Post details: NY1: Given that a drug test can occur, the person from whom sample is taken cannot complain of the test

02/05/10

Permalink 06:16:01 am, by fourth, 373 words, 131 views   English (US)
Categories: General

NY1: Given that a drug test can occur, the person from whom sample is taken cannot complain of the test

NYPD officer who failed a drug test could not complain that this specific test violated his Fourth Amendment rights just because it was not approved by the police union collective bargaining agreement. Matter of Chiofalo v. Kelly, 2010 NY Slip Op 785, 70 A.D.3d 423, 893 N.Y.S.2d 552 (1st Dept. 2010).

We reject petitioner's claim that using the radioimmunoassay method of hair testing violated his Fourth Amendment right against unreasonable search and seizure because the use of that method was not authorized by the Police Department's collective bargaining agreement with petitioner's union. The Court of Appeals has held that the Commissioner was empowered to choose the method of drug testing, and that choice was not subject to collective bargaining (see Matter of City of New York v Patrolmen's Benevolent Assn. of City of N.Y., Inc., NY3d , 2009 NY Slip Op 09314 [2009]).

[Note: If a police officer can be drug tested under the Fourth Amendment, which is a given, how does any particular test after the sample is taken violate the Fourth Amendment?]

Trial court erred in granting defendant’s motion to suppress. The totality of circumstances showed more than mere coincidence and thus reasonable suspicion for defendant’s stop, and the smell of marijuana thereafter justified more action by the police. State v. Peery, 2010 Mo. App. LEXIS 107 (February 2, 2010)*:

But, this case does not present any one of those "facts" as the only "fact." This case presents all of those "facts" itemized by the motion court in its suppression order. Any one of these facts may properly be deemed an innocent coincidence, but when all of these "coincidences" are added together, it is erroneous to conclude that this string of facts is anything but a pattern of conduct suggestive of involvement in criminal activity. It is erroneous to conclude that this cumulative evidence of Peery's conduct fails to establish a particularized and objective basis for suspecting illegal activity. When reviewing the whole picture, it is erroneous to conclude that the officers in this case failed to point to articulable facts that criminal activity may be afoot. It is erroneous to conclude that the totality of the circumstances of the facts of this case fail to demonstrate a minimal level of objective justification for a Terry stop.

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"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

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"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
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