Crime

5 Holiday Tips On How Not To Get Arrested In NYC

A criminal-defense attorney's holiday guide on how not to get busted while hanging out in the Big Apple.

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Many people come to New York City for the holidays.  Some have never been, and some used to live here and are coming home to visit.  But whether you’ve lived in NYC or are tourists, here are some ideas to keep you out of trouble. What follows is my holiday guide on how not to get busted while hanging out in the Big Apple.

Tip 1: Don’t smoke a joint in public.

Although everyone seems to be doing it, smoking marijuana in public is not legal.  Personal possession has been decriminalized, but that doesn’t mean you can smoke it in public.  Never smoke a joint on the streets of NYC.  You risk being arrested.

Around this time of year — office holiday parties, etc. — police wait outside of bars to catch people smoking blunts. Once you light that joint, even if it’s midway between passing it to a friend, cops (lying in wait) could seize the joint and arrest you both. They’ll then have a right to search you and recover whatever you might be carrying.

Tip 2:  If you get stopped by police and asked what’s in your bag, you don’t have to tell them or hand over the bag.  Honesty is not the best policy.  Silence is.

This happens frequently.  Police stop you then ask if they can look in your bag.  You do not have to comply. You’ve got a choice: Hand it over or don’t.  If you’re not carrying anything illegal (some things might surprise you — see below), you might choose to hand it over simply to avoid the hassle of being brought to the precinct.  The rule of thumb is — give police trouble, and they’ll give you trouble back.  Instead of handing you a summons to appear in court at a later date, if you don’t agree to open your bag, they’ll likely haul you to the precinct where you’ll sit for hours or potentially even spend the night before being released.

Do a cost-benefit analysis.  Is there anything in the bag that could get you in trouble?  If not, are you willing to piss off the cops (just on the principle of the thing) and be brought to the precinct when you’ve got nothing to hide?

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If you’ve got something to hide like a bag of coke or forged credit cards — do not hand over your bag.  Make them work for it.  They’d have to have probable cause to arrest you in the first place, and only if they arrest you can they then check your bag in the precinct either with a warrant or as an inventory search.

The same analysis applies to car stops.  You do not have to consent to a search of your car, glove compartment, or trunk.  If you refuse, they’ll need a reasonable basis to believe you are hiding something illegal inside in order to search.  Let’s say your car smells of pot or they see a “pot leaf” in the cup holder (a real claim by a cop in one of my cases), then they have the authority to search without a warrant.  But they’d have to make that case in court and convince a judge they weren’t making up the reason for the search.  Even though most judges believe cops a priori, there’s no need for you to just roll over and let them search.

Tip 3:  What’s legal in your state might not be legal in the Big Apple.

There are a number of things that you might be able to carry legally in your state, but which require special caution in NYC.  Top of the list:

– A legally purchased gun:  Possessing a gun in New York City, whether you bought it legally or not, can be a huge offense if you don’t have a permit specific to the city. (Note, a permit in your state isn’t enough.)  This applies even if the gun is in its original packaging and has never been used.  If you’re arrested and indicted, it’s an automatic 3 1/2-year minimum sentence, even if you’re as clean as a whistle and are just passing through NYC on your way to New Jersey.  That’s how seriously the D.A.’s office takes gun possession.

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I had a case recently where my client bought a gun legally, had a permit for it, had it packaged in its case, and ammo (never opened) packaged in another locked box — all pursuant to TSA guidelines.  He had the gun in his luggage in the trunk of his car and got stopped at the Lincoln Tunnel for a broken headlight. He was arrested and charged with possessing a loaded firearm.  (Access to the ammo is all you need to make the gun “loaded,” even if the gun chamber is empty.)

TSA guidelines are NOT the same as state or city laws. (Check state websites for gun rules in every state you’re driving through as this changes from state to state and even county to county).  In NYC, you not only need a general “carry permit,” but a permit issued by the City permitting you to carry the weapon.

My suggestion, if you’re visiting for the holidays or just driving through, don’t carry a gun. Manhattan is one of the safest cities in the U.S. and while nobody thinks they’ll be stopped, cops are justifiably vigilant.  A broken tail light, turning without signaling, having tinted windows, driving while texting — all this can get you stopped and questioned.

And remember, if you’re stopped and police ask whether you have anything dangerous in the car, just say, no.   Only if you admit to having a gun do they have the right to search, find it, then arrest you.  (While, I don’t generally recommend lying to police, remember this — THEY ARE PERMITTED TO LIE TO YOU.  You’re just evening the playing field.)

Other items that can trip you up:

– Tazers:  Again, even if bought legally and carried to NYC for protection (let’s say you’re coming with your teenage daughter to see a Broadway show), they are illegal.  It doesn’t matter if they’re still in the box and unassembled.  I had one client fly into LaGuardia with a boxed Tazer carried for protection.  She was stopped on her way out of town and arrested.  The woman had to come back to NYC three times before the case was ultimately dismissed.

– Knives: This is tricky.  The size of the blade and how it opens could make carrying a knife criminal.  If it’s a switchblade (opens by centrifugal force), it’s criminal.  It doesn’t matter if you’re not using it, just carry it for work, or bought it legally.  It’s still a crime.

Tip 4:  Be careful about drunk or impaired driving, including pot.

Even when you think you’re not drunk or impaired, you might be.  ‘Tis the season for police to wait outside of clubs and follow patrons getting in their cars to make sure they’re driving straight.  Any infraction — broken taillight, going through a yellow, failure to signal — can get you stopped. Once they remove you from your car (try not to stumble out), they’ll bring over a portable intoxilyzer machine and ask you to blow. The big question is, do you?

The answer (and all of its ramifications) is worthy of its own column, but the simple answer is DON’T BLOW.   If your alcohol level is .08 or above, there’s a presumption you’re intoxicated.  Blowing is similar to making a confession.  Even if it means you’ll have to go to what’s called a “refusal hearing” and potentially have your license suspended, think long and hard about blowing. A high number will seriously jeopardize your ability to fight your case.  Intoxilyzers can be wrong or susceptible to high-number blows based on other factors like the medication you take, breath mints, and even a burp.  Tell police you want a lawyer, ASAP.  Make NO statements. Don’t apologize and don’t say anything about how much you had to drink — even if it was only one beer.  If you look intoxicated, they’re going to bust you no matter what you say.

Tip 5: Give your cell phone to a friend.

In spite of the above tips, if you’re unlucky enough to be stopped and arrested, you must hand off your cell phone (and any other valuable items) to a friend before police cuff you.  This is for three reasons:

  1. Once police seize your cell phone, they will likely seek to search its contents (if the charge merits it). This can lead them to finding other incriminating information against you.
  2. You’ll lose access to it and all the contacts you’ll want to alert to the fact you’ve been arrested.
  3. It’s a pain in the neck to get back when your case is over.

The city is a great place to visit over the holidays but a crappy place to be arrested.  So recapping my top five tips:

  1. Don’t smoke marijuana in public.
  2. Don’t carry a gun, even one that’s legal outside New York City.
  3. Be careful about carrying any knife, even for work.
  4. If stopped after drinking, don’t blow.
  5. Hand off your cell phone.

The good news is that if you get busted in NYC there are a ton of great lawyers to choose from.  (Call 311 and ask for the Legal Referral Service for names.) Once arrested, you’ll be brought before a judge within 24 hours (at least theoretically) and if you can’t afford an attorney — the public defenders here are among the best in the country.

Happy holidays!

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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