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Court Upholds Decision That Officers Had Probable Cause for Warrantless Search
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Summary: Two officers that conducted a search on four men in a van believed to be involved in gun shots were found to have had probable cause by two courts.

A man’s weapons conviction was upheld by a vote of 3-1 on Wednesday by the Appellate Division of the Second Department. His motion to suppress a warrantless search that discovered a firearm was also denied. The officer that conducted the search believed she had heard a gunshot coming from the area of the defendant although she did not see him with a gun.


The original ruling in 2010 came from acting Queens County Justice Fernando Camacho, who is now the acting justice of Suffolk County. Camacho found the defendant Bryan Kelly guilty of second-degree criminal possession of a weapon, unlawful possession of marijuana, and third-degree criminal possession of a weapon. He was sentenced to 3.5 years in prison and 2.5 of supervised release. Kelly was released two years ago.

Officer Jessica Alvarado was on patrol on August 2, 2008 with her partner in an unmarked car at 1:45 am. She observed two groups of people near an intersection. One was a group of four while the other group was large and more vocal, throwing bottles and yelling.

Alvarado focused on the smaller group huddled around a van. She feared they were trying to break into the van and soon after heard a single gunshot. She saw sparks and smoke but did not see anyone holding a firearm. Soon after, another five to six shots occurred but she was unsure which group the noise was coming from.

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The small group got into the van and drove off. Alvarado followed the van into a housing development. The two officers approached the van with their guns drawn, removing the four men from the van and conducting a search. A revolver was found in the middle console, resulting in the arrest of the four men.

While Alvarado reported that the gun had not been fired, when Kelly’s attorney asked during the cross-examination, the prosecutor objected. Camacho denied Kelly’s motion to suppress the firearm, stating that the officers had probable cause.

Kelly’s defense questioned the credibility of the Alvarado’s story stating that her sequence of events was not possible but the courts found that she was justified in her concerns that the men were trying to steal the van. This gave them the probable cause needed to conduct the search.




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