Wednesday, August 8, 2012

even more on New York City's Stop & Frisks (Part 3: even more on New York vs. Supreme Court)

In this post: traffic stops, driver arrests, and automobile searches. The New York Court of Appeals versus the U.S. Supreme Court.

In light of 2 recent appellate rulings invalidating stop and frisks in New York City, we've been looking at some New York State case law pertinent to the subject. Those 2 recent rulings relied upon precedents established by the Court of Appeals, the state's highest court. As we've been discussing, there are some very significant legal/judicial ramifications.

The Court of Appeals precedents that were relied upon are the final word on New York law. They protect search and seizure rights more than corresponding decisions of the Supreme Court. Consequently, if the 2 appellate rulings are upheld by the Court of Appeals, the less-protective Supreme Court decisions are irrelevant, and the Supreme Court can't even review those cases.
[That's the "adequate and independent state ground" doctrine we've mentioned previously.]

In the last 2 posts [links below], we've looked at the Court of Appeals landmark relied upon in the 2 appellate rulings--i.e., People v. DeBour. We then looked at some other "adequate and independent" precedents of New York's high court dealing with search and seizure rights. We contrasted them with the corresponding precedents of the Supreme Court. To recap, in each instance, the Court of Appeals requires justification for the police confrontations and intrusions; the Supreme Court does not.

Asking incriminating questions and asking to search. Bus "sweeps." Searches of private property--i.e., so-called "open fields." K-9 sniffs. As we've discussed in the preceding posts, probable cause or some legitimate suspicion is required by the New York court for all of these. No justification whatsoever is required by the Supreme Court for any or them.

Let's continue. Let's look at a few more New York search and seizure precedents and contrast them with Supreme Court precedents on the same issues.

Traffic stops & driver arrests:
Stanley H. Fuld
The Court of Appeals restricts searches and arrests incident to stops for routine traffic violations. A person stopped cannot be frisked unless there is actual reason to suspect ("reasonable suspicion") that he has a weapon.
Beyond that, a person stopped cannot be arrested or searched unless there is some actual reasonable ground to believe ("probable cause") that he has committed a real crime--i.e., a misdemeanor or felony--or that evidence of such a real crime is present. (People v. Marsh, 1967; court opinion by  Chief Judge Stanley H. Fuld.)
Despite subsequent federal case law to the contrary, New York's high court has reaffirmed its position in Marsh--no arrests and searches for routine traffic offenses--numerous times.

On the other hand [and again, I'm not exaggerating or kidding], the Supreme Court requires absolutely no probable cause, or even reasonable suspicion, of a real crime or of any danger, to arrest and fully search a person who has been stopped for a routine traffic offense. That's right, the current Court allows the police to arrest, place in handcuffs, search, take to the police station, and even lock in a jail cell during "processing," any person stopped for the most routine, innocuous traffic violation. Yes, like a seat belt violation. [Yes, a real case and actual ruling.]
Oh, and when the person is taken to jail for all that processing, the Court allows the police to strip search him. [Yes, real and actual.]
And let me repeat, the Supreme Court allows all of this without a warrant and without the slightest justification to believe that the person--stopped for not wearing a seat belt or for some other minor violation--is dangerous or has committed a real crime or has any evidence of such a crime. (Atwater v. Lago Vista [seat belt violation], 2001; Florence v. County of Burlington [strip search], 2012.)

Automobile searches:
Lawrence H. Cooke
In response to a Supreme Court ruling allowing a warrantless search of a car's interior anytime the driver has been legally arrested (N.Y. v. Belton, 1981), the Court of Appeals insisted on a narrower rule. The New York court insisted that the interior of a car may only be searched when there is some justification--some connection to the crime or to safety.
There must be either some reason to believe that there's evidence of the crime in the car, or reason to believe something dangerous is in the car.
For example, the Court of Appeals would permit a car to be searched if the driver were stopped and arrested in flight from an armed robbery (i.e., search for evidence and weapons related to the robbery), or if he were arrested because of the smell of hashish (i.e., search for evidence of the illegal drug).
A search would not be permitted, however, if the driver were simply stopped for a seat belt violation (related evidence? weapons?) or for rolling through a stop sign (same?). (People v. Belton, 1982; court opinion by Chief Judge Lawrence H. Cooke.)

On the other hand, the Supreme Court's immediately preceding decision in the same Belton case held that, as far as the federal Constitution is concerned, the police may conduct a warrantless search of the entire interior of a car whenever the driver has been legally arrested--regardless of the crime. According to the Supreme Court, a car's interior--all of it-- is within the "grabbable area" of the driver. Yes, including the arrested, handcuffed driver fully under police control outside the car.
According to that Court's decision in Belton, any person arrested for any crime may be searched for evidence and weapons. His "grabbable area" may also be searched, because he might lurch and destroy evidence or grab a weapon.
So, to make the rule nice and easy to apply in automobile situations, the Court adopted the fiction that an arrested driver can always lurch into the car and grab and destroy evidence, or grab a weapon. Even in the backseat of a car whose doors and windows are closed. Even if the driver is handcuffed, shackled, under police control outside and away from the car. Even if the driver was arrested for a minor, non-violent, non-contraband related offense. No genuine justification needed; just an automatic rule. (Again, that's N.Y. v. Belton, 1981.)
[Curiously, the Supreme Court recently revisited its Belton ruling and the Court's opinion said that it really didn't mean all that. But the 4 dissenting Justices and 1 concurring Justice (That's a majority!) insisted that the Court certainly did. (Az v. Gant, 2009.)
IAE, a 5 Justice majority did seem to adopt a new rule that allows police to search the car's interior in 2 situations: 1) whenever there might be evidence related to the offense for which the driver was arrested (Like N.Y.'s Belton rule!), and 2) whenever the arrested driver could possibly access the car's interior (i.e., he might grab a weapon)--apparently, no connection to the offense is needed for this one. This latter condition, of course, ultimately still allows a car's interior to be searched in every situation, simply by keeping the arrested driver somewhere near the car so that the interior is within "grabbable" range.]

More Automobile searches:
Judith S. Kaye
In response to another immediately preceding Supreme Court decision, the Court of Appeals ruled that it is a search for a police officer to open a car door, reach into a car, and move materials from the dashboard. And because it's a search, it requires justification--i.e., some connection to the crime for which the driver has been stopped, or some threat to safety. A speeding violation and cracked windshield--for which the driver was stopped--or some similar offense, provide no reason to search the dashboard for evidence of the offense or for a weapon. Finally, if the police were really looking to see the VIN (vehicle identification number), they could simply have asked the driver to clear the VIN himself. (People v. Class, 1984 and 1986; court opinion by then-Judge Judith S. Kaye.)

On the other hand, the Supreme Court's decision in that same case held that, as far as the federal Constitution is concerned, the police need no justification, other than wanting to see the VIN. According to the Court, since a driver has no privacy interest in the VIN, looking to see the VIN is a minimal intrusion that's permitted without any additional reason. Even if the police look at the VIN by entering the driver's car and moving materials on the dash themselves. Even if the traffic offenses were entirely non-threatening, and there was no reason to suspect any evidence of a crime or a weapon, and there was no reason not to have the driver move the materials himself. (N.Y. v. Class, 1986.)

We'll continue this series in the next post and look at other relevant situations where the Court of Appeals requires some justification for a search--or doesn't permit one at all--and the Supreme Court takes a different, much less protective position.

For the first 2 posts in this series, discussing New York City's aggressive stop and frisk policies, the recent rulings invalidating 2 stop and frisks in the Bronx, the Court of Appeals landmark DeBour decision on which those rulings were based, the contrast between that precedent and corresponding decisions of the Supreme Court, and the contrast between other Court of Appeals and Supreme Court precedents, see New York City's Stop & Frisks (Part 1), July 29, 2012; and more New York City's Stop & Frisks (Part 2: more New York vs. Supreme Court), Aug. 5, 2012.