On Friday, October 24th, Andrew Safranko presented an ‘Update in Criminal Law and Criminal Procedure’ at the Lake Placid Mirror Lake Inn  Resort and Spa on behalf of the Federation of Bar Associations Fourth Judicial District  .

This update focused on the relatively new legislation on sealing criminal records for drug offenses in New York, as well as recent developments with cell phone privacy, 911 tips, and a defendant’s right to know if and when his attorney called, among others.

Here are some of the excerpts from Mr. Safranko’s presentation.  For a copy of the entire presentation please contact  Andrew at ars@dani.


Search of Cell Phone Requires Warrant

“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”  Riley v. California, 573 U.S. ___ (2014); No. 13-132 [6/25/2014].

On June 25, 2014, the Supreme Court of the United States ruled that police officers may not search through the cell phone of a person upon making an arrest without a warrant. By a unanimous 9-0 decision, in Riley v. California, the Court held that smart phones, tablets, and other devices cannot be searched without a warrant. The Court stated that nowadays, individuals have an expectation of privacy with their smart devices, something that could not have possibly been conceived when the framers drafted the Constitution hundreds of years ago. The Court reasoned that modern cell phones “are not just another technological convenience,” because “they hold for many Americans the privacies of life.” To intrude into that privacy would be a violation of the Fourth Amendment, which protects citizens against unreasonable searches and seizures.

The Search incident to arrest doctrine was not extended to digital phone data.  Phone can be examined for features that could cause physical harm, but access to information on the phone must wait for warrant approval.


Traffic Stop Based on 911 Unanimous Tip Permissible

Navarette v. California,  134 S.Ct. 1683.  SCOTUS ruled that a traffic stop based on an anonymous 911 tip was permissible because it provided the police with reasonable suspicion that the driver of the vehicle was intoxicated.  The decision stems from an incident in California where a motorist allegedly ran a woman’s vehicle off the road with his truck. The woman then called 911 – anonymously – explaining what happened and describing the truck.  The police quickly responded, and pulled over the truck matching the description provided by the anonymous tip.  When the police approached the car, they smelled marijuana, and eventually arrested the driver of the truck on drug charges. The defense claimed that the stop and search violated the driver’s constitutional rights because the police officers did not have a reasonable suspicion to pull him over in the first place.  The Supreme Court disagreed, holding that “under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated.”  This suspicion was derived solely and exclusively from the anonymous tip, and not from any observations made by the police officers.

Prior to the traffic stop, the California Highway Patrol knew nothing about the 911 caller.  They did not know her name, her phone number or her address; they did not even know what county she called from.  The fact that she chose to remain anonymous also raises serious questions about the caller’s reliability.  The officer did not witness the events that ultimately resulted in a 911 call.  In fact the California Highway Patrol did not witness anything to support the stop of the vehicle.  There were no indications that the driver they pulled over was intoxicated at all.  He did not violate any rules of the road, had no outstanding warrants, and was by all outward appearances driving completely normal.   The Court held that the information supplied by the tip, and the short period of time alleged between the incident and the tip, suggested the 911 caller was a reliable eye witness, and that the information she gave was credible enough to support pulling over a driver otherwise obeying the rules of the road.


Police Must Tell DWI Suspect that Attorney Called

In 1968, the Court of Appeals held that a defendant has the right to seek legal counsel before consenting to take a chemical test.  People v. Gursey, 22 N.Y.2d 224 (1968).  Earlier this year, on May 6, 2014, the Court of Appeals extended this holding that law enforcement must inform a defendant that his attorney advised him earlier by telephone not to consent to a chemical test.

In People v. Washington, 2014 NY Slip Op 03190 [May 6, 2014], a defendant was accused of driving while intoxicated and striking and killing a pedestrian.  An attorney for the defendant called the police station to intervene on the defendant’s behalf, prior to the administering of a chemical test.  The defendant’s attorney made contact with the police and indicated “we are not consenting to any form of testing whatsoever.”  The defendant was not informed about this phone call, and subsequently consented in writing to a blood test.  Thereafter, the attorney sought suppression of the blood test.  The Court of Appeals held that the statutory right to legal consultation applied when the attorney contacted the police station prior to the chemical test, and the police must inform the defendant, whether the communication from the attorney was in person or over the phone.  The chemical test was thrown out despite the fact that the defendant admitted she consumed four beers and the test was otherwise properly conducted.