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There is an element of fortuitousness here

This is a motion by the complainants to reargue a prior decision of the County Court suppressing evidence. The complainants contend that the Court of Appeals compels the conclusion that, contrary to the prior holding of the County Court, none of the three named defendants had standing to contest the seizure of the contraband herein and that, as a result, their suppression motions should have been denied.

The threshold question is whether the re-argument motion, made more than thirty days after entry of the orders granting suppression, is time-barred. The defendant contends that it is.

It is ordinarily true that a motion to reargue may not be made beyond the time within which to appeal from the prior order. This is so because re-argument may not be used to extend the time in which to appeal or to revive a right to appeal which has been extinguished. Where, however, the prior order is still open for review by an appellate court, a motion for re-argument will lie, especially when based upon an intervening change in controlling law.

In the case at bar, the complainants timely filed notices of appeal from the orders granting the named defendants’ suppression motions. Those appeals are currently pending before the Appellate Division although they have not yet been submitted. Thus, the instant motion for re-argument does not extend the complainants’ time to appeal, or revive a right to appeal which has expired. It is therefore both timely and proper.

The facts here were submitted upon stipulation and were fully set forth in the Court’s original opinion.

Briefly stated, the three named criminal defendants and one man were jointly charged with the cocaine possession and other contraband recovered by police who entered the man’s apartment under authority of a defective search warrant. Because of the defect in the warrant, the complainants did not oppose the suppression motion of the man, the legitimate and lawful tenant of the apartment, but argued that the other three defendants lacked standing to challenge the police entry into the premises and the resulting seizure of marijuana because they had each acknowledged that they were merely guests in the apartment and had no legitimate privacy interest in it.

Noting that the law of standing in New York was less than entirely clear, the three defendants were entitled to challenge the seizure because they had been charged with constructively possessing the contraband jointly with the man who did have standing.

Referring to a similar case of a convicted frisked defendant, the police stopped and frisked the defendant and two companions on the street. The frisks revealed nothing on the defendant, but one of his companions was found to be in possession of a starter’s pistol. All three men were arrested for jointly possessing the weapon. A subsequent search of the defendant at the precinct uncovered a loaded and operable weapon in his pocket. Charged only with possession of that weapon, the defendant moved to suppress it as the fruit of an unlawful arrest. Robbery was not involved.

In a brief memorandum, the Court of Appeals held that the conduct of the frisked defendant and his companions on the street had been equivocal and insufficient to justify the initial stop by the police. The Court concluded that the weapon, later seized from the defendant incidental to his unlawful arrest, should have been suppressed.

Where the issue is relevant, every criminal defendant has “standing” to complain that his own arrest was not supported by probable cause, that is, that the police did not possess information sufficient to warrant his arrest and that therefore, evidence obtained as a result of the arrest ought to be suppressed.

The issue of standing, however, is not generally thought to relate to the question of the sufficiency of information supporting an arrest, but rather to the question of whether the defendant has the right to challenge the means by which the police came at that information or gathered other evidence sought to be used against him. The Court of Appeals has now held that the frisked defendant is to be read only for the proposition that the defendant there had “standing” to challenge the sufficiency of the information prompting his arrest. Thus, the frisked defendant may no longer be seen as a “standing” case in the usual sense.

This clarification of the frisked defendant is not without significant ramifications. Suppose, for example, that the unlawful frisk of his companion had produced, not a starter’s pistol, but a distinctive item–an unusual diamond–which the police recognized as the fruit of a robbery just committed nearby by three as yet unidentified men. Considering the proximity in time and place between the robbery and the stop, and the fact that the three men were walking together, the discovery of the diamond on the companion might well provide the police with sufficient cause to forcibly detain, or even arrest, all three men. Suppose, further, that, following this detention, each of the men voluntarily made an inculpatory statement, and each was identified as a perpetrator in a constitutionally sound identification procedure.

In these circumstances, the companion would plainly have standing to challenge the frisk and be entitled to suppression of the diamond as well as his statement and subsequent identification. Under the new reading of the frisked defendant, however, the frisked defendant himself would be in a very different position. He would only have “standing” to argue that the circumstances, including the discovery of the diamond on the companion, were not sufficient to warrant his detention. He would not have standing to challenge the frisk of the defendant which uncovered the diamond although he himself had been subject to a contemporaneous and equally unlawful stop and frisk by the very same officers. The diamond itself, together with the resulting evidence, the statement and the identification, would all be admissible against the frisked defendant.

Thus, in such a case, the consequences of the unlawful police conduct would turn solely upon which of the perpetrators happened to be physically carrying the contraband which they each jointly, and in contemplation of law, equally possessed.

The case at bar represents a situation more frequently encountered such as the alleged joint possession of narcotics in an apartment. Again, under the new interpretation of the frisked defendant, the consequences of unlawful police conduct will depend entirely upon whose apartment the perpetrators elect to use. There is an element of fortuitousness here that some may find disturbing.

Moreover, if, the exclusionary rule has as an objective the social benefit of deterring unlawful police conduct, some may seriously question whether that purpose is served by the Court’s holding. For instance, what is there now to deter police from acting on the merest suspicion of drug activity by raiding apartments in drug-prone areas, confident in the knowledge that, should they discover illegal narcotics, they can successfully prosecute everyone inside the apartment save only the lawful tenant?

Some who feel that the exclusionary rule exacts too high a price on the interests of society will undoubtedly welcome the approach taken by the Court of Appeals. Others will take a very different view. What is plain, however, is that, after some two and one-half years, the Court of Appeals has brought clarity into this State’s law of standing.

In any event, because the prior orders of the Court remain open for appellate review, and because none of the three named defendants has made any assertion of a personal legitimate expectation of privacy in the apartment here in question, the motion for re-argument should be granted and, upon re-argument, the suppression motions of each of the three named defendants should be denied for lack of standing to complain.

Using controlled substances and weapon possession often goes hand in hand. If you were a victim of drug related crime and you want to make sure that you send your offender in jail, a Kings County Cocaine Possession Attorney or a Kings County Drug Possession Lawyer from Stephen Bilkis and Associates is the most reliable counsel to approach.

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