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NYC Criminal Defense Attorney

Totality of Information Can Give Police Right To Search Your Car


Totality of Circumstances Determines if the Police can Search Your Car

By New York City Criminal Defense Attorney Lance Fletcher

As a New York City Criminal Defense Attorney, one of the most commons questions I'm asked by my clients is whether the police were allowed to search their car without a warrant. I was watching a police drama on Netflix recently and a suspect challenged the police about whether the cop could search his car without a warrant to which the cop threatened him with violence if he didn't cooperate. Threats of violence to coerce you into allowing an otherwise unlawful search will not make the search valid but the episode touched on one of the least understood areas of criminal defense. The police can, under certain circumstances, search your car without a warrant. The test for whether they can or not is very technical and often misapplied.

Recently, the First Department upheld a warrant-less search in People v. Mercado, 120 AD3d 441 (2014). In Mercado, the police were watching the defendant. They saw him park, get out of his car and speak with another man. He was illegally parked. When he spoke with the other man, there was a handshake, chest bump or hug and the observing officer thought that a drug transaction had occurred. The officer could not decisively say that he saw an exchange of small items for money but insisted it was suspicious. The front seat passenger returned from a nearby deli and got into the car and as they drove off, the passenger seemed to place something under his seat. The officer followed and after a second traffic violation, pulled the car over. When the officer approached the defendant sitting in the driver's seat, began sweating and crying and said he was afraid to go to jail because he didn't have a valid license. The officer asked and the defendant consented to a pat-down search, search inside the car, and search of his trunk. In his trunk, the officer found 120 bags of heroin.

The dissent reasoned that after the search inside the car, the officer didn't have a valid reason to request a search of the trunk. Unfortunately for the defendant, the majority decided that the officer's questioning was not improper and allowed the heroin to come in to evidence against the defendant.

As a New York City Criminal Defense Attorney, I can see that the court's reasoning is largely based on the numerous observations that, taken together, seem to suggest a drug deal. A chest bump and handshake alone isn't enough but when added to the other circumstances and especially the fact that the driver/defendant said his license was suspended placed him in a very difficult situation. With slightly different facts, he could have successfully suppressed the heroin.

Possession of such a large quantity of heroin (120 bags) is typically charged as a felony and such an offense could lead to significant prison time. An experienced New York Criminal Defense Lawyer can explore ways to fight the charges. If you or a loved one has been arrested in New York,contact us for a Evaluation evaluation.