Tuesday, May 02, 2006

CA: defendant does not have to admit "possessing" drugs to establish standing to challenge police search

People v Burton, __ NY3d __ [available here]

Mr. Burton was walking down the street when he was stopped and searched by a police officer. One bag of crack was found in Mr. Burton's pocket, and he was arrested. Mr. Burton's attorney made a motion to suppress the drugs, alleging "that defendant was walking alone on the street when he was stopped and searched 'for no apparent lawful reason'", and that the arresting officer noted on the felony complaint that one bag of crack was "recovered . . . from the defendant's person." (Burton, __ NY3d at __.) The People at trial opposed, "arguing that defendant lacked standing to ask for suppression because he did not expressly acknowledge that he had, in fact, personally possessed the cocaine that was recovered from his person, and his reliance on the police officer's allegation in the felony complaint was inadequate to confer standing." (Id..) The trial court agreed, and denied the motion without a hearing. (Id..)

In a decision handed down today, the Court of Appeals held "that the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were sufficient to satisfy the factual allegation requirement of CPL 710.60[1] and thereby establish standing to seek suppression." (People v Burton, __ NY3d at __.) Judge Graffeo wrote for the unanimous Court. The Court made clear that evidence generated by law enforcement could be relied on by a defendant to establish standing to challenge a search:

[W]e have repeatedly observed that, in assessing the adequacy of a motion to suppress tangible evidence, a defendant is entitled to rely on the People's proof to demonstrate standing. The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument or from testimonial statements elicited by the prosecution. Our decisions further point out that witnesses for the People--including police officers--are among '[]other person[s]' (CPL 710.60[1]) whose factual assertions may be used in a motion to suppress. Based on this case law, defendant could meet his evidentiary burden by supplementing the averments made in his motion to dismiss with the police officer's statement that the drugs were recovered from defendant's person. Defendant was therefore not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of 710.60.

(Id. at __.)

The Court further distinguished a "buy and bust" scenario from "a search based on the furtive behavior of a person". Where a defendant is arrested for buying drugs from an undercover officer, the defendant has to actually "'deny participating in the transaction or suggest some other grounds for suppression" to obtain a hearing. (Id..) But as the Court notes,

where probable cause for a search is premised on the furtive behavior of a person, we have observed that an accused can 'raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched' and discovered contraband in the process. A claim of this nature questions whether police action was legally authorized at its inception, and in this situation a hearing is required to determine, as a factual matter, whether the defendant engaged in suspicious or unlawful conduct giving rise to probable cause justifying a search.


Not a particularly groundbreaking decision, but a nice clarification of the factual assertions necessary to obtain a probable cause hearing in New York.