SEARCH WARRANT REQUIREMENTS

In New York, a search warrant allows law enforcement officers to search a specific place or area, usually one’s home or place of business, at a specific time and seize specific items. For example, say that police investigators suspect that you are involved in drug trafficking or selling drugs out of your home. The investigators may ask a judge for a search warrant authorizing them to search your home at 7pm and seize any drugs they find there.

Most commonly, search warrants obtained by police officers in New York State are sought for the discovery of guns or drugs. Before a warrant can be issued, the police must prepare a written search warrant affidavit demonstrating probable cause. The information relied upon in the affidavit may be based on the observation of contraband in a specific place by either a police officer or police informant. However, if the police informant is anonymous, then the information provided must be corroborated. Typically, the police will not apply for a warrant until they can affirm to a judge that an undercover police officer or informant has seen contraband in a specific place, and has done so recently. Thus, it is impermissible for the police to simply base a search warrant affidavit on hearsay or rumors of illegal conduct.

Furthermore, the particularity requirement requires that the police affidavit specify the particular type of contraband items to be discovered. Therefore, the corresponding warrant cannot be used as a license to search everywhere in the premises if the specified items could not logically be found in certain areas. For example, if the warrant was for the discovery of a stolen vehicle, then the police could search your garage but not rooms inside your house. However, any contraband found during a search of any kind can be confiscated even if the search is later determined to be unconstitutional.

One last requirement, unless the police have obtained a “No-Knock” warrant, is that if you ask the police to see the warrant, they must show it to you so you can inspect it prior to or contemporaneously with the search.

The Mouganis Law Firm is a New York criminal defense firm representing clients in criminal defense and civil rights matters in the Greater Rochester Area of New York. Should you have any questions and require the services of an experienced criminal defense attorney, please contact us at (585) 301-2496. Rochester, New York Criminal Defense Attorney.

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WHAT TO DO IF ASKED TO TAKE A BREATHALYZER IN NEW YORK

One of the most common questions of criminal defense attorneys is whether or not a person is better off agreeing to take a breath test or refusing to take a breath test when pulled over by the police on suspicion of DWI (driving while intoxicated) in New York.

Negative Consequences of a Breathalyzer refusal:

Refusing to take a breath test has one important implication in New York that is completely independent of your driving while intoxicated criminal case: you will lose your license for a year without the ability to obtain a conditional license. Even if you are eventually found not guilty of your DWI case, your license will still be suspended for your refusal. Additionally, the District Attorney’s Offices usually will not make a plea offer to someone who refuses the test. On the other hand, if someone is close to the legal limit, the State will usually make a plea offer to a non-criminal offense of DWAI. Therefore, a refusal will limit your ability to get such an offer.

Benefits of a Breathalyzer Refusal:

Although a Breathalyzer refusal has some serious civil penalties, agreeing to take the test, from a purely criminal defense oriented point of view, could certainly give the Government some potentially damaging evidence against you. Be advised however, that you are being observed and sometimes, videotaped by the police while you are in their presence. If you appear sober, there is less evidence against you and you have a stronger defense. Therefore, if you have a lack of scientific evidence coupled with a “good” video or observation, you should have a viable chance of acquittal. On the other hand, if you were observed or video-taped swerving, stumbling, vomiting, or slurring your speech, then the lack of breath test result will be less important.

ANSWER (REFUSAL OR BLOW):

If you are close to the legal limit or if obtaining a conditional license is imperative to your situation, and there are not any overriding considerations like a seriously injured person or being charged with a felony DWI, then my position would be TAKE THE TEST.
If there are overriding considerations, like being involved in an accident with a seriously injured person or you are being charged with felony DWI, or if you are well over the limit, then my position would be DO NOT TAKE THE TEST.

The Mouganis Law Firm is a New York criminal defense firm representing clients in Driving While Intoxicated and drunk driving related crimes in the Greater Rochester Area of New York. Should you have any questions and require the services of an experienced criminal defense attorney please contact us at (585) 301-2496. Rochester, New York Criminal Defense Attorney.

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WHAT TO DO IF STOPPED BY THE POLICE IN NEW YORK

IN YOUR HOME

1. If the police come to your home and ask to enter, you have the right to refuse their entry unless they have a warrant.
2. However, in some limited situations (like when a person is screaming for help inside, or when the police are in hot pursuit) officers are allowed to enter and search your home without a warrant or your consent.
3. Do not invite the police inside, nor should you step outside. If the police believe you have committed a crime, the police usually need an arrest warrant to go into your home to arrest you.
4. If you are arrested outside your home, do not accept any offers to go inside with them to get dressed, change, get a jacket, call your wife, or any other reason. Your acceptance of their offer may be considered consent to search your home.

IF YOU ARE STOPPED FOR QUESTIONING
1. Keep your hands where police can see them – don’t put them in your pockets. (Don’t make the police nervous by wondering if you have a weapon) Don’t make any sudden movements. Never touch a police officer.
2. Ask if you are under arrest. You have the right to be told why you are being arrested and the nature of the charges against you.
3. Try to resist the temptation to mouth off at the police, even if the stop is unwarranted. That could lead to your arrest and police have a lot of discretion in what charges can be brought.
4. If police have reasonable suspicion to believe you have a weapon, they may perform a frisk and pat down your clothing. Don’t physically resist, but make it clear that you don’t consent to any further search.

IF YOU’RE STOPPED IN YOUR CAR
1. Keep your hands on the steering wheel while the officer approaches your vehicle. Upon request, show them your driver’s license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself later, you should make it clear that you do not consent to a search.
2. If a police officer asks you to exit your car, roll your widow up, exit the car and immediately close the car door. Lock the car door and place your keys in your pocket. If passengers are asked to exit, tell them the same thing.
3. If the police are searching your car, don’t look at the places you wish they wouldn’t search. Don’t react to the search at all, and especially not to questions like “Who does this belong to?”
4. If you’re given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.

IF YOU’RE ARRESTED OR TAKEN TO A POLICE STATION
1. Don’t say anything without a lawyer. If you’re arrested or taken into custody, ask to see your lawyer immediately. The police have an obligation to contact or allow you to contact your attorney. Remember, you have the right to remain silent and to talk to your lawyer before you talk to the police.
2. You may also ask to contact a family member, or friend. However, if you are permitted to make a phone call, anything you say at the precinct may be recorded or listened to. Be very careful, and never talk about the facts of your case over the telephone to a non-attorney

The Mouganis Law Firm is a New York criminal defense firm representing clients in criminal defense and civil rights matters in the Greater Rochester Area of New York. Should you have any questions and require the services of an experienced criminal defense attorney, please contact us at (585) 301-2496. Rochester, New York Criminal Defense Attorney.

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WHAT TO DO IF YOU ARE INVOLVED IN A CAR ACCIDENT IN NEW YORK

DON’T LEAVE THE SCENE
New York law requires that the driver of a vehicle involved in an accident resulting in personal injury, property damage or death stop his vehicle at the scene of the accident. Furthermore, you are required to give your name, address and show your driver’s license and insurance information card to the person who is injured or whose property is damaged, or to a police officer.

CALL 911
If you or anyone else is injured, clearly communicate such injury and your location as precisely as possible so aid can reach you without unnecessary delay. It is also very important to document the fact that you were injured in the accident as it can affect any claim you may later bring seeking compensation for your injuries When police arrive, give the officers the basic facts of the accident. Often times police officers will not make a report for minor accidents. However, insist that the officer make a report for your motor vehicle accident. The official report may help you later either by supporting your claim against someone else or protecting you against a claim made by another motorist.

DOCUMENT THE SCENE
Using your camera phone or disposable camera, take pictures of the accident scene and the vehicles before moving them. It is important to take pictures of the damages to the vehicles and the scene of the accident, including any skid marks that might be on the road. Make a note of the details of the accident, including date and time, road conditions, weather conditions and speed of all other cars involved. Drawing a sketch or diagram of the collision will be a helpful memory aid later on. It may be months, or even years, before the insurance companies fully resolve any claims.

STAY SAFE AND PROPERLY WARN OTHER VEHICLES
The scene of an accident is a dangerous place. Keep well back from the road and avoid standing between two cars. Do your best to prevent further accidents. You may be liable for damages suffered by approaching motorists unless they are properly warned. Activate the flashers on your vehicle and if it’s nighttime, put out flares facing oncoming traffic. If there are no obvious personal injuries, and the car can be driven normally, move the vehicles off the road.

EXCHANGE INFORMATION WITH OTHER DRIVERS
Always keep pen & paper in your vehicle so you can record the names and address of all other drivers involved in the accident. If possible, also note the names and addresses of other passengers. Also note the ownership, license number, year and make of all the cars involved in the accident. Obtain the names of the insurance companies and the policy numbers covering the other autos in the accident. But do not discuss the issue of fault with the other drivers.

IDENTIFY WITNESSES
Witnesses will be a tremendous help to you in any court action arising from the accident if there is a dispute about the cause of the accident. Get the names, addresses, and phone numbers of as many witnesses as possible. If witnesses refuse to identify themselves, at least note the license numbers of their vehicles.

COOPERATE WITH THE INVESTIGATING POLICE OFFICER
Cooperate with the investigating officer by giving him the facts of the accident. However, do not admit fault or sign any statements at the scene as to how or why the accident occurred. You should consult an attorney before giving a statement of opinion. It may be determined that you were in fact not at fault and the other driver was to blame. Get the name and badge number of any offer that responds to the scene and get the name and contact information of the police officer who will write the report. Do not leave the scene of the accident until the investigating officer allows you to leave. Once an officer completes his or her investigation of the accident at the scene, there will be an accident report number that you will use to obtain a copy of your report in one to two weeks.

CONTACT YOUR INSURANCE COMPANY AND REPORT THE ACCIDENT TO THE COMMISSIONER OF MOTOR VEHICLES
New York law requires that the operator of a vehicle involved in an accident in New York State file a written report with the Commissioner of Motor Vehicles within 10 days of the accident. However, you should call your insurance company representative immediately after the accident and have them prepare the necessary forms (MV-104) and ask about your rights and time limitations for filing a claim. Furthermore, if you fail to notify your insurance company of the accident in writing within a reasonable time, it could be grounds for the company to deny any obligation to protect your interests in the event a claim is made against you.

SEE A DOCTOR
If you are injured, seek medical attention immediately after the accident. Many serious injuries may seem trivial at first. Under New York State’s “No Fault” law, medical expenses, lost wages, and other expenses, are covered regardless of fault up to $50,000.00, so don’t worry about the medical expenses for the emergency room treatment which may follow from an accident.

SPEAK WITH AN ATTORNEY
Contact an attorney as soon as possible. The Law Office of Emanuel N. Mouganis will provide you with a free consultation either in-person or over the phone. We will even come to your home or hospital bed if necessary. We will then evaluate your injuries and determine whether or not you have a case or cause of action to bring suit against the other parties involved.

The Mouganis Law Firm is a New York personal injury firm representing clients in Car/Motor Vehicle Accidents in the Greater Rochester Area of New York. Should you have any questions or require the services of an experienced personal injury attorney please contact us at (585) 301-2496. Rochester, New York Auto Accident Attorney.

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YOUR RIGHTS, IF YOU ARE CONTACTED, STOPPED OR ARRESTED BY THE POLICE IN NEW YORK

1. I HAVE THE RIGHT TO REMAIN SILENT AND HEREBY ADVISE YOU TO STOP ALL QUESTIONING UNTIL THE ADVICE OF MY ATTORNEY. MY NAME IS ___________________. MY ADDRESS IS _____________ _________. MY DATE OF BIRTH IS _______. MY ATTORNEY’S NAME IS EMANUEL N. MOUGANIS AND HIS PHONE NUMBER IS 585-301-2496. I WISH TO CALL HIM NOW.

In New York, you have the right, if you are stopped, to refuse to answer any questions for any reason or no reason. You can invoke your right to silence by saying, “I refuse to answer any questions” or “I want to speak to an attorney” or “I wish to remain silent.” If you do not clearly invoke your right to remain silent with such a statement, you may subject yourself to continued questioning by police. Police can’t lawfully require that you identify yourself or produce identification if they don’t reasonably suspect you are involved in a crime but your refusal could lead to your arrest even if unjustified. If you are stopped while driving a vehicle, you must show your license, registration and proof of insurance.

2. I DO NOT GIVE YOU PERMISSION TO SEARCH MY PERSON, VEHICLE, HOME, OR ANY OTHER PROPERTY THAT I HAVE AN EXPECTATION OF PRIVACY IN AND ONLY IF YOU HAVE A WARRANT SIGNED BY A JUDGE I WILL ALLOW A SEARCH.

You can refuse to give your consent for an officer to search your person, vehicle or home. Your refusal will force the police officer to legally justify any search made without your consent. Be aware, however, that New York law does permit some limited searches (such as patdowns) in “stop” situations in order to search for weapons.

3. I WISH TO CALL MY ATTORNEY BEFORE I DECIDE IF I WILL TAKE ANY SCIENTIFIC TEST, INCLUDING BREATH, BLOOD, OR OTHER TEST.

In New York, a motorist does have the right to consult with an attorney prior to submitting to a chemical test. This right, however, is only a qualified right, as the request cannot unduly delay the timely administration of the test. Although the failure of the police to permit such consultation to take place can result in suppression of the test, a motorist may not condition whether or not he or she chooses to take a test upon first consulting with an attorney. Therefore, the attorney must actually be available by telephone at the time the request to take the test is given or the motorist may not claim a violation of such right.

4. I UNDERSTAND THAT THE SUPREME COURT HAS GIVEN YOU THE RIGHT TO LIE TO ME AND TRICK ME INTO MAKING STATEMENTS, AND THAT IS WHY I WILL NOT ANSWER ANY QUESTIONS UNTIL YOU PROVIDE ME WITH MY ATTORNEY.

The number one mistake made by suspects during police interrogation is they do not understand that the police may lie about everything and even invent fake evidence to trick them into making an admission. For example, an officer may tell a suspect that someone told the police that they saw the suspect commit the crime and that if the suspect confesses he will receive a short sentence or probation (even though police have no say in plea bargains and sentencing). All information provided by the police is usually untrue, and anyone facing police questioning should contact a lawyer familiar with these tactics.

5. I WILL NOT GIVE UP MY CONSTITUTIONAL RIGHT TO REMAIN SILENT, NO MATTER HOW LONG YOU DETAIN ME.

If the police want to interrogate a suspect, they will usually tell the suspect that they need assistance answering a few questions. At the police station, the officers may leave the suspect alone in an interrogation room for extended periods of time, often watching his behavior through a glass wall or one-way mirror. When the police enter, and the suspect does not give the information they are looking for, the officers may use the notorious good cop/bad cop routine in which one officer tells the suspect that he is definitely being charged while another officer tries to convince the suspect that the only way to leave the precinct is to confess to a crime.

Nevertheless, under New York law, in most cases, the longest the police can detain you is 72 hours before they must bring you before a Judge for arraignment. If you contact a lawyer and decide to challenge their detention, your lawyer can argue that the police are keeping you longer than is necessary under the circumstances. If the judge agrees, then any criminal charges that resulted from your detention may be dropped or never brought at all.

The Mouganis Law Firm is a New York criminal defense firm representing clients in criminal defense and civil rights matters in the Greater Rochester Area of New York. Should you have any questions and require the services of an experienced criminal defense attorney, please contact us at (585) 301-2496. Rochester, New York Criminal Defense Attorney.

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