NEW YORK CRIMINAL PRACTICE SPRING 2014 ALDEA
Ch. 1 – Investigations
A. State Constitutional Law:
• Search and seizure: search of the property/place; seizure of a person
• U.S. Constitution – 4th Amendment: there must be probable cause to obtain a search warrant, protects places/persons/things against unreasonable searches and seizures, presumption is that a search performed without a warrant is unconstitutional.
• NY State Constitution – Art. I, § 12: identical to the 4th Am. of the US Constitution
• Test for Searches & Seizures: Was there a search or seizure?
• 1. Was there a reasonable expectation of privacy? (subjective test)
• Highest expectation of privacy is in one's home
• If no, there is no constitutional issue
• If yes, ask if the interference unreasonable (did police violate 4th Am)?
• 2. Is the expectation of privacy reasonable? (objective test)
• Reasonableness can be disregarded if a life is in jeopardy
• If no, there is no constitutional violation
• If yes, should the evidence be suppressed?
• 3. Should the evidence be suppressed?
• Depends on the “pendulum”, matter of public policy
• If no, then the evidence can be used and ultimately D will have no remedy
• If yes, then the evidence cannot be used at trial
• What is the difference between interpretive and non-interpretive review?
• Interpretive review: makes a textual comparison- looks at the texts/language itself, adoption history, structure and purpose affirms rights rather than limiting government action.
• Non-interpretive review: compares policy, justice and fairness; looks to see if there is pre-existing authority, looks at history and traditions of the state, particular local concerns and the distinctive attitudes of citizenry.
• People v. PJ Video: case dealt with obscenity; rejects the totality of the circumstances approach with regards to search warrants.
• Search and Seizure in NY: Probable Cause
• Probable Cause: the constitutional safeguard against arbitrary police action.
• The heart of search and seizure jurisprudence
• “A nebulous concept” that “is the constitutional safeguard against arbitrary police action.”
• Required by the 4th Am., but not defined – must rely on case law and statutory interpretations.
• CPL: does not define “probable cause” – instead uses the term “reasonable cause” (See CPL § 140.10, 690.10, 120.20).
• Reasonable cause = probable cause (CPL § 70.10(2)).
• “Reasonable cause to believe that a person has committed an offense exists when circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.”
• Reasonable suspicion: a quantum of proof which is measured by a lesser standard than probable cause.
• How does the issue of probable cause arise (at a suppression hearing)?
• Police gets a warrant from a magistrate
• 4th Am. requires PC based on an oath
• Magistrate assesses evidence to see if PC exists; either:
• Arrest – reasonable suspicion that the suspect had committed a crime; or
• Search: reasonable belief that evidence will be found where searched)
• D argues that the warrant should not have been issued bc there was no PC; hence, the evidence should be suppressed.
• Police do not get a warrant (“warrantless search” or “warrantless arrest”)
• D argues that the evidence should be suppressed bc before the search the officer lacked PC (i.e. they sought a warrant, a magistrate would not have given to them).
• Quantum of Proof Required for PC: Probability, not certainty (i.e. 51%)
• Fluid concept, unique in every case
• Requires pragmatic analysis of real life situations, not legal technicalities.
• Objective, not subjective, test of reasonableness
• Vantage point to a prudent, reasonable, cautious officer guided by experience and training.
• Based on all information known to an officer at time of the search or arrest: “totality of the circumstances”.
• PC may be erroneously relied upon, there may be PC even without knowledge or with malicious intent, PC can be lost (determined at the exact time of the search/arrest).
• Also depends on the source of the information
• Source of Information to Acquire PC:
• Non-hearsay: Personal Observation of Officer:
• Officer simply swears to what he observed
• Observed by 5 senses, or
• Enhanced senses (i.e. binoculars, drug sniffing dog).
• Hearsay: Reports from Others:
• Must satisfy the Anguilar-Spinelli Test (see below)
• Informants (can be confidential, eyewitnesses, victims, etc.) (this information constitutes hearsay, admissible if falls under one of the exceptions).
• Aguilar-Spinelli Test (NY Hearsay Rule for PC): Reports from Other Sources:
• 1. Informant must be reliable (veracity prong), and
• 2. Informant must have a sufficient basis for his knowledge (basis of knowledge prong) (i.e. did the person see it? or is it double-hearsay?)
• This test must be satisfied if D raises an objection to the source of the info
• Identity of Informant (Aguilar-Spinelli Test)
• Eyewitness/Victim:
• Reliability: presumed
• Aguilar-Spinelli Test does apply, but it is presumed to be satisfied
• There is a legal presumption that a person (eyewitness or victim) is presumed reliable because they leave their contact information with the police and can be held liable if th
Permissible Conduct on Less Than Probable Cause
• People v. DeBour: actions that fall short of a seizure (i.e. approaching and/or questioning) must be commensurate with the amount of suspicion an officer has.
• Established a “graduation of permissible police authority with respect to encounters with citizens in public places” which “directly correlates the degree of objectively credible belief with the permissible scope of interference.”
• Not a rigid classification of police encounters, but rather a “flexible set of escalating responses.”
DeBour Test: (See chart)
• Greetings:
• Level: 0
• Police Action: Friendly, innocuous questions or greetings are ok.
• Level of Suspicion Needed: None
• Requests for Information:
• Level: 1
• Police Action: Ask for information.
• When officers are performing public functions, there is wide latitude.
• When officers are performing criminal law enforcement, less latitude (questioning must be limited to: identify of destination and reason for being in location).
• Level of Suspicion Needed: Objective credible reason for request, not necessarily indicative of criminality.
• Common Law Right of Inquiry:
• Level: 2
• Police Action: Accusatory questions that focus on a particular person as the target of an investigation.
• Level of Suspicion Needed: Founded suspicion that criminal activity is afoot.
• When it rises to the level of intimidation
• Forcible Stops:
• Level: 3
• Police Action: Forcible Stop
• Level of Suspicion Needed: Reasonable suspicion that D is committing, has committed, or is about to commit crime (misdemeanor/felony, not violation).
• This is the level needed to stop an automobile (exception: traffic stops, traffic stops can also create a pretext for the stop).
• “Pretext stops” – allowed in NY, follows and objective test
• Reasoning: the subjective intention of the police officer is never determinative, rather it is the objective reasoning of a police officer (how could the court measure the subjective thoughts of an officer? Otherwise, courts would have to inquire into the individual police officer's knowledge, experience and intelligence).
