statement to police, perjury, rape, or any other crime for that matter, you can always call our office, which has about thirty years of experience in criminal defense. On the other hand, if you need a personal injury attorney to sue someone for physically confining you if you need someone to defend you against such a claim, or you need to sue someone for any other type of injury, our office has significant experience in personal injury law as well. And you can contact our office at 800-344-6431 anytime 24/7.

Picture of three of the accused men, Kevin Tavares, second from left, Stalin Felipe, center, and Rondell Bedward, right, courtesy of Frank Eltman.

Can The Police Strip Search You For Driving on a Suspended License?

Have you ever failed to pay all or part of a ticket, and then unknowingly had your license suspended, and then continued to drive using that suspended license?[1] Have you ever hung out in a club or bar where people were using drugs?[2] Do you know anyone who has failed to keep their property clean?[3] If so, it is possible for the police to arrest you and, until recently in New York City,[4] strip search you!

The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor.[5] The three crimes listed above (and many others) qualify as misdemeanors, and so if the police observe you committing one of them, they are permitted to, but are not obligated to, arrest you.

The New York City Department of Corrections made it a practice to strip searchall misdemeanants charged with drug or weapons crimes who were detained upon arrest as well. The City claimed that “like felony detainees, [these misdemeanants] could never legitimately claim that they had a ‘right’ not to be strip searched.”[6] 

Unfortunately, there are major problems with the City’s logic. The 4^th Amendment to the U.S. Constitution, as applied against the States by the 14^th Amendment, prohibits the government from conducting “unreasonable” searches and seizures. Claiming that the Dept. of Corrections violated this Constitutional provision, a group of arrestees who had been strip searched at Riker’s Island without any individualized inquiry as to whether they were likely to be hiding weapons or contraband, sued the City of New York for violation their Constitutional right not to be searched “unreasonably.”[7]

Mark Hamblett, in the New York Law Journal, pointed out Southern District Judge Gerard Lynch’s recent finding in this case that the city is liable for violating the Constitutional right of those arrestees.[8]He pointed out that the Second Circuit Court of Appeals recently held that “it is ‘long-standing precedent’ that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized ‘reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’”[9]

Judge Lynch reaffirmed the notion that the Constitutional default setting of the police should be “Do Not Search” mode. Deviations from that require some specific, individualized justification. The police must have some specific reasons to justify a “reasonable suspicion” that a detainee may be in possession of either contraband or a weapon that poses a danger to the police.

The bottom line is that it is better not to commit any misdemeanors to begin with. But if you are arrested for one, the police need some specific facts on which to base a suspicion that you in particular have contraband or weapons (that would be revealed by a strip search) in order to conduct a strip search. If the police find anything illegal during a strip search, and the search was conducted without “reasonable suspicion,” you may be able to have that evidence suppressed. So be sure to hire a good criminal defense attorney to help you with this or any other criminal defense matter.

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[1]NY Veh. & Traf. § 511(1) (West 2009)

[2] NY Penal § 240.36 (West 2008)

[3] NY Penal § 240.45 (West 2008)

[4]McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)

[5]NY Crim. Proc. § 140.50 (West 2004)

[6]McBean at *6.

[7]McBean at *1-2.

[8]McBean at *6.

[9]Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)

Two Articles from This Blog Featured on GetLegal.com

Two articles that originally appeared on this blog were recently featured at GetLegal.com.

One article which originally appeared here was published at GetLegal at the very end of last month: COMMENTARY:  Fetal Homicide Laws & Legal Abortion – The Common Denominator

The other article which originally appeared here was published this past Monday: Driving While Intoxicated (DWI) Without Actually Driving

Picture courtesy of Daron Sutton.

Do the Police Need a Warrant to Attach a GPS Tracking Device to Your Car? (Updated)

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept.  People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the  Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking  device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case,  Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police.  LINK.

Picture courtesy of consumertracking.com. As always, if you need help with any criminal matter, you are invited to contact our office.

After Gant, Is New York’s Car Search Rule Stricter, More Lenient or Juuuust Right?

Last week, the Supreme Court announced the groundbreaking decision of Arizona v. Gant, significantly limiting the police’s ability to conduct searches of automobiles  “incident to a lawful arrest” without either a warrant or probable cause. Before the Gant case, however, New York courts have consistently interpreted the State Constitution much more strictly, in this regard, than the Supreme Court had interpreted the U.S. Constitution.

This post will explore whether the new Gant decision makes the national rule regarding incident-to-arrest searches more leniently, as strict as New York’s rule, or stricter than New York, which would invalidate the New York rule to the extent that it was more lenient than the new Gant rule. This post will conclude that the Supreme Court’s new rule in Gant is still more lenient than New York’s rule, and that New York’s search-incident-to-arrest jurisprudence will probably not be affected by the holding in Gant.

For a nice summary of the development of the Supreme Court’s rules with regard to searches of automobiles incident to a lawful arrest, see the first part of Evidence ProfBlogger’s post at PrawfsBlawg,  Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests.

In short, before Gant was decided on Tuesday, the national rule, established by the Chimel case, was that  was that incident to any lawful arrest, police may  search “the area from within which he [an arrestee] might gain possession of a weapon or destructible evidence.”  In the context of car arrests, the Court, in New York v. Belton, made a bright line rule that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” This right was automatic. It did not depend on the arrestee’s actual ability to reach a weapon or destructable evidence, nor did the police have to show probable cause or reasonable suspicion that the car was likely to contain evidence or a weapon.

These cases set a very low bar for what would constitute an “unreasonable search and seizure” in the context of a search-incident-to-arrest of an automobile. But New York has consistently interpreted its own Constitution more strictly, not adhering to the lenient bright line rule set by Belton.

People v Blasich, 541 N.E.2d 40 (1989), and, later, People v. Galak, 616 N.E.2d 842 (1993), have interpreted the New York State Constitution’s “[s]ecurity against unreasonable searches, seizures and interceptions” provision (Article I, § 12) as follows: The Court of Appeals has held that the “search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution… exist[] only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence.” Blasich.

Alternatively, the Court held that police may search the car, even where the arrestee factually cannot reach it, where they have

“probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” (emphasis added) 

The Blasich court further held that “the proper inquiry in assessing the propriety of [the] search is simply whether the circumstances gave the officer probable cause to search the vehicle… Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.” In other words, it is immaterial whether the probable cause justifying the car search is also probable cause of the same offense that justified the initial arrest. As long as there is probable cause of some crime justifying the automobile search, the police may search it.

The question is whether the Supreme Court’s Gant decision last week brings up the U.S. Constitutional test for searches incident to arrest to the point where it is stricter than, more lenient than or the same as New York’s rule.

In order to answer that question, we must first understand what level of certainty the Supreme Court now requires the police to have that they will find evidence in the arrestee’s car. According to Gant, the police may only search an arrestee’s vehicle when when he “is unsecured and within reaching distance of the passenger compartment the time or the search”, or when it is ”reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added) 

How certain must they be that evidence of the offense of arrest may be found in the car? The same level of certainty as “probable cause?” “Reasonable suspicion?” Some new test?

 Orin Kerr offers a fundamental discussion of this question in a post at The Volokh Conspiracy, entitled When Is It “Reasonable to Believe” That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?.

In that post, he rules out the idea that “reason to believe” means probable cause because if that is what it meant, the search would be justified under the “automobile exception” to the warrant requirement irrespective of the “search incident to a lawful arrest” exception. Furthermore, he points out that Justice Alito’s dissent specifically distinguishes the “reason to believe” standard from “probable cause,” indicating that he understood the majority’s “reason to believe” test to be something other than probable cause.

I would add that even though the New York Court of Appeals in Blasich, above, uses the phrase “reason to believe” to mean “probable cause, I do not think it is necessarily relevant in determining the Supreme Court’s intended meaning when using the phrase “reasonable to believe.”

Professor Kerr also reasons that it is unlikely that Terry’s “reasonable suspicion” test is the underlying meaning of “reason to believe.”  As applied to the car search context, “reasonable suspicion” would probably be defined as “whether ‘a reasonably prudent man in the circumstances would be warranted in the belief’ that there was evidence relevant in the arrest in the passenger compartment of the car.” Prof. Kerr opines that this standard would seem difficult to apply in the context of a determination of whether a search for evidence is reasonable, in contrast with its simpler application in a Terry frisk, when the officer has to make a quick decision about whether the person in front of him may be concealing a weapon.

Prof. Kerr concludes that “reasonable to believe” is probably something less than probable cause, but it is not clear to him exactly what level of certainty it is. 

“Reasonable to believe” is most likely less than probable cause. Partly, this is because, as Prof. Kerr pointed out, Justice Alito understood the majority this way in his dissent (and Stevens opinion in Gant also takes note of how influential the Brennan dissent in Belton was in shaping courts’ interpretation of the Belton majority). Also, if the majority opinion had intended to invoke the big gun, the probable cause standard, it should have and probably would have done so explicitly.

But there is another reason why this author believes that the court requires less than probable cause to justify the car search when the arrestee is secured. The fact that the court requires that the officer have a reasonable belief that evidence of the “offense of arrest” might be found in the car indicates that this level of certainty is not synonymous with probable cause. Because if it were, then the probable cause of whatever offense would justify the search of the car under the automobile exception, without the need to invoke the incident-to-arrest exception.

It is evident that the Court is trying to grant added protection to defendants by requiring that the reasonable belief must be that evidence of the offense of arrest will be found specifically because the justification for the search is something less than probable cause. Such a stringency in the search-incident-to-arrest doctrine would not be needed if probable cause that evidence would be found in the car were present and the automobile exception applied.

The court probably requires “offense of arrest” specific reasonable suspicion in order to limit the use of “pretextual stops,” where police pull someone over for some traffic offense, for which the driver could be arrested, because they want to find  evidence of some unrelated offense, in  a search of the vehicle in incident to that arrest.

All of that being said, it appears that New York’s rule is still stricter than the Supreme Court’s rule.

It may appear from the Court of Appeals’ Blasich decision, mentioned above, that New York is more lenient than the Gant case because it allows searches of secured arestees’ vehicles for any offense, while Gant only allows searches for evidence of the offense of arrest.

This is not so, however, because Blasich explicitly stated that the search of a secured arrestee’s car for evidence of any offense is not justified ”as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.”  The New York rule, therefore, permits car searches supported by probable cause that evidence of any offense will be found, using the automobile exception. While Gant holds that police must reasonably believe that evidence of the offense of arrest might be found.

This author believes, therefore, that in situations where a suspect has been secured and police do not have probable cause that evidence of some crime will be found in the car, New York will continue to apply the stricter rule that police may not search the vehicle without a warrant. While outside New York, the new Gant rule will be followed that would allow a search of a secured arrestee’s vehicle when police have a reasonable belief that evidence of the offense for which the suspect was arrested might be found in the car.

Picture courtesy of howstuffworks.

New York’s Fetal Homicide Law & Legal Abortion – The Common Denominator

Prof. Howard M. Friedman, at the Religion Clause blog, reported on the case of Sanders v. State of Texas, decided by the Texas state appeals court just over two weeks ago. In that case, Sanders was convicted of killing Angela Alex and her unborn child. He was convicted based on the Texas Penal Code § 1.07 which “prohibits intentionally and knowingly causing the death of any ‘individual’, and defines ‘individual’ as including ‘an unborn child at every stage of gestation from fertilization until birth.’”

Sanders challenged his conviction, arguing that TX’s definition of the killing of a fetus “at every state of gestation” is unconstitutional because it constitutes a violation the establishment clause of the First Amendment as incorporated against the states by the Fourteenth Amendment. However, the Texas appellate court upheld the TX statute because the statute’s “principal or primary effect” was not to advance religion since it had a valid secular purpose in that it “serves the State’s legitimate secular interest in protecting unborn children from the criminal acts of others.”

While some may find this surprising, many relatively pro-choice states have laws that classify the killing of a fetus as homicide or murder. For instance, the New York Penal Code § 125.00 defines homicide generally as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks…” (emphasis added)

Legislation was introduced on January 15, 2009, just three months ago, which would prohibit the killing of a fetus  “at any state of gestation…” (emphasis added)  The new language would be more similar to the Texas statute, classifying the non-consensual killing of a fetus at any state of gestation as homicide. Even if adoped, the new language would not take effect until November 1st of the year it is adopted and would not affect abortions performed consensually at the behest of the mother by a physician.

Only about one in seven New York residents believes that abortion by a physician should be prohibited. Nevertheless, the legislature stated that their intent was to give greater protection to pregnant women who are abused to the extent that the abuser’s attack causes her to lose her fetus.  The permitting of doctor-performed abortions on one hand and the classification of causing the death of a fetus as murder on the other hand may seem inconsistent, but this dichotomy plays itself out in many other states around the country.

California, a strong pro-choice state, defines murder as “the unlawful killing of a human being, or a fetus…” California cases have defined a fetus as such under the statute at “about 7 or 8 weeks” gestation, when its major structures have been outlined. People v. Valdez (App. 3 Dist. 2005).

States’ classification of killing a fetus as murder is inconsistent with the legality of abortion only if the measuring stick one uses is “when life begins.” But if one considers that legislatures are using a different measuring stick, those positions do not seem as inconsistent. The common denominator that runs between these seemingly inconsistent rules is the legislature’s desire to protect the wishes and rights of pregnant women. Whether the mother wishes to terminate her pregnancy or to prosecute an abuser who terminates her pregnancy through the use of violence, in both cases the legislature’s desire is to honor those wishes.

The fact that even the most pro-choice states classify the killing of a fetus as murder in their criminal statutes indicates that such a classification is certainly not intended as an establishment of religious doctrine as state law. Rather, the fact that states consider non-consensual abortion to be murder while consensual abortion is perfectly legal indicates that in this area of the law, the interests, choices, and wishes of pregnant women are the overriding concern, rather than any attempt at a consistent definition of “when life begins.”

Picture courtesy of Dartmouth Independent.