Even when you haven’t committed a crime or done something unlawful, encounters with police in New York can be overwhelming and stressful – particularly search and seizure. Often, police questions are confusing, particularly if you are uncertain of the best answer, or whether to answer at all. Furthermore, an individual is at a disadvantage to the police by not understanding his or her rights and the laws that protect citizens during questioning, searches, and seizures.
New York police are required to follow due process under the U.S. Constitution’s Fourth and Fifth Amendments. Failure to follow standards of due process can invalidate an arrest or even provide an individual with a claim against the police. However, few people recognize when their rights are violated. At Greco Neyland, we’ve compiled several of the common questions around due process, and New York’s search and seizure laws, specifically.
In this article are three of the questions we hear the most, and high-level answers to each. For more information on New York search and seizure and your rights under due process, contact one of our New York law offices
The police are permitted to stop citizens and question them in a non-custodial environment. For example, the police may ask individuals on the street if they recognize a suspect in a sketch or police rendering. In these instances, you are not under arrest and you are not required to answer any police questions.
At all times in a non-custodial environment, an individual must feel free to go and remain present with the police under his or her own free will. The police cannot take any measures to detain, hold, or seize an individual.
Just as the Fourth Amendment forbids unlawful search and seizures of your person, the Constitutional provision applies to searches of your home, motor vehicle, office building, and other property. Under the Fourth Amendment, the police may not undertake arbitrary searches of your car.
However, the police in New York are provided more leeway for searching a motor vehicle than most other types of property. The police are regularly making traffic stops for burnt out headlights, expired license plates, traffic violations, and drunk driving. In the course of these legal stops, specific circumstances can entitle an officer to search your vehicle.
For example, a police officer can search your car when you provide consent to the search. In this instance, the officer will ask to look in your backseat or the trunk of your car. If you agree by providing an affirmative response, the officer can make the search. By refusing the officer’s request or remaining silent, you have withheld consent to the search. Without a warrant, the officer cannot legally search your car – unless one of the following circumstances is present.
A search of your vehicle is legal if the police in New York have probable cause to make a search, when the officer believes a search is required for his or her own safety, or when the officer has a warrant to search the vehicle.
First and foremost, the New York police must tell you if and when you are under arrest. This is one moment from the movies and television shows depicted accurately. A police officer will actually say, “You are under arrest,” and proceed to tell you the criminal charges leading to your arrest. Second, when you are under arrest, a police officer is required by federal law to read your rights. These are called your Miranda Rights.
Back in 1966, the U.S. Supreme Court decided the case of Miranda v. Arizona, and arrest procedures were forever changed in every state. Federal law enforcement, state patrol, and local police are required to tell a defendant his or her rights upon arrest and before any questions are asked. Not informing an individual of his or her rights is a violation of the Fifth Amendment of the U.S. Constitution.
Your Miranda Rights include: (1) the right to remain silent; (2) you must be informed that anything you say can be used against you in a court of law; (3) you have the right to an attorney; and (4) you must be informed that if you can’t afford an attorney, one will be provided for you. Today, most people are familiar with these rights, yet few people can clearly recall if these rights were read to them during an arrest. Asking if you were Mirandized (read your rights) is likely to be one of the first questions a criminal defense attorney asks.
Were you arrested in New York for a misdemeanor or felony offense? You need a knowledgeable criminal defense attorney on your case. This attorney will consider the substantive and procedural defenses available to you, including if a search and seizure violation occurred. To find such an attorney, contact Greco Neyland at (212)-951-1300 and schedule an initial consultation.
The information in this blog post (“Post”) is provided for general informational purposes only. This Post may not reflect the current law in your jurisdiction. No information contained in this Post should be construed as legal advice from Greco Neyland Attorneys at Law or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.