more New York City's Stop & Frisks (Part 2: more New York vs. Supreme Court)

In this post, let's look at a few other situations in which New York's highest court, the Court of Appeals, requires some actual justification for a search, but the Supreme Court requires none--absolutely none.

The differences are particularly pertinent in the discussion of New York City's aggressive stop and frisk policy. What about that policy?

Well, according to the NYPD's own reports, nearly 700,000 people were stopped last year by the police in New York City.
Nearly 90% of those stopped turned out to be innocent of whatever they were presumably stopped for and, in fact, of anything else.
Less than 10% of those stopped were White.

Hmmm. No wonder there is a growing outcry.

[A recent discussion of the City's stop and frisk policy, on Northeast Public Radio's Vox Pop with me as the guest, is available at: Vox Pop : Open Forum – ‘Stop and Frisk’ with Albany Law School’s Vince Bonventre : 7/17/12.]

In the last post, we discussed recent decisions of New York's mid-level appeals court that invalidated 2 stop and frisks of teenagers in the Bronx. We considered the implications of those decisions being based on New York State case law, rather than that of the U.S. Supreme Court. In short, the added protection of search and seizure rights afforded by New York's case law makes Supreme Court decisions irrelevant. Beyond that, New York decisions that enforce such added protection cannot even be reviewed by the Supreme Court.
[See New York City's Stop & Frisks (Part 1), July 29, 2012.]

We contrasted the New York Court of Appeals' landmark DeBour decision and its progeny with corresponding decisions of the Supreme Court. In a few words: New York's high court requires some legitimate suspicion to justify incriminating questions and requests to search; the current Supreme Court insists that the federal Constitution requires no suspicion--indeed, no justification whatsoever.

Now, let's briefly review some other search and seizure situations in which the New York court and the Supreme Court take opposing views. In each one, the New York Court of Appeals (as the final authority on New York law) requires some actual justification for intrusive conduct by the police. The Supreme Court (as the final authority on the federal Constitution) requires none.

[And no, I'm not exaggerating. And no, don't blame me for what--in my view and I'm sure many readers will agree--are mostly dreadful search and seizure decisions of the Supreme Court. I didn't appoint them!]

Searches of private property:

Stewart F. Hancock, Jr.

The New York Court of Appeals requires a warrant and probable cause--i.e., reasonable ground to believe particular criminality or evidence thereof--before police may enter and search someone's private property. Seems pretty unexceptional. Unless there's a genuine emergency, police need a warrant, supported by probable cause, to search someone's property. (People v. Scott, 1992; court opinion by Judge Stewart F. Hancock, Jr.)

On the other hand, the Supreme Court requires no warrant, no probable cause, no reasonable suspicion, no legitimate hunch, nothing. Even if the property owner has posted No Trespassing signs and erected a fence! That's right. As long as the police stay outside the "curtilage"--i.e., the area immediately adjacent to the residence [peeping distance]--that Court requires no justification whatsoever.

The Supreme Court claims that property owners have "no reasonable expectation of privacy" in their property beyond the so-called "curtilage." Consequently, the Court does not even consider such a search to be a "search" at all. [Not kidding!] This is the Court's "open fields" doctrine. (Oliver v. U.S., 1984.)

Canine [or K-9] sniffs:

Vito J. Titone

The New York court views a dog sniffing you, your front door, or your car as enough of an intrusion upon your privacy that some justification is needed. Sure, it's not as invasive as a full-blown search of your body or your home. So, the Court of Appeals does not require a warrant and probable cause. But it does require reasonable suspicion that you've committed or are committing a crime--e.g., drug possession. (People v. Dunn, 1990; court opinion by Judge Vito J. Titone.)

[Even a dog sniff of the outside of your car requires at least some, more generalized, legitimate ("founded") suspicion of criminality. (People v. Devone, 2010.)]

On the other hand, the Supreme Court views a canine sniff as virtually no intrusion at all. That Court, therefore, doesn't even view it as a "search" and doesn't require any justification whatsoever. That's right. Not even the most generalized, amorphous, ambiguous, suspicion or hunch is required. Nothing.
So, when a police dog is sniffing your private areas--body or property--don't worry. It's not invading your privacy according to the Supreme Court! The K-9 is only sniffing for contraband. So your constitutional liberties, search and seizure rights, are not even implicated. (Ill. v. Caballes, 2005; U.S. v. Place, 1983.)

Well, digest that for a while.

I'm sure that for many who don't study the Supreme Court or its criminal investigation decisions, the Court's decisions are surprising. Even shocking. The decisions certainly don't paint a picture of a Court that takes search and seizure rights seriously or cares much about individual privacy. Many who do study the Court don't believe that the modern Court does.

And many who study the New York Court of Appeals and its decisions are grateful that one of the nation's finest courts actually does seem to care. Does seem to take its role as a guardian of fundamental rights seriously.

There are other state courts that do so as well. That's what some [including myself] really appreciate about federalism and states rights.

In the next post, we'll continue this series and look at decisions about traffic stops and automobile searches.