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Defendant was criminally engaged in possession


This is drug crime where defendants are charged with one count of Criminal Possession of a Controlled Substance in the Second Degree.

The challenge is directed to the motivation for and legality of a search for stolen property which also resulted in the not surprising seizure of other items including cocaine, alleged to have been found in “plain view”.

A Suffolk County Drug Crime attorney said that defendants are brother and sister and at all times relevant to these proceedings were residents at the subject premises in Long Island, a one-family house on about three acres of secluded property approximately 300 feet from the road.

In October 1980 the Sergeant was advised by phone from California that his apartment had been burglarized with a loss of stereo and camera equipment and the loss of a motorcycle. The sergeant knew the complainant and was on friendly terms with him and members of his family.

At police request he confirmed his telephonic conversation with a letter. Despite the Sergeant’s inquiries and phone conversations relating to this investigation, nothing of significance happened until December 1980 when the Sergeant came upon and recovered the motorcycle being driven by another subject. Sergeant advised of this event and noting the favorable result asked him whether in return he could “set up some kind of a buy” so that there could be a “narcotic bust on Barber.”

In January independent efforts were made by law enforcement officials to obtain evidence that defendant was selling controlled substances out of those premises. These efforts were not successful and were terminated in February, 1981.

The complainant later signed an affidavit to the effect that his house was burglarized, that certain specified items were missing, and that in October, 1980 he spoke with criminal Defendant and she admitted she “had taken all the stuff” and was holding it for repayment of $1,280 (sic). Further, he set forth the facts about his visit on June 23, 1981 to the Barber house and his observation of the stereo set. For reasons hereinafter set forth, the court rejects the allegation that Sparer never saw or signed that affidavit.

The warrant was not executed on that date because nobody was home.

In July 1981 ten officers went to the target premises and upon admission went to the bedroom of defendant where in “plain view” they saw the stereo referred to in the application for the warrant and also observed five packages of a white powder believed to be cocaine, a large package of a brownish substance believed to be marijuana, a scale and other implements used in the narcotics trade and some ammunition for a weapon and a Canon A-1 camera. There were no members of the narcotics squad among the members of the raiding party although such an officer accompanied those who tried to execute the warrant on June 1981.

The premises were secured but the property was not seized. Instead the officers went to a Village Justice and in the early morning hours of July 2 secured another warrant authorizing search for narcotics, narcotics implements, firearms and the camera.

Upon return to the premises the items referred to above were seized and form the basis for the subject indictments. In addition, a weapon was found but the charges with respect thereto are still pending in the District Court.

Plain view alone is never enough to justify the warrantless seizure of evidence. The discovery of the object must have been inadvertent and not planned or anticipated by the authorities. There is no doubt that the police in this case suspected that the Barbers or at least Defendant was criminally engaged in the possession and/or sale of controlled substances. They would have used any lawful means available to them to obtain the necessary evidence to enable them to prosecute.

The application of June 1981 for the search of the criminal defendant residence represented an effort to provide evidence of a crime independent of any investigation into illegal drug activity. It was not a ruse to obtain entry into the Barber residence to search for drugs.

Nevertheless, the police were aware of the possibility that the lawful search of the premises might reveal the presence of contraband of that character. The ultimate discovery was not a complete surprise. The question is whether it may be regarded as having been “anticipated” and therefore could not be regarded as having been found in plain view.

No New York case has been cited or found which explicitly resolves this issue. But there are several Federal cases which do.

The United States Court of Appeals in a careful and detailed analysis of the term “inadvertent” reversed a finding of the District Court and concluded that suspicions that the house to be searched might contain narcotics did not amount to probable cause and the discovery of the drugs during the search did not violate the inadvertence requirement for a plain view seizure. It distinguished between expecting to find evidence in a particular place and probable cause to believe it to be there.

This conclusion was consistent with an earlier decision in which the police made the foreseeable discovery and seizure of a passport during a warrantless arrest but which the court said was nevertheless unplanned and inadvertent.

Since eavesdropping warrants were held to be “based on substantially the same principles applicable to search warrants for physical evidence”, the Court held that while the authorities “knew of the defendant and even may have entertained questionable suspicions as to his plans” they nevertheless lacked probable cause to seek amendment of the warrant to include these crimes and therefore the anticipated conversations when intercepted were deemed to have been discovered in plain view.

Suspicion was not equated with anticipation. The test was whether probable cause existed to believe the crime was being or would be committed.

The defendants challenge the truthfulness of the affidavit of Detective to the extent that he relies upon information previously provided in the form of an affidavit.

The criminal defendant has failed to meet his burden of proof to establish that the affidavits supporting the warrants were perjurious. In addition, the court notes that although the initial warrant contained an unjustified no-knock provision the police took some pains not to rely on it, instead choosing to return at a later date when the defendants were at home.

Where the warrant contains language which is not supported by probable cause, it may be upheld under the doctrine of severability if the surviving portion of the warrant is complete with reference to the surviving part.

Accordingly, the severing of this provision does not affect the validity of the search.

Illegal arrests conducted by police officers should not be tolerated. Here in Stephen Bilkis and associates, our Suffolk County Criminal lawyers will help you prosecute these officers by helping you file a formal charge in Courts. We also have Suffolk County Marijuana Possession, who are always ready and willing to help you in this kind of drug crime.

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