New York City is home to a plethora of fantastic and popular nightclubs.
LAVO, 1OAK, Webster Hall, Cielo, the Sullivan Room, subMercer, Pacha,
RdV, Bossa Nova Civic Club, Tenjune, the Village Underground, Bembe, Club
Macanudo, the Woods, bOb Bar, and the 40/40 Club are just a few of the
clubs that New Yorkers and people from around the world visit to dance
and have a great time in the city. Undercover narcotics officers have
prowled nightclubs and attempted to buy drugs from dealers operating inside
the clubs for a long time. However, as nightclubs in New York come under
more pressure from law enforcement authorities to ensure that their establishments
are drug-free, more and more people are being arrested as a result of
searches by private security guards and bouncers patrolling the nightclubs.
For example, one popular dance club in Manhattan, Webster Hall, has instituted
a policy of routinely frisking people seeking admittance at the front
door to ensure that they are not attempting to bring any drugs inside.
We are aware of one recent incident in which a female bouncer at the entrance
to Webster Hall reached into the bra of a woman trying to enter the club,
and in so doing, discovered MDMA (ecstasy) inside her bra. This woman
was then referred to the police at the 9th Precinct, who arrested her
and gave her a Desk Appearance Ticket for a violation of Penal Law Section
220.03 (a Class A misdemeanor punishable by up to one year in prison).
Notably, the security guards at private clubs are not normally required
to adhere to the Fourth Amendment rules about unlawful searches and seizures.
Obviously, the Fourth Amendment instructs that police officers are not
allowed to frisk someone without sufficient cause to do so, and any evidence
obtained by an unlawful police seizure is inadmissible in court per the
doctrine known as "fruit of the poisonous tree". Thus, because
private security guards at clubs are not generally constrained by the
Fourth Amendment, a prosecutor can admit into evidence drugs that were
obtained from a search by a private security guard that would have been
inadmissible if performed by a police officer.
However, these club-search cases are very defensible in a number of ways.
First, there can be serious chain of custody issues in these cases; a
skilled defense attorney may be able to demonstrate that the private security
guards failed to properly secure or keep track of the drugs once seized,
or that they were intermingled with drugs seized from some other patron.
In those cases, the prosecution may be unable to reliably attribute certain
drugs to certain individuals, as required at a trial. Moreover, these
private security guards often have not received nearly the same degree
of training as police officers, and they also may not be as accustomed
to being as diligent with respect to their paperwork. Accordingly, the
credibility and reliability of the testimony of these bouncers and security
guards may be very contestable at trial.
Though the majority of these types of arrests are for misdemeanors (usually
charged as a violation of Penal Law Section 220.03), some individuals
have even been "arrested" by club security guards and referred
to the police for drug-related felonies such as violations of Penal Law
220.39 (Criminal Sale of a Controlled Substance in the Third Degree, often
involving cocaine) or Penal Law 220.16 (Criminal Possession of a Controlled
Substance in the Third Degree) or Penal Law 220.06 (Criminal Possession
of a Controlled Substance in the Fifth Degree, for
ecstasy/MDMA/molly and other drugs) or Penal Law 220.31 (Criminal Sale of a Controlled Substance
in the Fifth Degree). Generally, drug-related crimes become felonies if
the quantity of the drugs possessed is significant, if there is some evidence
of an intent to sell on the part of the possessor, or if there was an
actual sale. Notably, the definition of a "sale" in New York
law includes the simple act of giving drugs to another person, whether
there is money exchanged or not.
See Penal Law Section 220.00(1). Thus, simply
sharing drugs with a friend at a club or passing a single pill of ecstasy
to a stranger could get you arrested and convicted of a felony.
If you or a loved one have been arrested for a drug-related crime at a
New York City nightclub, you should strongly consider retaining an experienced
criminal defense attorney immediately. The attorneys at Galluzzo &
Arnone have significant experience defending cases such as these and have
regularly delivered excellent results.
Contact them today to set up a consultation.
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