Many people feel that the traffic court system is designed to maximize municipal profits by discouraging ticket recipients from challenging those tickets.

Nowhere has this policy been made more official than in the Indianapolis traffic courtroom of Judge William Young, whose alleged conduct has brought a class action lawsuit upon him. The suit alleges that when this judge took office, he instituted a policy of levying a $500 fine against anyone who fights their ticket and loses. It further states that he instituted a policy of closing his courtroom to the public, thus shielding his activities from the public eye.

Some plaintiffs were individuals who had received tickets but chose not to challenge them because they asserted that Judge Young’s policy, of fining anyone who challenged their tickets, discouraged them from fighting, even though they thought they were innocent.

While not as egregious as the alleged policies of Judge Young in Indianapolis, recipients of tickets in New York have similarly themed complaints. Often, the structure of the legal system discourages all but a few from fighting even illegitimate tickets.

The court appearances which are required are so numerous and time-consuming that it is almost impossible to fight. Most people don’t understand how the system works and assume that the court date they are given on their ticket is the date when the ticket will be disposed of, either for better or worse. But this is not the reality.

In most localities, the first court date is merely for “arraignments.” This means that people are simply asked to plead either guilty or not guilty. Often, they are also lulled into feeling more comfortable conceding their case by pleading “guilty with an explanation.”  This allows the person to feel that they are at least getting to say something, while still saving the locality the trouble of having to prove guilt. This process can entail wasting several hours, taking off half a day, or wasting an entire evening in court.

If one perseveres and manages to plead “not guilty” on the first court date, he will have to come to court again, but not for an actual determination of guilt or innocence. Rather, he will usually come in for a “conference,” i.e. a meeting between the individual and a local prosecutor. If one makes it this far, most people end up making a plea deal with the prosecutor. So instead of paying, let’s say, $130 for a cell phone ticket+surcharge, you may end up paying only $110. Whoopee!

The prospect of this outcome alone is enough to encourage most people to cut their losses and plead guilty either at their first court appearance, or without even going to court. The time off from work or hours lost waiting in court are often not worth the $20-$30 saved by coming to a plea arrangement with the prosecutor.

For those brave souls who do not come to a plea deal with the prosecutor, there will be a third court appearance for the actual trial. And if you are lucky and the case isn’t adjourned to a fourth date for some reason, that will be your chance to disprove the locality’s case against you and either be found guilty or innocent.

The sheer investment of time and the time one may have to take off from work, depending on the time of the court dates, are enough to discourage most people from challenging their ticket.

For a person with multiple tickets or more serious charges like a misdemeanor or DWI, it is often worthwhile to hire an attorney, like those at our office, to represent him. If you need assistance with a traffic court, criminal, or any other kind of legal matter, you can contact the attorneys at The Law Office of Elliot Schlissel anytime, 24/7, at 800-344-6431, or by e-mail.

Picture courtesy of bizingo.com.

arrest car police officer handcuffs

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 4th Amendment to the U.S. Constitution, as applied against the States by the 14th 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.


[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)

spotlightTwo 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.

gps-tracking-car-device-police

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.

police-search-car-incident-lawful-arrest-belton-gantLast 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 lenient, 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.

drunk-sleeping-behind-wheelIn New York, pursuant to NY VTL § 1192, one may be convicted of the serious criminal offence of Driving While Intoxicated (“DWI”) if he “operate[s] a motor vehicle” while legally intoxicated. The question is: What does it mean to “operate a motor vehicle”? Is it enough to turn on the engine to violate the statute? Can you be arrested for walking toward your car? What if you sit in the car with the keys in your pocket?

In a case in Connecticut, People v. Cyr, officially released just two days ago, Michael Cyr was intoxicated, he started his car using a remote starter, and then sat down in his car, with the keys in his pocket, to go to sleep. The Connecticut court upheld Cyr’s conviction because, it explained, the law in that state is that “[t]he act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle… Each act therefore constitutes operation of the vehicle…”

How does this rule compare to the rule in New York?

In New York, if one is drunk while sitting in his car, and it is reasonable to infer that he (or she) had just driven, or was probably about to drive, he can be convicted of a DWI. In People v. Membrino, 181 Misc.2d. 796, 799 (NYC Crim. Ct. 1999), citing People v. O’Connor, the court stated the following rule for NY DWI convictions: Operating a motor vehicle “includes the act of ‘[using] the mechanism of the automobile for the purpose of putting the automobile in motion even though [the vehicle does not move]’.” (emphasis added)

The court in Membrino further cited the Court of Appeals that “An established line of authority in New York and elsewhere holds that … operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion.” (emphasis added)

As stated above, even if police make a reasonable inference that one is aboutto drive intoxicated, he may be convicted of a DWI. In the case of People v. Marriott, 37 A.D.2d 868, the defendant was observed twice by police in his car; the first time with the engine off and the second time with the engine on. The court there held that since it was reasonable to infer that Marriott was about to dive, the act of sitting in the car with the engine on constituted “operating a motor vehicle” while intoxicated.

In Connecticut, the mere act of sitting in a car while drunk is enough to violate the statue, but New York is slightly more lenient. The Court in O’Connor at least stated that “[w]here there exists a logical, credible explanation such an inference can be defeated [because  t]he definition of operation cannot so alter its ordinary meaning as to create a new crime not intended by the legislature.” 

The defendent has the burden of rebutting the presumption that he was about to drive his car, so specific facts must be garnered showing a reasonable explanation why the defendant was in his car.

As Gideon, at the Public Defender blog points out, a person may just be sitting in his car with the engine on so that he has a warm place in the winter to sleep off whatever he drank. In New York though, the defendant must provide facts which indicate a reasonable, alternative explanation for the client’s presence in the car in order to avoid a DWI conviction.

As always, if you or someone you know has been arrested for a DWI, give us a call.

Picture courtesy of jalopnik.

cellphone-driving1In this post, I am speaking in my personal capacity, and not in my capacity as an employee of the law firm. I want to offer my theory regarding how the NY Cell Phone statute should be interpreted narrowly so as to allow one to use the speaker phone feature of a phone while holding it in the vicinity of the chin. And I would like to illustrate this theory through a personal anecdote.

Ever since I read New York’s anti-cell-phone-while-driving law, I had a hankering to get pulled over so that I could put my law-school-acquired statutory construction skills to good use. For good measure, I xeroxed a copy of the mobile phone statute and kept it with me in the car just in case.

My wish came true a few months ago. I was holding the phone in my hand. It was on the “speaker phone” setting and I was holding it an inch or two below my chin. I was pulled over by a nice Nassau County police officer. After surrendering my license and proof of insurance, he told me that he was going to give me a ticket for talking on the cell phone. I asking him if, since he’d already decided to give me the ticket anyway, I could explain to him why I thought I didn’t violate the statute. Out of a sense of amusement, I think, he gave me the go-ahead.

So I whipped out the copy of the New York VTL (Vehicle and Traffic Law), § 1225-c that I had prepared for just such a moment and I showed him the pertinent parts of the statute that you can read here:

§ 1225-c. Use of mobile telephones.
1. For purposes of this section, the following terms shall mean:

(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.

(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. (These words were just deleted by the NY State legislature on March 6th.)
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.
2.
(a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion…

At first, he argued, “Were you using a hands-free device or not?!”

I retorted that the statute does not require someone to use a hands-free device. Rather, in order to violate 2(a), the actual prohibition in the statute, two elements must be present for the purposes of my case. One has to be (1) “using” a mobile phone and (2) “engag[ing] in a call.” Subsection 1 of the statute defines “using” as “holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” And it defines “engage” as “talking into or listening on a hand-held mobile telephone.”

In my case, while the second element may have been present since I was talking to my father on the phone, the first element was absent. The phone was not “to, or in the immediate proximity of, [my] ear.” It was in the vicinity of my chin, but not my ear! One cannot violate a criminal statute unless the state can prove all elements of the violation, and because the first element was absent in my situation, I did not violate the statute.

The officer responded that what I was saying wasn’t true. It didn’t mean that it had to be by my ear. It just meant that I was in violation merely by holding the phone. In the alternative, he argued that the phone’s position below my chin should also be considered “in the vicinity of” my ear.

I responded that I didn’t think that could be true. If the legislature wanted to prohibit all calls where the cell phone is in one’s hand, it could have left out the definition of “using” in subsection 1, thus leaving only the definition of “engage in a call” as the only operative part of the statute. Then, the mere act of being on a phone call while driving would have been prohibited.

Alternatively, the legislature could have defined “using” as “holding the phone in the user’s hand” without any reference to proximity to the ear. Obviously, since they inserted the language about “proximity to the ear,” they intended only to prohibit calls where the phone is right by the driver’s ear. Not only that, but the statute requires the phone to be in the immediate proximity of the ear, and not merely in the “proximity” of the ear, thus requiring that the phone actually be extremely close to (even if not touching) the ear. Perhaps they even inserted this language specifically to indicate that they were permitting the use of cell phones with the “speaker phone” feature, like mine.

The officer vehemently disagreed with me but nevertheless said that he would not give me the ticket. (!!!) I think he realized that I might take this to trial and didn’t want to be cross-examined by this over-eager, Perry-Mason-Wanna-Be law student. Yay!

Incidentally, my fourth grade daughter made the policy argument that since the reason for the statute is to prevent distracted driving, that perhaps I shouldn’t even use the speaker phone while driving in the spirit of the reason for the statute, which is probably the biggest question on my statutory construction argument.

Picture courtesy of expiredmeter.com. HT  nom de plum.

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