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Fiandach & Fiandach (Rochester NY)

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The Motion to Suppress

February 14, 2008

Last month we looked at the motion to dismiss.  This week we take a detailed look at its more prominent cousin, the motion to suppress.

One of the more peculiar aspects of alcohol influenced operating offenses is that they are perhaps the only crime where one can actually be convicted by a machine.  Although the results of a DNA or ballistics test may go far toward circumstantially establishing the defendant's commission of a criminal act, when the defendant is charged with a violation of Vehicle and Traffic Law '1192(2), a result in excess of the statutorily permitted maximum is the criminal act.  As these cases are tried to jurors who, in their daily lives, are dependant upon technologically sophisticated equipment to make decisions, it increasingly develops that the result of the defendant's motion to suppress is dispositive of the question of guilt or innocence as well.


That having been said, let's turn to the motion to suppress.  The defendant's dispositive application to suppress is set out in CPL Article 710.  Insofar as it is relevant to a chemical test of a motorist's blood, this arti­cle per­mits a crim­i­nal de­fen­dant who is "ag­grieved by un­lawful or im­proper ac­quisi­tion of evi­dence" which he or she be­lieves will be offered in a crim­inal ac­tion, to re­quest that the court or­der such evi­dence sup­pressed or ex­clud­ed.  Pri­mar­ily this re­quires the de­fendant to es­tab­lish that his or her test falls with­in the pur­view of CPL '710.20(1) in that it is "tangible proper­ty ob­tained by means of an un­lawful search and sei­zure under circum­stances preclud­ing admissi­bility thereof . . .  . "  Although subdivision (5) clearly provides that Article 710 is available when a sample of the defendant's blood is drawn pursuant to the warrant provi­sion contained in '1194(3), what of the more routine situation?  Is a chem­i­cal test had upon implied or actual con­sent "tan­gi­ble evi­dence"?  Yes.  In Peo­ple v. John­son, (1987) 134 Misc2d 474, 511 NYS2d 773, this is­sue was squarely pre­sented for the court's con­sider­ation.  Recognizing that in Mapp v. Ohio, (1961) 367 US 643, 6 LEd2d 1081, 81 SCt 1684, the High Court applied the tenets of the Fourth Amend­ment to "all evidence," the New York City Criminal Court, citing  Schmerber v. California, (1966) 384 US 757, 16 LEd2d 908, 86 SCt 1826 and Davis v. Mississippi, (1968) 394 US 721, 22 LEd2d 676, 89 SCt 1394, remarked that although the taking of a breath sample "is less intrusive than the draw­ing of blood, it is not less intru­sive than the taking of fingerprints."  Observing that each of the foregoing have been sub­ject­ed to Fourth Amend­ment standards of rea­sonable­ness, the court was compelled to conclude that breath is similarly included.  Nor may one ignore People v Moselle, (1982) 57 NY2d 97, 454 NYS2d 292.  In Moselle, the Court of Appeals found suppression to be warranted upon the failure to strictly comply with the rele­vant provisions of the Vehicle and Traf­fic Law.


Tangible property alone, however, will not mandate suppression.  Ex­clusion of evidence at a crim­i­nal trial also requires that the prop­erty be obtained by "unlawful search and seizure."  While what is or is not an "unlawful search and sei­zure," is clearly outside the scope of this discussion, several areas of examination can be suggested.  Was the vehicle stopped in the absence of a reason­able suspicion that "the vehicle's occupants had been, are then, or are about to be, en­gaged in con­duct in vio­lation of law" (See, People v. Sobotker, (1978) 43 NY2d 559, 563, 402 NYS2d 993).  As recently noted by the Second Department, "[t]o achieve a lev­el of reasonability, the police officer's sus­picion must be 'based upon specific and articulable facts which, taken to­gether with rational inferences from those facts, reasonably warrant [the] intrusion'" (People v. Riggio, (1994) - AD2d -, - NYS2d -, 1994 WL 94245, quoting, Peo­ple v. Ingle, (1975) 36 NY2d 413, 420, 369 NYS2d 67).  A stop conducted in the absence of such a showing will most assuredly result in suppression of a chemical test which is thereafter given inasmuch as it will constitute a fruit of the poisoned tree (see, People v. Royko, (1994, 4th Dept) - AD2d -, 607 NYS2d 515).  Like­wise, con­sent, implied or otherwise, is fertile turf for suppression (see, People v. Donnelly, (1984) 103 AD2d 941, 479 NYS2d 786; People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626).

Even if the motorist refused, such re­fus­al, if it occurred after the statu­tory two-hour period, may be the object of a mo­tion to suppress (People v. Walsh, (1988) 139 Misc2d 161, 527 NYS2d 349).


Is there a claim that the defendant was denied his or her right to counsel (see, People v. Gursey, (1968) 22 NY2d 224, 292 NYS2d 416).  This area is particularly broad.  Not on­ly is there a basis for suppressing any state­ments the defendant may have made after the attachment of such a right, but a chemical test or the refusal to submit to such a test (People v. An­derson, (1991) 150 Misc2d 399, 568 NYS2d 306; People v. Martin, (1989) 143 Misc2d 341, 540 NYS2d 412) is sub­ject to suppression if the de­fen­dant re­quested and was de­nied the op­portu­nity to con­sult with counsel pri­or to adminis­tration of the test.


While the foregoing was relatively straight-forward in that each situation clearly in­volved a question of a constitution­al na­ture, there exists a grey area in chemical test suppression, scientific integrity.  What of the sit­u­a­tion where the defen­dant main­tains that the test was not properly giv­en or is oth­er­wise unreliable notwith­standing the fact that it was law­fully administered; may such a test be the subject of a motion to suppress?  While the cases seem to go both ways (com­pare, People v. Pantaleo, (1988) 141 Misc2d 251, 536 NYS2d 369; People v. Singh, 144 Misc2d 402, 542 NYS2d 1018), in reality they don't.  The hold­ing of a pre-trial motion to suppress where the allegations stem from unreli­able or inaccurate adminis­tration, as opposed to acquisition, are clearly dis­cretionary with the Court.  As pointed out by Judge Renee White in People v. Pantaleo, supra, such hearings arise from a pragmatic concern for the prejudice to the defendant that would enure from the ad­mis­sion of proof ultimately found in­ad­mis­sible at trial as well as a concern for judicial economy.  Although referred to with near uniformity as sup­pression hearings, they are not.  As noted by Judge Joseph Kevin McKay in People v. Serrano, (1989) 142 Misc2d 1087, 539 NYS2d 845, such a hearing is "not strict­ly a stat­utory or constitutional sup­pres­sion hear­ing. It [is] one designed to make an in limine evidentiary ruling as a matter of law on [the issue of] admissibili­ty" (Serrano, at 1088; see also, People v. Mora, NYLJ 8/30/91 p. 18, col. 6).  The distinction is crucial.  The denial of a hearing based upon the discretionary power of the court will seldom be seen as error (see, People v. Nania, (1991, 4th Dept ) 177 AD2d 1015, 578 NYS2d 34, app den 79 NY2d 951, 583 NYS2d 205).

Assuming there exists an adequate basis, how does one successfully obtain a hearing on a motion to suppress?


Procedurally, suppression, like any other application for pre-trial relief, is governed by CPL Article 255.  In brief, CPL '255.20 requires that all applications be made in a single set of papers within forty-five days of arraignment.  Equally important is CPL '710.60 and subdivi­sion 3(b) in particular.  When the basis for the motion is the acquisition of tan­gible evidence, as opposed to a state­ment or identification testimony, "the motion papers . . . must contain sworn allegations of fact, wheth­er of the defendant or of another person or persons, supporting such grounds."  To add teeth to this requirement, CPL '710.60(3)(b) provides: "The court may summarily deny the motion if: * * *  The sworn allegations of fact do not as a matter of law support the ground al­leged; except that this paragraph does not apply where the motion is based upon the ground specified in subdi­vision three or six of section 710.20."  While the cases decided under this subdivision are re­plete with declarations that the re­quired factual allegations were either deficient or altogether lacking, until last November when the Court of Appeals decided People v. Mendoza, (1993) 82 NY2d 415, 604 NYS2d 922, 624 NE2d 1017, very little had been writ­ten as to what would and would not warrant the hold­ing of a hearing on a motion to sup­press.

Initially declaring that "[h]earings are not automatic or generally available for the asking by boilerplate allegations," Mendoza presented four factual sit­u­a­tions.  In the first, a "buy-bust," de­fense counsel's affirmation gen­erally al­leged that the ac­cused was "act­ing in a law­ful man­ner," that cur­ren­cy was re­moved from his per­son, that there was no rea­son­able suspi­cion, and the stop was in violation of his Federal and State Con­stitutional rights.  Counsel's affidavit in a com­pan­ion mat­ter likewise denied being in­volved in any unlaw­ful ac­tivity at the time he was seized.  A third ac­tion, wherein the defendant sought suppression of a gun, con­tain­ed more fac­tual de­tail than the pre­vious two, but only con­tin­gent­ly denied possession of the firearm, al­leging "if the weapon was discarded by the defendant, this action only occurred as a result of illegal police conduct."  In the fourth and final matter presented, the affirmation pro­vided that the defendant was searched by a licensed peace officer or one acting under such an officer, a fact the People denied.

In affirming the denial of hearings in all but the final situation, Chief Judge Kaye, eschewed a bright line rule for an analytical approach which calls for (1) an examination of the moving papers, (2) the context of the defendant's motion, (3) infor­mation available to the defendant and (4) the court's discretionary power to con­duct a hear­ing.



The initial examination, the papers submitted, mandates that the motion court determine whether the papers submitted raise a factual dispute on a material point or consist of "merely legal con­clu­sions."   While the distinction between factual and conclusory allegations may be incapable of a precise formulation, Judge Kaye, in a decision which was concurred in by all but Judge Levine (who took no part), most appropriately opted for an "I know it when I see it" approach (see, Jacobellis v. Ohio, (1964) 378 US 184, 197, 12 LEd2d 793, 84 SCt 1676, [Stew­art, J. con­cur­ring]) by providing a concrete example of the most arduous facet, the mixed question of law and fact.  Commencing with Peo­ple v Reynolds, (1988) 71 NY2d 552, 528 NYS2d 15, a case in which the Court split 4 to 3 over wheth­er the term "cur­ti­lage" was factual or conclusory, the Court seemed to say that allegations which leave the "what's and where's" open to supposition will be conclusory.  Thus, in Reynolds, "curti­lage" failed to adequately support the motion since the term begged the out­come by placing the contraband within a constitutionally protected area.  It did nothing to demonstrate that the mari­juana was within an area to which a Con­stitutional protection would attach such as, in the words of the court, "the mar­ijuana was growing 25 feet from my front door and was sur­rounded by a white picket fence."  Phrased somewhat differently, if the allegations in support of the motion merely allege the conclu­sion which one desires to be drawn in­stead of setting forth facts which compel the desired outcome, ie: "there was no rea­son­able sus­pi­cion to stop my vehicle," as opposed to "I oper­ated my vehicle at the posted speed of 35 miles per hour between Kaltman Avenue and Spectrum Street whereupon I signaled for a right hand turn which I made while keeping my vehicle entirely within the lane de­signated for such turns," it will be deemed conclusory.

The second Mendoza factor is some­what more straight forward.  Once a determination has been made that the papers contain factual as opposed to conclusory allegations, it is necessary to ask whether all of these allegations are sufficient in light of what is previously known in the case.  Here, in what may come as a surprise to some, the Court indicated that the "de­fen­dant must ad­di­tionally deny par­tici­pat­ing in the trans­action or suggest some other grounds for suppression."  While the Court chose to il­lus­trate this point by discuss­ing a so-called "buy-bust," let's consider the alle­gations set out in the preceding para­graph.  In the context of an ini­tial stop for "erratic op­eration" (see, Peo­ple v McAleavey, (1986) 133 Misc2d 987, 509 NYS2d 278, affd, 159 AD2d 646, 553 NYS2d 38), the forego­ing would probably be sufficient.  If, however, the defen­dant was arrested at the scene of an ac­cident, a hear­ing could appropriately be denied unless the de­fendant were to offer a lawful excuse for the accident and arrest such as, "I com­pleted my turn and was forced off the road by the arresting officer."


The third Mendoza consideration, information available to the defendant, is one of fairness.  Here Judge Kaye drew an analogy to motions to suppress identification testimony.  Since the de­fendant was not present during the identification pro­cedure falling under scrutiny, it would be unfair to force him or her to make factual averments concerning that which he or she knows nothing about.  In the area of alcohol influenced operating offenses, sobriety checkpoints immediately come to mind.  As we all know, to pass Federal Consti­tutional muster, the process must be carried out in a neutral and non-arbi­trary fashion.  A defendant who is arrested as the result of such a stop has no ability through which to judge the means in which the operation is executed.  It would therefore be unfair to require that a motion seeking sup­pression as a result of such a stop factually aver the means in which the checkpoint failed.


The final element, the court's discre­tionary power to con­duct a hear­ing, "[w]hile technically not part of the test for determining the sufficiency of factual allegations" (Mendoza, at 429) is wor­thy of thoughtful consideration.  CPL '710.60(3), the opinion notes, does not mandate summary denial when the alle­gations are deficient.  The statute mere­ly provides that "the court may sum­marily deny the motion" (emphasis pro­vided in Mendoza).  With an eye to­ward the pragmatic side of criminal liti­gation, Judge Kaye wisely observes that "[i]f the court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived plead­ing deficiency" (id).  Reality teaches us that reasonable minds may differ.  Accordingly, such considerations "militate in favor of this procedure" (id, at 429 - 430), so as to avoid the ex­pense and difficulty which would arise in the event that an appel­late court ulti­mately determines that a Mapp or sup­pression hearing should have been held.

Does Mendoza apply when the basis for the hearing is scientific validity?  As a motion made in limine seeking an opinion as to the admissibility of a particular piece of evidence, it probably should not.  Even so, in People v. Garneau, (1986, 4th Dept) 120 AD2d 112, 507 NYS2d 931, the Court held, with citation to CPL '710.60(3), that the failure "to assert particularized, factual allegations," warranted summary denial of a pretrial motion to suppress the results of a Breathalyzer7 test upon the ground that it was affected by radio frequency interference (Garneau, at 114).

Before leaving suppression hearings, let's briefly clear up some misconcep­tions regarding the burden of proof.

When the defendant challenges the le­gali­ty of a search and seizure, he or she has the ultimate bur­den of the proving ille­gal­i­ty of the search (People v. Ber­rios, (1971) 28 NY2d 361, 367, 321 NYS2d 884; People v. Kelty, (1978) 95 Misc2d 246, 406 NYS2d 972) by a fair prepon­derance of the credible evidence (People v. Dougall, (1984) 126 Misc2d 125, 481 NYS2d 278).  Irre­spec­tive of this responsibility, how­ev­er, the Peo­ple nev­er­the­less have "the bur­den of going for­ward to show the legali­ty of the po­lice con­duct in the first in­stance" (Ber­rios, at 367, emphasis supplied herein).


Where consent is alleged, the Peo­ple still shoulder the initial bur­den of estab­lishing the legality of the police conduct and must also prove will­fulness of the defendant's consent by  "clear and positive" (People v. Zimmerman, (1984) 101 AD2d 294, 475 NYS2d 127) or "clear and convinc­ing" (People v. McNeely, (1980) 77 AD2d 205, 433 NYS2d 293; People v. Tinneny, (1979) 99 Misc2d 962, 417 NYS2d 840) evidence (see also, People v Gonzalez, (1976) 39 NY2d 122, 125, 383 NYS2d 215 "heavy burden of prov­ing defendant's consent").  When the question to be resolved is the voluntariness of the defendant's statement, the burden starts and remains with the People who must prove that the admis­sion was voluntarily made (see, general­ly, People v. Anderson, (1977) 42 NY2d 35, 396 NYS2d 625) beyond a reason­able doubt (People v. Witherspoon, (1987) 66 NY2d 973, 498 NYS2d 789; People v. Anderson, at 38; People v. Huntley, (1965) 15 NY2d 72, 78, 255 NYS2d 838).

When the defendant challenges the reliability or accuracy of a particular test, assuming the court grants a hearing, the best rule seems to be that it is the People who have the burden of proving the reliability of the test or technique by clear and convincing evidence (see, People v. Hughes, (1983) 59 NY2d 523, 547, 466 NYS2d 255).



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