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A judge dismissed photographs of a woman's butt in the case of alleged subway groper Darnell McGee. Judge Anthony Ferrara said the photographs and video footage found on McGee's cellphone of a victim he allegedly groped was essentially "illegal search without a warrant."
In July of last year, two undercover cops had seen McGee "pointing his phone at the rear ends of other female straphangers at the station" as well as grabbing at least one's butt. They first saw him at Union Square, followed him on a train to Grand Central, and then back on a train to Union Square where he was grabbing a woman's rear. The woman complained to the cops who arrested McGee.
When one of the officers took inventory of McGee's personal items, he looked at McGee's cell phone and found the photos and video. It turns out that it was the officer's first experience with cell phone evidence - that's some lesson. The prosecutors tried to argue that though it was a warrantless search, cell phone evidence would have been found later. McGee's Legal Aid attorney said, "You can't have the police just going into your things without a legal basis."
Judge Ferrara, however, did not agree with the defense's claim that the whole case should be thrown out, given that the two officers witnessed the groping. McGee is charged with third-degree sexual assault and forcible touching.
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"You can't have the police just going into your things without a legal basis."
I thought they saw him point the camera phone at her butt. How much more do you need for probably cause?
god i hate that judge what a jackass. the cops saw him put the phone away from doing something illegal. and lady complain about him grabbing ass. what else do they need. him rapping someone!!!
How is taking a photo in a public space illegal? I mean, not to defend the guy but if I'm taking photos and happen to take one of someone's chest or butt am I a criminal?
if the cops saw it, that is the exact definition of probable cause... will this case now the stepping stone for all pot smokers?
"well, i know they saw me smoking dope, but searching me for drugs was illegal!"
i can't believe people r actually arguing in favor of having the nypd b able 2 just go through our personal belongings without a search warrant. unbelievable. read comment #3 to understand y it was an illegal search.
its illegal if it's pointed up someone's skirt.
Karma's a bitch, ain't it?
You can't go rummaging through peoples stuff, plain and simple. God Bless You Judge Ferrara.
This is More NYPD intimadation from the RNC through C. Mass.
The photo evidence doesn't even seem that critical to the case, especially if the cops witnessed him grabbing the woman's butt, and the woman can positively ID him.
Alls well that ends well here. They perv will probably pay given the substantial evidence against him sans cell phone pictures, and the NYPD gets a little slap on the wrist, and hopefully they won't make the same mistake again when pictures like that might be critical evidence.
hey, how's that cop shot doing?
clinging 2 life.
He dismissed pictures of a woman's ass?
The judge is totally gay
#5 Zodak and #7 obviously have zero concept of the law. You don't always need a warrant to conduct a search. It's called probable cause. There are centuries of case law on what is allowed and what isn't.
You guys give groups like the ACLU and others that acutally understand the law a bad name. You're always screaming about rights that never existed.
Do you put, commas, every few words for a particular, reason?: "When one of the officers, took inventory of McGee's personal items, he looked at McGee's cell phone and found the photos and video"
Oh now, really, Gothamist!
As many have pointed out, the cops did indeed have probable cause to conduct the search, and while the photos might not have been a crime in and of themselves, they were evidence of the defendant's criminal behavior (that it was a pattern, not just a one time grope). Also, as the prosecutor argued, if what is found during an illegal search would have later been found legally, it is typically admissable as evidence.
no can lookee into cellie.
cellie innocent victim, no can lookee.
cellie is just a telly.
search my doo doo find korn kernels.
still hard and yelly.
so why jump the gun? you already have the deck stacked in your favor. is it that hard to perform a probable search the LEGAL way?
I guess not.
score one for the good guy, thank you Judge.
Graying guests is a bit annoying and ineffective. The "guest" handle is clear enough. Besides, the "member" hadles are no less annonymous after all. "Accountability" in this case is just a choice for folks to build a clear identity, which should be a choice, not a reqïrement. Most readers of Gothamist got past 8th grade and can tell at a glance if we want to fully read a post or not. How can the the cutting edge of NYC blogs be so internet retro?
so why jump the gun? you already have the deck stacked in your favor. is it that hard to perform a probable search the LEGAL way?
Do you not understand that when the police have probable cause they can LEGALLY search you or your home without a warrant?
Then why did the judge throw out that evidence? so, you know more than the Judge.
why are we talking about searches in the home? was this a search of his home? stop spinning the story.
score one for the good guys, the founding fathers.
#5 Zodak:
you call yourself an american?
Police do not need a search warrant to search a person or vehicle they stop on the road or in a non-residential area if they have probable cause to believe it contains contraband or evidence of a crime. In that case, police may search the passenger compartment and any open containers inside the vehicle.
Police do not need a search warrant, or even probable cause, to perform a limited search of a suspect's outer clothing for weapons, if police have a reasonable suspicion to justify the intrusion - a 'stop and frisk.'
Under the Fourth Amendment searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. would require a second search warrant.
Exceptions:
In some cases a search warrant is not required, such as where consent is given by a person in control of the thing to be searched. Another exception is when evidence is in "plain view" - if the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately apparent that the evidence is contraband, the officer is within his right to seize the object in question.
When police arrest an individual, they are also permitted to conduct a full search of the suspect's person, any area within that person's immediate reach, and any vehicle which they recently occupied, for weapons or other contraband. If the subject is arrested in a home, police may search the room in which they were arrested, and perform a 'protective sweep' of the premises where there is reasonable fear that other individuals may be hiding. Searches are also allowed in emergency situations where the public is in danger.
also, grabbing a woman's ass is assault, a felony:
*...as well as grabbing at least one's butt. They first saw him at Union Square, followed him on a train to Grand Central, and then back on a train to Union Square where he was grabbing a woman's rear.*
*Do you not understand that when the police have probable cause they can LEGALLY search you or your home without a warrant?*
Um no they can't. If the subject is arrested in a home, police may search 'the room' in which they were arrested, and perform a 'protective sweep' of the premises where there is reasonable fear that other individuals may be hiding. Searches are also allowed in emergency situations where the public is in danger.
i love how people here are more knowledgeable about the law than a judge! u can talk about "probable cause" all you want but just because you watch Law & Order doesn't mean you know what you're talking about. don't take my word for it (i'm not a lawyer) take the word of Criminal Court Judge Anthony Ferrara. i think he knows more about the law than all of u put together do. oh & yes, i do call myself an american. props to #'s 7, 15 & 18.
it's not law & order i get my info from, it's documents called the constitution and bill of rights... if you don't have copies, get some.
spoken like someone who gets their understanding of the legal system from television. do state & local laws not exist in your world?
get a clue: even the prosecution admitted it was an unlawful search.
state and or city law doers not apply here. I'm not stating i'm more knowledgeable than a judge. i am however, basing my opinion off of the US Constitution—remember that document?...
regardless of the prosecution, the judge etc—arguing the laws of the constitution which by the way, local and state laws are based off of, the search, from what i have read in the news and discussed with friends who are lawyers and judges they disagree with Ferrara.
--
this man sexually assaulted one or more women (while being watched by two, i presume) undercover cops), was arrested and searched. nothing unlawful there.
the prosecution conceded in regards to the searching for digital evidence (opening the phone and looking at the photos), but not the hard evidence: "but argued that the independent-source and inevitable-discovery rules applied."
to clarify: I was initially arguing that the search itself was/is not unlawful, not the actual scrolling thru the hard drive looking for illegal, self made porn.
The officers didn't pick this man at random and then search him. The perp was assaulting women, arrested and then lawfully searched. I surely hope you're not a believer of "not searching" arrestees. What a far dangerous world we would live in if searches post arrest were unlawful.
read up on the 4th amendment: http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#3
I actually agree with the judges decision . Just because the guy had pic's of a bunch of women's fat asses, Doesn't mean they could be used against him in this case . If the women in those pictures were to file suit against him then yes those pic's could be used against him . The judge is right on this one . The judge employed what would be defined as "Levels" of entanglement here . Basically what this means is the woman that he was charged with violating and any evidence that can be proven to be associated with "THAT" particular case is admissible .Sorry folks, Their is still something called "Privacy" in this country . Posted by; "Still Not Amused"
The Judge was correct.
And they gray comments suck.