09 Dec KNOCK, KNOCK, IT’S THE POLICE: A CRIMINAL LAWYERS’ ANALYSIS OF OVERZEALOUS SEARCHES AND YOUR EXPECTATION OF PRIVACY
You are minding your own business, double parked, engine running, while waiting for your friend to run into Chipotle and pick up some burritos. A police officer approaches you and tells you that you are parked illegally. He starts asking you questions……do you have to answer him? Can you drive away? What if he wants to search your car? Should you let him? Can he search it without your permission? If he chases you, do you have to stop?
What if you are walking down the street and a cop comes up to you and demands your ID? Do you have to give it to him? Can he detain and frisk you?
You are at home and receive a knock on you door. You open up……it’s the cops. Do you let them in? Can they search your apartment? Do they need your consent?
What if, as a result of the car search, body-frisk or apartment search, the police find something illegal? Can it be used against you at trial?
Simply put, what are your rights and when are they violated? Although there is no substitute for detailing the events, your actions, and the actions of the police with an experience Manhattan or Brooklyn defense attorney, it is important that you know your rights when confronted with one of these situations.
What happens if the police did not have the requisite information for the action that they took? The New York State Constitution has strict guidelines regarding the ways in which the police can obtain evidence and case law has established a basic framework for measuring the legality of the intrusiveness of police action in New York State.
There are 4 levels of permissible police intrusion by the Court of Appeals. In People v. DeBour, the basic framework for measuring the intrusiveness of police action in New York State was created. The first level permits an officer to approach a citizen and request information. However, the officer must have an objective, credible and particularly reason to do so. It does not have to be based on criminality. The second level permits a momentary stop, if there is a “founded suspicion that criminal activity is afoot.” Under the third level, an officer may use force to stop and detain a person if the officer has a reasonable suspicion that the individual has committed, is committing, or is abut to commit a crime. Lastly, an officer may make an arrest if he has probable cause to believe that an individual has committed a crime.
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