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First Amendment

On a spring evening at around 6:30 P.M., a police officer and another police officer were parked in separate marked police vehicles on a residential street in Rochester. One of the officers noticed that a woman (later determined to be the defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, the officer ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota – not a Cadillac. He briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, the defendant man approached the open passenger-side window of the officer’s car, leaned his head in and inquired why the officer had checked the license plate. The officer said something to the effect that he could run a plate if he wanted to.
The defendant man started backing away from the police vehicle towards the middle of the street, swearing at the officer. When the officer asked what he said, the defendant repeated the profanity and accused the officer of harassing him. After radioing his partner that he intended to make an arrest, the officer exited his vehicle and, with the assistance of his partner, placed the defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind the defendant and his girlfriend. In a search incident to arrest, the police discovered that the defendant was with 25 bags cocaine in his possession. The defendant man was subsequently indicted and charged with criminal possession of a controlled substance third degree, criminal possession of a controlled substance fourth degree and disorderly conduct.

The defendant moved to suppress the drugs found on his person, contending that the arrest for disorderly conduct was illegal, rendering the contraband fruit of the poisonous tree. At the suppression hearing, the officer testified to the events described above and the People introduced the videotape of the incident made by the defendant’s girlfriend, which largely corroborated the officer’s testimony. At the close of the proof, the defense counsel argued that the police lacked probable cause for the disorderly conduct arrest because the defendant’s statements were not uttered with the intent to annoy, harass or alarm, the culpable mental state under the disorderly conduct statute. The defense counsel further asserted that the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that the defendant was doing in this case.

Crediting the officer’s uncontradicted testimony, the County Court found that the police had probable cause to make the arrest meaning that the resulting search was lawful and the contraband discovered incident thereto was admissible at trial. Following the denial of the suppression application, the defendant was presented with a plea proposal that would simultaneously resolve the drug possession charges and unrelated assault charges from a separate pending indictment. If the defendant pleaded guilty to one count of criminal possession of a controlled substance third degree in satisfaction of this indictment and one count of assault second degree in satisfaction of the assault indictment, the County Court promised that he would receive concurrent terms of six years in prison plus appropriate post-release supervision (five years on the assault conviction and three years on the drug conviction). The court clarified that this disposition would not preclude the defendant from challenging the denial of suppression on appeal, which defense counsel indicated was his intent. The defendant accepted this resolution, pleading guilty to the two offenses in satisfaction of both indictments, and the County Court imposed the agreed-upon sentence.
In an appeal from the judgment in the drug possession case, the defendant sought review of the suppression ruling but the Appellate Division summarily affirmed. In a separate appeal, the defendant sought vacatur of his plea in the assault case in the event that he succeeded in his challenge to the suppression order. That appeal was also rejected by the Appellate Division. A Judge of this Court granted the defendant leave to appeal from both Appellate Division orders and the County Court reverse.

To Be cont…

When faced with unexpected situations, people who are hiding something illegal react guiltily. If you want to pursue a cocaine or drug possession lawsuit and you want to make sure that you will get a favorable verdict, the New York City Drug Possession Lawyer or the New York Cocaine Possession Attorney from Stephen Bilkis and Associates.

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