February 12th, 2014
The United States Supreme Court Will Rule on This Matter
The United States Supreme Court recently agreed to hear a case regarding whether a police officer can search the cell phone of an individual under arrest without obtaining a search warrant. Today cell phones contain an enormous amount of information about an individual. The legal issue presented to the Justices of the United States Supreme Court is whether the information obtained from a warrantless search of an individual who is under arrest’s cell phone is an unreasonable search in violation of the individual’s fourth amendment rights to the US Constitution. Prosecutors throughout the entire country are paying attention to two cases the Supreme Court has before it dealing with warrantless cell phone searches. The technological advances made regarding the amount of personal information stored on cell phones will have a significant impact on American’s lives and the ability of law enforcement agencies to obtain personal information from cell phones.
Searches of Individuals Under Arrest
Police officers can search an individual and the area around him without a search warrant at the time of an arrest. This is to ascertain the individual is not armed and does not have weapons near him or her that could be used to injure the police officers. The police also can secure evidence maintained on the defendant related to the reasons for his or her arrest.
The first case before the Supreme Court involves an individual by the name of David Riley. Mr. Riley was convicted in California of three charges relating to a situation in San Diego in which gun shots were fired at a car. The prosecutors were able to produce evidence from a photograph on his cell phone that showed him standing in front of a car similar to the one that was at the crime scene.
In the second case before the United States Supreme Court the Federal Government is appealing an Appeals Court decision that tossed out three drug and fire arm charges against Brima Wourrie. Wourrie had been convicted by a jury in Massachusetts. The U.S. Circuit Court of Appeals said in a ruling in May, that police officers could not search Wourrie’s phone without a warrant.
The United State Supreme Court is expected to hear oral arguments on both cases in April of this year.
Opinion of the Writer
The United States Supreme Court should not allow warrantless searches of cell phones. Cell phones are mini computers today that maintain enormous amounts of personal information. The technology that allows ever expanding amounts of information to be maintained on smartphones should be protected under the Fourth Amendment to the United States Constitution which bars unreasonable searches without warrants.
The Law Offices of Elliot Schlissel are composed of five attorneys. The attorneys represent individuals charged with crimes throughout the Metropolitan New York area. The firm has extensive experience in representing individuals charged with misdemeanors and felonies. The criminal defense lawyers at the Law Offices of Elliot Schlissel are available to deal with criminal matters seven days a week.
January 21st, 2014
In the beginning of May 2013, Christian Munez was arrested for possession of marijuana. He was brought to the 44th precinct in the Bronx. He was questioned by Sergeant Christopher Pascale. Sergeant Pascale did not read Mr. Munez his Miranda Rights. Mr. Pascale questioned Mr. Munez about other crimes in that area of the Bronx. He alluded to the fact Munez was lying and stated “I wouldn’t be surprised if you had a gun.” Sergeant Pascale noted Munez’s evasive reaction to the discussion of there being a gun in his home. This caused Sergeant Pascale to question another man who had been arrested at the same time with Mr. Munez. This other defendant acknowledged that there was probably a gun in Munez’s home.
Search of Munez’s Home
Police officers went to Munez’s apartment. While the officers were at Munez’s apartment, Sergeant Pascale went back to the precinct. He told Munez that if they found a gun in his apartment, everyone in the apartment would be arrested and jailed. The officer advised him, in the event he refused to consent they would get in touch with his parole officer. The parole officer could search the apartment without a warrant and cause everyone in the apartment to be incarcerated.
Judge Suppresses the Seized Gun
District Court Judge Louis Kaplan suppressed the gun seized from Munez’s home. His decision stated the police representations about getting the search warrant to Christian Munez, and everyone would be arrested invalidated Munez’s consent for the search. Judge Kaplan stated the involuntary consent and a similar consent to a search obtained from Munez’s father required that the gun police found be kept out of evidence. Judge Kaplan further stated in his decision “where police have an honest basis for their statement, it is not coercive to make it.” “But false threats made in order to obtain consent deprived the suspect of a free and informed choice based on the realities before him.” The judge also held the representations to Mr. Munez that his family members would be arrested if he did not consent to the search was also coercive.
December 11th, 2013
New York is one of two states which allow juveniles to be tried as adults at age 16. The large majority of states do not allow prosecution as an adult until such time as the individual reaches the age of 18. It should be noted an individual of age 18 is considered an adult for purposes of voting.
Juveniles who are tried as adults and sentenced to an adult prison facility do not do well in these prisons. In most situations they end up being tutored by hardened criminals to become better criminals once they get out of jail. Teenagers in New York State who commit crimes should be dealt with under a juvenile justice system and not an adult legal system. In a juvenile justice system, they can receive rehabilitation services and training. They can also avoid obtaining a criminal record that will stay with them for the rest of their lives and have a negative impact on their obtaining a job.
Bill In the New York State Legislature Regarding Juvenile Justice
Judge Lippman, the Chief Judge of the State of New York, has proposed a new piece of legislation to the New York State Legislature which calls for the creation of a special court for 16 and 17 year olds charged with non-violent crimes in the State of New York. This proposal asks that courts have judges with special training concerning adolescent development and therapeutic approaches to juvenile criminal activity. It is suggested in this proposed legislation, if the case is resolved, no criminal charges should be filed against these adolescents. The fingerprints should be destroyed and the criminal records are to be sealed. Judge Lippman’s goal is to treat children as children. He doesn’t want them treated as adults with the stigma of a crime on their record for the rest of their lives.
Judge Lippman has the right idea. Putting juveniles in jail destroys their lives, is not cost effective, and is not the best route for an enlightened society to take in dealing with the crimes of a non-violent nature. I hope the New York State Legislature passes the new legislation.
December 4th, 2013
Recently eighteen graduates from the Nassau County Drug Treatment Court Program had a celebration. This was the thirtieth graduation from the Nassau County Felony Treatment Court. The court which combines therapy, random drug testing and court appearances provides an alternative to jail for alcoholics and drug offenders.
The Court’s Success Rate
More than 400 people have been involved in the program at the Nassau County Felony Drug Treatment Court since 2009. Of these 400 individuals, only 3 have committed crimes again. This is an outstanding achievement.
Cost Savings from the Court
The Nassau County Drug Treatment Court is saving the taxpayers of Nassau County millions of dollars. The treatment program costs far less than incarcerating the individuals charged with crimes. Individuals involved in the program have stated the program has “institutionalized compassion.” Instead of treating the people in the program as criminals they are treated with humility. The program lasts eighteen months. In addition, it is followed by a one year conditional release. Individuals who graduate from the program, who have been charged with felonies, can have their convictions dismissed or reduced to misdemeanors. In addition, they can have their record sealed in certain circumstances.
Judge Frank Gulotta who sits in the County Court in Nassau County stated with regard to the program that it is a “reclamation project.” He requested the program be expanded to include other individuals charged with felonies. Among those other individuals he would like to see included in the program are those charged with identity theft. He made this suggestion because many of the drug offenders are involved in identity theft too. He went on to state “instead of letting someone sit in prison for umpteen years, you are essentially producing people who can be productive members of society.”
Elliot Schlissel Esq. and his associates provide aggressive legal representation for individuals charged with misdemeanors and felonies throughout the metropolitan New York area. In addition, they represent individuals being investigated for criminal activity.
Hot Pursuit of an Individual Suspected of Committing a Misdemeanor Does Not Allow Police Officers to Enter His Home
November 21st, 2013
Judge John Wilson sitting in the Criminal Court of Bronx County was recently presented with a case involving a warrant-less entry into a man’s apartment. Police officers were investigating a crime scene in the Bronx. Mr. Cruz approached the scene and threw a piece of metal at one of the police officers. The police officer claimed the piece of metal almost struck him. Thereafter the police tried to arrest Mr. Cruz. Mr. Cruz did not wait around long enough for the police to successfully arrest him.
Mr. Cruz ran to his apartment. The police entered his apartment and claimed Mr. Cruz resisted arrest. The police charged Mr. Cruz with possession of a weapon, resisting arrest, and obstructing governmental administration. The police officers claimed they saw that Mr. Cruz had in his possession and control a handgun which was located in his mattress.
Cruz Seeks to Have Criminal Charges Dismissed Based on a Warrant-less Search
Cruz took the position the police did not have authority to enter his home and search it without a warrant. The district attorney’s office took the position the police did not need a warrant because they were in hot pursuit of Mr. Cruz. Judge John Wilson claimed the hot pursuit exception allowing for warrant-less searches only applied when they were pending felony charges. In this case, Judge Wilson took the position since the allegations against Mr. Cruz only amounted to misdemeanor criminal charges there was not a strong enough stated reason to justify a warrant-less search of his apartment. The judge’s ruling stated the police were without authority to arrest Mr. Cruz in his apartment without a search warrant on a misdemeanor charge.
Elliot Schlissel has acted as a criminal defense attorney for men and women being investigated and charged with crimes throughout the metropolitan New York area.
September 18th, 2013
In a case in London, England, a British DNA database of cat’s DNA was used to convict a man of the crime of manslaughter. John Wetton of the University of Leicester stated “this is the first time cat DNA has been used in a criminal trial in the U.K.”
Investigators found the dismembered torso of David Guy. His dismembered torso was found in trash bags. Detectives found cat hair at the scene. The cat hair was matched to a cat named Tinker, which belonged to one of the victim’s neighbors.
As a result of the DNA cat hair evidence, Mr. Hildre, age 47, was tried and sentenced to life in prison. The cat has been adopted by new owners!
About The Author
Elliot S. Schlissel, Esq. is a criminal attorney with more than 37 years of legal of experience. His law office represents clients all types of criminal matters throughout the metropolitan New York area. The office can be contacted for a free consultation.
September 9th, 2013
In October of 2012, the Appellate Division of the Third Department, an Appeals Court in the State of New York, found a jury should have been instructed intoxication, without further evidence, did not establish reckless driving. Upon making this ruling, the court set aside the conviction of a defendant named Goldblatt.
Goldblatt had been convicted of aggravated vehicular homicide, vehicular manslaughter in the first degree, manslaughter in the second degree (2 counts), assault in the third degree, reckless endangerment in the second degree, driving while intoxicated (two counts) and reckless driving.
Goldblatt had been driving an SUV in a 40 mile an hour zone at 55 miles per hour. His car went off the road. He hit two people who died from their injuries.
Goldblatt’s lawyers argued on appeal he should not have been convicted on the top count of the indictment which was aggravated vehicular homicide. Their position was this conviction was not supported by sufficient evidence. They claimed the Court at the trial level did not properly instruct the jury regarding the criminal charge of aggravated vehicular homicide. The appeals court reversed the conviction on the aggravated vehicular homicide. The case was sent back for a new trial on this criminal charge. The reason for the Judge’s finding was he agreed with Goldblatt’s lawyers’ argument that the jury had not been properly instructed as to what they must find to convict him of this criminal charge.
August 19th, 2013
In a recent case in Bronx Criminal Court, Judge John Wilson threw out the criminal charge of attempted criminal possession of a weapon against a defendant named Black.
Police Heard Gun Shots
Police Officer’s testified they heard gunshots. Upon hearing the gunshots, they traveled in the direction of the sound of the shots. While traveling in that direction, they observed Mr. Black and two other individuals. They initially were walking. When the police approached the three of them, the two other individuals stopped. However, Mr. Black continued to walk and thereafter started to run as the officers pursued him.
The police officers testified when they saw Mr. Black running, his right arm had been tucked over his waistband. Upon being questioned further, they stated they did not know what type of object, if any, he had at that time.
The District Attorney asserted that the police officers had a reasonable suspicion of criminal activity due to Mr. Black’s actions after they heard the gun shots.
Gun Evidence Thrown Out By Court
The Court took into consideration no evidence was submitted to show Mr. Black and his friends were involved in the gun shots. The Assistant District Attorney claimed the gun shots and Mr. Black’s actions gave the officer’s objective credible reason to approach and make an inquiry. However, the Court took the position there was no nexus between the gun shots and Mr. Black’s actions. The Court held Mr. Black had the right to refuse to cooperate with the police. He could walk away if he wanted, or run away. The Court felt the police officers were not justified in stopping and pursuing him. The Court’s decision was there was an absence of probable cause to stop Mr. Black, search him and seize the gun. Therefore the Court suppressed the gun from being introduced into evidence.
No gun, no case!
April 18th, 2013
A man had parked his car illegally. A Police officer walked up to the car. He asked the man if he should be aware of anything in the car. The man consented to a search of the car. The police officer found a handgun in the car.
The issue presented to an Appellate Court in upstate New York was “[did the police officer have] reasonable suspicion to make the inquiry?” The Appeals court found there was none. The Court said the police must have “founded suspicion” of a crime before asking a motorist if he or she has a firearm. As a result, the Appeals Court threw out the search for the handgun. The handgun could not be used as evidence of the illegal possession of the weapon.
The Fourth Amendment to the United States Constitution establishes a standard police must meet before intruding into the personal space of Americans. The Fourth Amendment specifically protects Americans from unreasonable searches and seizures.
The court’s decision specifically stated while the police officer had an “objective credible reason” for approaching the illegally parked car he was not justified in making an inquiry about the contents of the vehicle without a “founded suspicion that criminal activity is afoot.”
About the Author
Elliot S. Schlissel, Esq. and his associates provide criminal defense legal services for individuals being investigated and charged with crimes throughout the metropolitan New York area. Our law firm is available seven days a week to assist our clients. Call for a free consultation.
September 24th, 2012
In a case before Gerri Pickett in the criminal court of Kings County the Judge found the accusatory instrument charging an individual with driving while intoxicated was facially insufficient. Her conclusion was based upon the fact there were no actual allegations supporting the charges essential elements in the accusatory instrument filed by the Kings County District Attorney’s office.
The accusatory instrument alleged that a police officer observed an individual named Padmore standing with a non-party named More. The officer’s statement alleged Padmore stated “he hit and sideswiped another vehicle.” Damage was caused to the other vehicle. Other individuals then drove his car away from the scene of the accident. The officer further stated she observed Padmore to be intoxicated.
Evidence Of A Criminal Offense
The Court’s decision stated in New York Criminal Procedures Law Section 60.50 for an individual to be convicted, in addition to a confession, there had to be evidence the criminal offense was actually committed. The Court found the prosecution did not meet the minimum requirement of facial sufficiency. There is a question as to whether Padmore “operated the vehicle.” Since no one saw Padmore driving the vehicle his own statement was the only proof of the officer’s conclusions. Since there was no corroborating evidence of driving while intoxicated, the Judge dismissed the case.
About The Author – New York Criminal Defense Lawyer
The Law Office of Elliot S. Schlissel has been representing men and women charged with misdemeanors and felonies throughout the metropolitan New York area for more than 34 years. Call the law office for a free consultation.