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.

SUM –Why is it so Important to your Auto Insurance?

May 4, 2017

What do the letters “S-U-M” mean and why is it so important concerning your auto insurance? Well, SUM stands for Supplementary Underinsured Motorist coverage.  To drive in New York State one needs a minimum basic 25/50 policy for third party liability.

That means in any auto accident, if you are sued, you have $25,000 coverage available for any one person making a claim against you and $50,000 available to all parties making a claim against you (if there is more than one).

This is really an inadequate amount of liability coverage in today’s world.  What happens if you are in an auto accident and the other party is at fault and they only have this minimum $25,000 available for your claim against them?  Further, what if your medical bills and lost time far exceed $25,000 – not to mention your pain and suffering from your injuries?

Here is where SUM comes into play. If you yourself have a $300,000 liability policy, you can add to your coverage $300,000 SUM. What this means is that after you collect on your claim against the party at fault from his insurance company of the $25,000 limit, you can then seek damages with a claim against YOUR OWN COMPANY by filing an SUM claim. $275,000 would be available to you, the injured party ($300,000SUM coverage less the $25,000 collected from the party at fault).

There are some technicalities such as one must file the SUM claim within a reasonable time of discovering the other driver has coverage inadequate to “cover” your damages, and one must obtain your own company’s consent before accepting the policy limits of the faulting party’s coverage.

If you only have minimum SUM coverage, we advise it’s time you speak to your insurance broker about a change in coverage.

Misiano Wins Federal Appeal Judgment for Client

May 3, 2017

On April 24, James Misiano argued a case before the Federal Court of Appeals for the Second Circuit – Green Tree Servicing vs. Christodoulakis. His clients, Christodoulakis, were sued in Federal District court by Green Tree for unjust enrichment of a sum of $295,000.

“The case was a true David versus Goliath case and was hotly contested,” said Misiano.

Misiano raised the defenses of Standing (Green Tree was not the real party in interest) and the measure of damages – if unjust enrichment were to be declared occurred – was a much lower figure.  His motions were denied and basically lost at every battle in the lower court.  However, Misiano appealed the decision for a money judgment of $295,000 plus interest.

The three judge Appellate court, after reading Misiano’s extensive brief and hearing argument, decided in his favor in that the measure of damages was indeed incorrectly assessed and lowered the judgment to $106,500 – saving the client quite a bit of money.

“This was an exciting experience for me,” said Misiano. “I traveled to downtown Manhattan where the court sits and was grilled with questions concerning the case by the panel of judges.  It brought me back to my law school days when every day a professor challenged your logic.  While I have argued cases before NYS Appellate division, this was my first Federal Appeal and I’m glad I persisted.”

Misiano Law is Located in the Heart of Long Island

From our centrally located office in Happaugue, NY, Misiano Law welcomes you at our convenient location off the Long Island Expressway.

James F. Misiano has a long history of successful outcomes for his clients across his numerous areas of practice. He began serving Long Islanders and the greater Metropolitan area in 1980 and has built a stellar reputation of winning cases. Misiano Law clients are always confident that they are in the best of hands.

Contact us today at (631)-396-0255 to schedule your free consultation.