Sunday, July 29, 2012

New York City's Stop & Frisks (Part 1)

New York State's mid-level appeals court in Manhattan recently invalidated 2 stop and frisks of teenagers in high crime neighborhoods in the Bronx. The court--the Appellate Division, First Department--made clear that it would not tolerate the City's increasingly aggressive crime control efforts at the expense of basic civil liberties.

There is no need to repeat what I or others have commented elsewhere. (NY Times story available at The purpose here is to address what seems to be missing from all the reports and commentary. It's an aspect of those 2 court rulings that is critical to the ultimate disposition of these and similar cases, as well as to the City's stop and frisk program itself.

The 2 rulings were based on New York State case law. Not on U.S. Supreme Court precedents. But on decisional law of New York's highest court, the Court of Appeals.

The mid-level appeals court invalidated the stop and frisks in the 2 cases based on New York State's own landmark search and seizure ruling. A ruling that is much more protective against arbitrary searches and seizures than Supreme Court rulings.

That ruling? People v. DeBour. An essential element of New York State's search and seizure jurisprudence for 36 years.

Sol Wachtler
Since it was decided in 1976 by the Court of Appeals, in an opinion by then-Judge Sol Wachtler, DeBour has been applied countless times by New York appellate courts, and many more times than that at the trial level. Indeed, in 1992, the Court of Appeals left no doubt about DeBour. It unanimously and emphatically reaffirmed it in People v. Hollman, in another opinion by then-Chief Judge Wachtler.

So what is DeBour?

In short, as New York criminal lawyers know well, DeBour requires some legal justification for the police to confront someone. More specifically, for example, DeBour requires some legitimate suspicion before police may approach someone and ask incriminating questions or ask for consent to search.

By sharp contrast, Supreme Court precedents require no such thing. No justification. No legitimate suspicion. Nothing. No, nothing whatsoever is needed for the police to approach and ask incriminating questions or ask to search. According to the current Supreme Court, the federal Constitution's search and seizure protections are just not implicated by such confrontations.
[Hey, as I've said before, I didn't appoint the Justices who've been voting that way.]

Why does this matter? Why is it critical?

Well, it's not just that the New York State Court of Appeals and the Supreme Court take different views of search and seizure rights. It's more fundamental than that. The point is that state courts are perfectly free to protect rights and liberties more than the Supreme Court does. They are perfectly free to do so under the authority of their own law. In fact, when state courts do that, the Supreme Court's rulings are basically irrelevant.

That's right. Irrelevant.

In fact, the Supreme Court has no authority to review such state court decisions. No. Such decisions can't be appealed to the Supreme Court. If a state court decision based on state law does not actually violate a Supreme Court ruling--i.e., does not violate a federally protected right or disobey some other federal mandate--that state court ruling is the last word. There is simply no federal issue that the Supreme Court can review.

Let's say it again, somewhat differently, because this is not commonly understood.

A state court decision based on state law can be different than a Supreme Court ruling. It can protect rights more than the Supreme Court requires. It doesn't have to conform to Supreme Court decisions.

In this very real sense, state high courts are "supreme." Their decisions are the supreme law of their states--as long as they don't violate federal constitutional rights or violate some other federal constitutional command or prohibition. In constitutional law, we call this the "adequate and independent state ground" doctrine.

Well, the 1976 DeBour decision, as well as its 1992 reaffirmation in Hollman, provides "adequate and independent" state law protection of the right against unreasonable searches and seizures. It provides more protection than the current Supreme Court requires under the federal Constitution. It does not violate any federal constitutional right or disobey any federal constitutional command. It is the supreme law of New York.
[BTW, several other states today have similar rulings.]

Consequently, when New York State courts apply DeBour or Hollman to protect search and seizure rights, the Supreme Court's less-protective case law is irrelevant. And the Supreme Court has no authority to review those state rulings.

Now, the mid-level appeals court that invalidated the stop and frisks in the 2 recent cases applied DeBour. Not Supreme Court case law. So if New York's high court affirms those rulings--i.e., if the Court of Appeals agrees that the DeBour protections were violated--that's it. That's the final word. There's no appeal to the Supreme Court. The Supreme Court simply has no authority to intervene.

[Many of us who like actual states rights--not state freedom to violate rights--think this is one of the best features of the federalism established by the Constitution. When speaking specifically of the relationship between state and federal courts, it's typically called "judicial federalism."]

What about a concrete example of how New York's DeBour would apply and how the Supreme Court's search and seizure precedents would apply in the very same context? OK, let's look at "bus sweeps."

You know. The police board a bus (or a train, or stop a car or truck) looking for illegal drugs. They ask everyone or some individuals for identification, ask if they have any drugs on them, and ask to search them or their bags (or the car, trunk or truck, etc.).

Well, the New York Court of Appeals, applying DeBour, treats such situations very differently then does the Supreme Court.

Victoria Graffeo
In People v. McIntosh, New York's high court invalidated just such a "bus sweep." In it's unanimous 2001 decision, speaking through an opinion by Judge Victoria Graffeo, the Court of Appeals rejected the notion that police could confront individuals, ask for identification, ask pointed questions, or ask to search, unless the police had some legitimate suspicion of criminality beforehand.

In McIntosh, the police in an upstate county had a policy of boarding buses from New York City, asking riders for identification, and confronting some with pointed questions and requests to search. They did so on the ground that the City was a source of illegal drugs that were often transported on buses.

Applying DeBour, Judge Graffeo for the Court was unequivocal: the police conduct was impermissible in the absence of some "founded suspicion that criminal activity [was] afoot." Graffeo explained further that what is "critical" under New York's search and seizure protection is "whether the police were aware of or observed conduct which provided a particularized reason to request information." And "[t]he fact that an encounter occurred in a high crime vicinity, without more, [does] not pass[] De Bour and Hollman scrutiny."

In short, in New York (and in the several other states that have adopted similar rulings), there must be some legitimate, specific suspicion ahead of incriminating questions and requests to search.

[N.B. As opposed to the shameless partisanship at the Supreme Court, which has been the subject of the previous series of posts on New York Court Watcher, it should be noted that Judge Graffeo is not a liberal democrat. She is a conservative, Republican judge who was appointed by Republican, law-and-order Governor George Pataki.
Disclosure: Graffeo is also an Albany Law School alum, and we are very fond of her.]

Now, what did the Supreme Court do with a similar situation?

In Florida v. Bostick, a divided Supreme Court approved bus sweeps conducted without any legal justification. No warrant, no probable cause, no reasonable suspicion, no legitimate suspicion or other justification whatsoever.

No, that's not an exaggeration. That's pretty par for the course for the current Supreme Court. Unless the police actually force someone to answer questions or force someone to allow a search or force someone to stay put, this Court requires no justification at all. According to the Court, the federal Constitution's protection against unreasonable searches and seizures requires no reason whatsoever for the police to confront individuals and ask incriminating questions and ask to search.

As the Supreme Court emphasized in its 1991 Bostick decision upholding a bus sweep: "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search his or her luggage."

The only exception is when the police affirmatively "convey a message that compliance with their requests is required." It is even irrelevant to the Supreme Court that an individual is somewhere in which he "did not feel free to leave"--as in a bus.

And just in case its position wasn't sufficiently clear, the Supreme Court majority responded to the 3 dissenting Justices who, not surprisingly, took a different view of search and seizure protections. The Court majority made it plain:
The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times.
In short, the Supreme Court says the federal Constitution allows police to confront, ask incriminating questions and ask to search--even with "no basis for suspecting" the individual has done anything wrong. The Court of Appeals case law, by contrast, takes search and seizure protections a bit more seriously. Under DeBour and its progeny--such as McIntosh--some "particularized reason," some "founded suspicion" is a prerequisite to police confrontations in New York.

And again, because DeBour is an "adequate and independent state ground," any New York Court of Appeals ruling protecting search and seizure rights based on DeBour is final. Not subject to Supreme Court review. Not subject to Supreme Court reversal. The Supreme Court's much less protective precedents are totally irrelevant.

So if the Court of Appeals upholds the 2 mid-level appeals court's decisions on the stop and frisks in the Bronx, that's the end of the line. No federal judicial review.

Now that's states rights!

In the next post, we'll take a look at other implications of the contrast between the Court of Appeals' and the Supreme Court's treatment of search and seizure protections. I.e., the consequences of the Court of Appeals requiring some justification for police intrusions, and the Supreme Court requiring none.