Monthly Archives: June 2017

Car Stops: Police Search and Seizure

Do you know what your rights are in traffic stop encounters with the police?

“As a Constitutional Law professor at NYIT, whenever I taught the topic of 4th amendment rights regarding the State’s power in search and seizure, the college students particularly perked up in their awareness and paid close attention to that lecture,” said James Misiano of Misiano Law in Hauppauge, N.Y. “They all either were stopped, had friends who were stopped, or heard of traffic stops that evolved into a search of the car for contraband.”

The defining US Supreme Court case, Mapp vs the State of Ohio, and a vast variety of cases that followed, define what police can and can’t do. There are many nuances and gray areas, and like most interpretations in the law, it is not black and white. However, an understanding of the law in this area can be helpful to the motorist.

When one is stopped by a police officer at a traffic stop, the officer does not have blanket authority to search the inside of your car, particularly the glove compartment, trunk and inside your console. An officer may ask you to open the glove compartment or trunk, etc. (it may sound like a demand), but you may legitimately refuse to do so. In that event, the officer must get a warrant to search the car by setting forth “probable” or “reasonable” cause to believe contraband exists to a judge.

If you simply disobeyed a traffic control device or were speeding, such violations of the vehicle and traffic law do not constitute probable cause that there are illegal drugs in your glove compartment, and no search may ensue.   A gun or drugs that are in plain view of the police officer may be seized – but simply stated – the officer does not have carte blanche to turn your car upside down.  If the officer does, voice your objections and record the exchange on your cell phone.

“I have been called by clients at a stop and I recommended filming the incident contemporaneously,” said Misiano. “In all of the incidences, the police officer stopped the illegal search.”

“Recently in Nassau County District Court, I had a client accused of possessing various illegal controlled substances (drugs). He was ostensibly stopped – according to the two undercover police officers – for making a left turn without a signal. At the stop, they claimed they saw drugs in plain view in the back seat and they went on to do a full search of my client’s vehicle. I moved (by written motion) for a probable cause or “MAPP” hearing before the judge. The police officers testified under oath. Under cross-examination, it was learned that they never issued a traffic ticket to my client for the failure to signal his turn. It was clear that a black man entered my client’s vehicle, had a short conversation and left the car. It was obvious to me, and eventually the court, that this was the reason for the stop – an impermissible reason – racial profiling.”

“Both officers gave divergent accounts as to where the undercover car was in relation to my client’s vehicle, how they followed his vehicle and what my client did before the traffic stop. The court found that the “failure to signal” was a pre-text to stop the vehicle, and in fact, the stop was illegal. Since the stop was illegal, any evidence found thereafter was inadmissible in a court of law – known as the “fruit of the poisonous tree,” per Mapp case. The prosecution, now unable to present evidence of the crime, had to withdraw their prosecution of the case and my client went free. This is an illustration of police failure to obey search and seizure laws.”

Traffic stops routinely result in arrests beyond the original traffic infraction. Holding police accountable to constitutional standards is what lawyers do every day.

“If a traffic stop results in something more serious, call me,” said Misiano. “I know what to do.”


TRAFFIC MATTERS – Having Counsel Can Make All the Difference in Traffic Court

Did you ever have to appear in traffic court?  Were you left wondering if you got the best “deal?” Well, chances are if you didn’t have legal counsel, you may have gotten the short end of the stick.

The Suffolk County Parking and Traffic Violation Agency (SCTPVA) is the agency that prosecutes most of the mundane tickets issued to motorists.  Multiple tickets within a three-year period may even cause you to lose your driving privileges.  So, is it really worth the risk to not have representation?

“I handle the defense of traffic violations at SCPTVA,” said Long Island attorney James Misiano. “Many times people are stopped and they are completely unaware that their license was suspended – usually for non-payment of a prior traffic fine that they let slip through the cracks.  It pays to retain counsel to handle traffic violations, even if it’s your first time.”

There are several advantages of retaining counsel in these matters.  Without question, your attorney can plea bargain a better deal on points and fines. “Why,” you ask? The prosecution understands that an attorney – if he opts for a trial – will present a polished, competent defense.  The prosecution will look to avoid the time and expense of trial.

A plea bargain that includes lesser points or no points on your license will save on insurance premiums in the future.  The motorist does not have to attend any other court appearance, and therefore, can attend work or school rather than sit at the traffic agency – which can literally take all day in some cases.

Finally, an attorney can present to the prosecutor certain special circumstances unique to your case, and thus, get that better “deal.”

The bottom line is traffic tickets can affect your ability to drive in New York State, and with reciprocity, in other states as well.  Protect your privilege to drive and retain Misiano Law to ensure covering all bases.

Call us today for a free consultation.