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Defendant Contends Use of GPS Tracking Device by Police was Unlawful


On 9 August 2003, an officer, formerly a detective with the Town of Glenville Police Department in Schenectady County, received a report that a local McDonald’s restaurant had been robbed by a man brandishing what appeared to be a handgun and an axe; a handgun crime. That information was distributed to other law enforcement agencies, including the State Police. A New York Sex Crimes Lawyer upon learning of the robbery, a police officer (the officer), who was on patrol with his partner, contacted another officer, a senior investigator with the State Police, who then instructed the officer to set up surveillance on defendant’s residence and, if defendant appeared, to execute a “felony stop” utilizing extreme caution to ensure officer safety.

The police officer and his partner took up position nearby and, as defendant rolled through a stop sign en route to his residence, he identified defendant, whom he described as a “very distinctive looking individual,” as the operator of the pickup truck in question to which the GPS tracking device previously (and validly) had been affixed. The police officer and his partner pulled in behind defendant in his driveway and, as defendant was exiting his truck, drew their weapons, ordered defendant from the vehicle and down to the ground, handcuffed defendant and placed him in the back of their marked police vehicle. A New York Sex Crimes Lawyer said numerous police officers responded to the scene, including the senior investigator, who instructed another investigator to access the GPS tracking information. While waiting for this information, the police officer observed an axe and a bag of clothing, in plain view, in the bed of defendant’s pickup truck.

The GPS tracking information revealed that defendant’s pickup truck had been in the vicinity of the McDonald’s restaurant at the time of the robbery in Schenectady County; the truck then returned to the Town of Clifton Park, Saratoga County and made a brief stop on Maxwell Road, where defendant apparently was employed, before proceeding to defendant’s residence.

Thereafter, defendant was placed under arrest, roughly 35 minutes after he had been detained by the police officer and his partner and transported to the State Police barracks in Clifton Park, where he received his Miranda warnings.

Defendant’s vehicle was towed to the State Police barracks, where the officer photographed the axe and clothing visible in the bed of the pickup truck. The officer and others then separately brought two McDonald’s employees out to view the axe, each of whom identified it, based upon a distinctive marking on the blade, as the axe they had seen during the course of the robbery. Subsequently, a search warrant was applied for and obtained authorizing a search of defendant’s vehicle and place of employment, the validity of which defendant does not challenge, and a black knit ski mask, a black pellet .177 caliber handgun and a quantity of currency were among the items recovered.

Defendant was charged in an eight-count indictment with various theft-related crimes following the August 2003 armed robbery of a McDonald’s restaurant in Schenectady County.

A Nassau County Sex Crimes Lawyer said the defendant pleaded guilty to robbery in the first degree, without waiving his right to appeal, and was sentenced to 20 years in prison and five years of post-release supervision, after the County Court denied his request for a Mapp/Dunaway hearing.

Upon defendant’s initial appeal to the Court, decision was withheld pending completion of a Mapp/Dunaway hearing to further develop the record regarding, among other things, the circumstances surrounding the application for a search warrant authorizing the installation of a global positioning system (hereinafter GPS) tracking device on defendant’s vehicle and that of his live-in girlfriend, the execution thereof and the manner in which the physical evidence sought to be suppressed was recovered.

A Queens Sex Crimes Lawyer said based upon the evidence adduced at the hearing, the court concluded that the search warrant authorizing the placement of the GPS tracking device on defendant’s vehicle was valid. However, as to the circumstances surrounding defendant’s arrest, the manner in which certain physical evidence was seized and the admissibility of defendant’s statements to law enforcement officials, the court again concluded that the record had not been sufficiently developed, withheld decision and remitted the matter to County Court to conduct an appropriate hearing.

The aforesaid hearing has been completed; thus, the defendant’s appeal.

The crux of defendant’s argument on appeal is that he was under arrest from the moment the officer and his partner confronted him in his driveway with their weapons drawn, that there was no probable cause to arrest him at that point in time and, therefore, any subsequent statements made by him or physical evidence seized constitute fruit of the poisonous tree and must be suppressed.

Defendant does not dispute that the officer possessed a reasonable suspicion that a crime had been committed and, therefore, was authorized to forcibly stop and detain him in the first instance. The question before the Court is whether that investigatory stop ripened into a full-blown arrest. Resolution of this inquiry, in turn, centers upon whether a reasonable person, innocent of any crime, would have believed he was arrested if he was in the defendant’s position.

Contrary to defendant’s assertion, the propriety of an investigatory stop does not hinge upon the precise words or actions employed. Neither the fact that the troopers drew their weapons nor the fact that defendant was handcuffed is dispositive of whether defendant’s detention was elevated into an arrest. Indeed, police officers who find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being must be permitted to take reasonable measures to assure their safety and they should not be expected to await the glint of steel before doing so. An investigatory stop may be upheld if the authorities knew that a crime actually had been committed, the total period of the detention was brief, the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant and there is no proof of significantly less intrusive means available to accomplish the same purpose. In the court’s view, that standard was met here.

The testimony at the suppression hearing established that the officer knew that a crime, an armed robbery, had occurred. The officer also knew that defendant had a prior history of and currently was under investigation for committing similar crimes and that the suspect in this particular robbery displayed what appeared to be a handgun. Defendant was detained in his driveway for approximately 15 to 20 minutes before the officer arrived and observed the axe in the bed of the pickup truck, and an additional 10 to 15 minutes elapsed before he obtained the information from the GPS tracking device placing defendant in the vicinity of the robbery, resulting in a total detention of 30 to 35 minutes. The record further reflects that the senior investigator diligently pursued the retrieval of the GPS tracking information which, in turn, quickly confirmed the troopers’ initial suspicions. Finally, there is nothing in the record to suggest that the troopers could have both responded to the developing situation and safely ascertained whether defendant was involved in the crime under investigation without detaining defendant in the fashion that they did, particularly considering that they had knowledge of defendant’s violent criminal history, his previous escapes from custody and his prior stated intention to use a firearm against police officers.

Given the facts, the court cannot say that the mere pat-frisk of defendant undertaken at the scene was sufficient to dispel the troopers’ concerns for their safety and/or neutralize the very real threat that defendant posed to them. Notably, neither the officer nor his partner searched defendant’s vehicle at the scene and, therefore, could neither rule out the presence of a weapon therein nor, without handcuffing and physically restraining defendant, ensure that he did not have access thereto.

Simply put, the record reveals that the State Police conducted a lawful investigatory detention, fully supported by reasonable suspicion that defendant had been involved in a violent crime, and this detention was not transformed into an arrest when the troopers ordered defendant out of his vehicle, placed him in handcuffs, and secured him for approximately 30 minutes, since each of these actions was justified by the particular exigencies involved in the investigation.

Henceforth, as defendant’s arrest was supported by probable cause, his suppression motion was properly denied. The court need not address defendant’s fruit of the poisonous tree claims. The judgment of conviction is affirmed.

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