{"id":3811,"date":"2010-05-18T21:54:37","date_gmt":"2010-02-05T06:16:01","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-02-05T06:16:01","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3811","title":{"rendered":"NY1: Given that a drug test can occur, the person from whom sample is taken cannot complain of the test"},"content":{"rendered":"

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<\/a>, 2010 NY Slip Op 785, 70 A.D.3d 423, 893 N.Y.S.2d 552 (1st Dept. 2010).<\/p>\n

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]). <\/p><\/blockquote>\n

[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?]<\/p>\n

Trial court erred in granting defendant\u2019s motion to suppress. The totality of circumstances showed more than mere coincidence and thus reasonable suspicion for defendant\u2019s stop, and the smell of marijuana thereafter justified more action by the police. State v. Peery<\/a>, 2010 Mo. App. LEXIS 107 (February 2, 2010)*:<\/p>\n

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.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3811","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3811"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3811\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3811"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3811"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}