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Defendant Moves to Suppress Physical Evidence


An undercover policeman, equipped with a hidden transmitter, entered a social club and, for fifty dollars, purchased cocaine from a man in the front room. He left the club and radioed his backup team. Because the transmission was garbled, they understood only that he had made a buy. The sergeant in charge ordered the team to enter the club and secure it so that no one could leave. A New York Criminal Lawyer said he then went down the street to meet the undercover who described the seller: a bearded black male, thirty years old, medium build, wearing a tan cap, brown leather jacket, glasses, white sneakers, dungarees, and a large silver bracelet.

A Bronx Drug Crime Lawyer said that, the sergeant entered the club, found six or eight persons in the front room, but none of them fit the description. They were released. In the back room were twenty to thirty-five people shooting craps. (The defendant claims he was the banker of the game and thus handled all of the wagered money.) The players were made to walk in single file past the sergeant. The defendant was held because he “fit the description a hundred percent”. But, belying certainty, the sergeant also held three or four others because they “partially fit the description”. He had all of them frisked for weapons. Then, obviously to pinpoint the drug seller among the suspects, the sergeant asked which of them had any money. When the defendant and another acknowledged that they had the sergeant said, “Let me have it”. A New York Criminal Lawyer said the defendant handed over $101, included in which were the marked fifty dollars the undercover had used in the purchase. The defendant was told he was under arrest and the others were released.

The defendant was taken by police car to the station where the undercover looked at him through a one-way mirror. He said that “he thought it was him, but he was not sure”. The sergeant said “If you are not a hundred percent sure it’s him, then I’m going to release him”. Again, the undercover responded that “he could not be a hundred percent sure at that time”. While the process to release the defendant was going on, a cap and glasses found in the transporting car were placed on him. After that the sergeant told the undercover that the defendant “fits the description. He has the bracelet. He has the beard, the cap. He has the glasses and he has the jacket. He has the money”. The undercover then identified the defendant as the drug seller.

A New York Drug Possession Lawyer said that, defendant was charged and convicted of criminal sale of a controlled substance, third degree. Defendant filed a motion to suppress the evidence used against him.

The issue in this case is whether defendant, in this drug crime, is entitled to the suppression of the evidence (the money taken from him) used against him.

The Court said that the defendant’s motion to suppress the money taken from him should have been granted. The demand of the police that the four or five suspects held at the social club produce their money and turn it over exceeded the self-protective margin for intrusion fixed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and its progeny, and constituted an unlawful search. Knowledge of the police that a drug crime has been committed could afford no basis for this search, lacking probable cause that the person searched committed the crime. By holding all four or five and demanding their money, the sergeant clearly indicated that he had no probable cause to believe any particular one was the drug seller. At best, they were all merely under suspicion. By searching the defendant in the absence of probable cause particularized as to him, the police exceeded permissible constitutional limits.

The Court said that, the Wade motion should likewise have been granted and the indictment dismissed. Although the undercover was within arm’s length of the seller during the purchase, he was, soon afterward and more than once, unable to identify the defendant as the one who had sold the drug. A New York Sex Crimes Lawyer is identification came only after he had been told by the sergeant that the purchase money had been found on him, a fact totally unrelated to the defendant’s appearance. Identification obtained by telling a witness some fact to establish that the subject is indeed the perpetrator is unreliable and should be suppressed.

Understandably, on the evidence presented, the hearing court did not find that the undercover could identify the defendant at the trial by depending solely upon his observations of him at the social club. Rather, while acknowledging that the identification “seems suggestive”, it improperly left the entire identification question to the jury. No point is served by remanding for findings. The “totality of the circumstances” the under cover’s reiterated uncertainty immediately after his observation at the club transmuted to certainty by the sergeant’s improper disclosure does not meet the People’s burden of proof by clear and convincing evidence and vitiates any in-court identification.

Thus, in view of the foregoing, the Court held that judgment of Supreme Court, Bronx County, convicting defendant of criminal sale of a controlled substance, third degree, be reversed on the law and the facts, the motion to suppress is granted, and the indictment is dismissed.

If you have been improperly charged and convicted of a drug crime, seek the help of a Bronx Drug Crime Attorney. Without the assistance of a Bronx Criminal Attorney you will lose you legal rights to defend your case. Contact Stephen Bilkis and Associates for a free consultation.

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