New York Criminal Lawyer Blog
A man is charged with criminal possession of a weapon; criminal possession of stolen property and one count of bribery. He moves to suppress physical evidence seized at the time of his arrest and any custodial statements attributed to him.
On the morning of January 23, 1982, a police officer received a phone call at the precinct from an unidentified male who reported that automatic weapons could be found in the trunk of a maroon Oldsmobile parked near a bar.
Two officers responded and staked out the vehicle. At approximately 2:35 a.m. they observed the accused enter the car and followed him to the parking lot of a bar in a nearby town. When the accused exited the vehicle, the officers approached him, identified themselves and requested his driver’s license and registration.
The accused looked in his wallet but did not have either of these items but did give his name and date of birth. At the suggestion of the police officer that they might be in the glove compartment, the accused used the keys, entered that compartment and then produced the insurance card. The accused stated the insurance was his daughter’s, and in fact she was and lived at the same address as the accused.
A computer check actually made at that time by the police officer revealed that there were then two outstanding active warrants against the accused, a Family Court warrant for non-support and a Vehicle and Traffic warrant for driving with a suspended license.
A New York Criminal Lawyer said he was not handcuffed but was placed in technical custody because of the warrants. No Miranda warnings were given at this time and in fact it is not claimed that the accused made any statements with respect to the matters for which he was then arrested.
In pursuance of their suspicions based upon the phone tip, the police asked the accused if he would open the trunk of the car. After some initial hesitation, the accused man complied, personally using the keys in his possession.
When the trunk was opened the police observed about 50 boxes of ammunition including 125 rounds of nine millimeter ammunition, a rifle case and a military camouflage top. When asked if he would open the gun case the accused man again complied revealing a loaded AR-15 semi-automatic rifle.
Upon moving the gun case a hand grenade was seen which eventually was proved to have been hollowed out. The accused man was then handcuffed and the police officer read him his Miranda warnings.
When asked if he wished to contact an attorney, the accused man agreed thereby invoking his right to counsel.
The police officer nevertheless continued to read the last question on the plastic card usually used by the police and asked if having the rights in mind, the accused man wish to talk without a lawyer. The accused man replied that the grenades are not his. They were put in his trunk. He then indicated that there was something else in the vehicle and that if the police officer would make it disappear, it would be worth his while. The accused man stated that there was a loaded .45 caliber handgun in a gym bag in the passenger compartment of the car.
The police officer retrieved the gun and turned it over to a detective who had just arrived. A friend of the accused man was permitted to call an attorney on his behalf.
After receiving the handgun from the police officer, the detective asked the accused man if he owned it and whether he had a permit. When told by the accused that it was owned by him without a permit, he was again given his Miranda warnings. Immediately thereafter he again permitted a search of his trunk and warned the detective to be careful because somebody had tried to kill him. The second search of the trunk revealed another gun case containing an Uzzi weapon and a box containing a grenade.
The court notes at the outset that the accused man possessed standing to challenge the search of his daughter’s car which he had been driving with her consent.
A policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the handgun crime involved and the circumstances attending the encounter.
A Manhattan Criminal Lawyer said that in the absence of information as to the source of the tip the police officers could initially exercise the common law right to ask the driver to identify himself. The information available at that time did not give evidence of probable cause to believe that criminal possession of a weapon had been committed.
The initial encounter was however within the permissible limits based upon a reasonable suspicion that the accused man was engaged in criminal activity. When the accused could not produce a driver’s license or registration for the car, the police could make further inquiry and upon learning of the outstanding warrants, the accused man was properly arrested.
Since the arrest on outstanding warrants was lawful, the accused was subject to a search and items within the grabbable area were subject to seizure. The search and seizure are prohibited only where, as in traffic violation case, an arrest was not necessary because an alternative summons could be issued or because the arrest was a suspect pretext.
The accused man’s vehicle was parked in a public place, a lot adjacent to a bar and consequently a search of the passenger compartment would have been justified as an incident to the arrest under the automobile exception if there was reason to believe that a weapon would be discovered.
A search of the passenger compartment was not then undertaken as an incident to the accused man’s arrest and the facts belie any police intention to do so. The attention of the police was directed first to the locked trunk of the vehicle without any demonstration of exigent circumstances or of probable cause to believe the vehicle was transporting contraband.
It is possible that the accused was unaware of the contents of the trunk and hoped that by granting permission to the police to look inside he would divert attention from the passenger compartment where he had knowing criminal possession of a weapon.
While it cannot be said that the conduct of the police was overbearing, the accused man may nevertheless have submitted to authority without giving expression to that fact by word or conduct.
The police acted in good faith in relying upon the accused man’s act of consent in opening the trunk and permitting them to look inside and only the strict application of the law with respect to burden of proof precluded a denial of the motion to suppress on that ground. The ruling as to consent is a marginal one in view of the diminished right of privacy in a vehicle parked in a public place.
After the man’s arrest on the active warrants and for criminal possession of the weapons found in the trunk, the accused man is said to have offered to make it worthwhile for the officer if he made a .45 caliber handgun in the passenger compartment disappear. The subsequent search, based upon probable cause, revealed the weapon. He contends that the bribe offer made after he requested an attorney must be suppressed and the search and seizure of the handgun was tainted by use of a proscribed statement and an alleged illegal search of the trunk.
Carrying deadly weapons not only risk our own lives but the life of other people as well. There may be reasons why people carry weapons with them but it should not harm the people around us. If you have been charged of illegal possession of weapons, sex crimes or a drug offense, consult a NY Possession of a Weapon Lawyer. If your case resulted to arrest, feel free to contact a New York Arrest Attorney from Stephen Bilkis and Associates.