Sunday, September 16, 2012

still more on NYC's Stop & Frisks (Part 4: still more on New York vs. Supreme Court)

(Well, after summer classes, there was Saratoga. What can I say?
And even before the meet ended, school began. So now, after my summer and back-to-school respite, New York Court Watcher is back.
Back where we left off. Then on to all sorts of other fascinating and important developments in courts, judges, and judicial-related politics. Glad to be back.) 

In previous posts, we've used NYC's aggressive stop & frisk program as a springboard to examine some basic differences between the Supreme Court's decisions, which have diluted search & seizure protections, and NY Court of Appeals case law, that is more rights-protective.
Traffic stops, automobile searches, canine sniffs, searches of private property, street encounters, bus sweeps, etc. In all, New York's highest court takes the fundamental right against unreasonable searches and seizures much more seriously than does the federal Supreme Court.
Let's finish this series of posts with a few more critical differences.

Searches of bags, luggage, other items upon arrest:
As we discussed in Part 1 of this series, New York's DeBour rule requires the police to have some legitimate suspicion of criminality in order to approach a person and ask to search. The Supreme Court requires absolutely no justification to do the same.
What about situations where a person has already been legally arrested? What may be searched--without a warrant--incident to that arrest?

Lawrence H. Cooke
The Court of Appeals has--no surprise--required some justification for a warrantless search of bags, luggage, or other items within the so-called "grabbable area" of a person who's been arrested.
There must be some "exigent" circumstance--e.g., possible danger to the public or the police, or the possible destruction of evidence. If there's no such exigency, a warrant (supported, of course, by probable cause) is required for such a search.
So, if a person has been arrested and handcuffed, or otherwise taken into police custody, and he cannot access his bag or luggage or some other property, it can't be searched without a warrant.
Not under New York's case law, that is. (People v. Gokey, 1983; another court opinion by Chief Judge Cooke.)

On the other hand, the Supreme Court has repeatedly held that full searches of the person and of any items in his immediate area are allowed--without a warrant, any and every time there has been a lawful arrest.
The fact that a person no longer has possession of or control over the item to be searched is entirely irrelevant.
No other justification but the arrest itself--and no warrant--is required for such searches. (U.S. v. Robinson, 1973; Draper v. U.S., 1959.)

Just 2 (actually 3) more.

Searches incident to stop and frisks:
The Court of Appeals and the Supreme Court both allow the police to briefly detain a person to ask a few questions (the "stop") whenever there is "reasonable suspicion" that the person is engaged in criminal conduct. They both also allow a pat-down (the "frisk") to check for weapons--and only for weapons--whenever there is "reasonable suspicion" that the person may be carrying something dangerous.
Yes, both courts allow these stop and frisks, without a warrant and without probable cause, whenever the police have good reason for suspicion.

But then the 2 courts diverge.

The Court of Appeals puts an end to these investigations--remember, conducted without a warrant and without probable cause--when the stop and frisks uncover nothing. When the questions reveal nothing incriminating, and the frisk uncovers no weapon. That's the end of it.
No more searching or seizing. No. Not without a warrant supported by probable cause.

Vito J. Titone
So, if the police stop and frisk a driver who was operating his car erratically, but they uncover nothing, that's the end of it. Unless the police have some reason to believe that there's a weapon or evidence of a crime in the car, they can't search it.
The fruitless stop and frisk exhausted whatever justification--i.e., the mere suspicion--that initially permitted this warrantless and probable cause-less encounter. (People v. Torres, 1989; another court opinion by Judge Titone.)

On the other hand, the Supreme Court allows a "frisk" of the entire interior of an automobile--whenever a driver has lawfully (i.e., with reasonable suspicion) been stopped and frisked. Even when the frisk of a driver uncovers no weapon or any other danger to the police. If the driver can be stopped for questions and frisked for weapons, the Supreme Court says that the car can be "frisked" as well. (Michigan v. Long, 1983.)

Stewart F. Hancock, Jr.
Now, suppose again that the police lawfully stop someone (i.e., based on reasonable suspicion), but then uncover nothing incriminating from the questions and no weapons from the pat-down. Can the police continue to detain the person and check him and his clothes for some evidence of a crime?
Generally no, under both New York and federal case law.

Remember, the reasonable suspicion--without a warrant and without probable cause--only justifies the brief stop for questions and the frisk for weapons. That's all.
Accordingly, under New York Court of Appeals case law, police can't continue the encounter by searching for evidence that they think they felt during the frisk. That frisk--the pat-down that is allowed without a warrant or probable cause--is solely to find and seize any weapons. Nothing further. (People v. Diaz, 1993; another court opinion by Judge Hancock.

The Supreme Court, as might be expected, does allow more.
Under that Court's case law:
No warrant + no probable cause + frisk solely for weapons + no weapons found + nevertheless, search (and seizure) for evidence whenever police think they've felt some = searches initiated via a warrantless and probable cause-less stop and frisk.
That's the so-called "plain touch" doctrine. (Minnesota v. Dickerson, 1993. [BTW, that case arose because the Minnesota Supreme Court, like the New York Court of Appeals, rejected "plain touch" and required the police encounter to end after a fruitless stop & frisk])

Electronic Monitoring:
Jonathan Lippman
The Court of Appeals does not permit electronic surveillance of a person's movements over an extended period of time, without a warrant supported by probable cause. (The case decided by the Court involved 65 days of surveillance by means of a GPS device attached to the defendant's car. It's not clear what the Court would decide about a much briefer period of surveillance.)
The Court explained that such warrantless technological monitoring:
is not compatible with any reasonable notion of personal privacy or ordered liberty...One need only consider what the police may learn...The whole of a person's progress through the world, into both public and private spatial spheres...Disclosed in the data retrieved from the transmitting unit...will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations —political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.
For the Court of Appeals, such monitoring constitutes a search. As such, it is illegal unless justified by probable cause and authorized by a warrant. (People v. Weaver, 2009; court opinion by Chief Judge Lippman.)

No one should be surprised that the Supreme Court doesn't necessarily see it that way.
That Court has made clear that, in its view, monitoring a person's movements in public places--e.g., roads, parks, malls, shops, other common areas--is simply not a search. So, no justification whatsoever is required.
You see, in the Supreme Court's view, monitoring a person's movements, whether by means of electronic devices or otherwise, does not intrude upon any reasonable expectation of privacy that a person could have. Not if he's where some members of the public could see him. Regardless of the quantity, quality, or content of the information obtained. It would be unreasonable for anyone to expect to be free from government surveillance! (That's the so-called "public access" doctrine.)
Only if the surveillance extends into a person's home or other private place does that surveillance become a "search." And only then is probable cause, a warrant, reasonable suspicion, or any justification whatsoever for the electronic monitoring required. (U.S. v. Knotts, 1983; U.S. v. Karo, 1984.)

Earlier this year, the Supreme Court did decide that electronic monitoring with a GPS device is a "search" in some cases. When it is, it must be justified by probable cause and a warrant. But, the Court's opinion relied on the fact that, in that case, the police had attached the GPS device to the person's own car surreptitiously. In other words, the police had "trespassed" on the person's property.

Indeed, the Court distinguished its prior Knotts & Karo decisions--where it approved the warrantless electronic monitoring--on the ground that there was no "trespass" in those cases. So, apparently, any electronic or other surveillance that does not involve a trespass--e.g., aerial, video, pre-installed GPS, cellular towers, physical following, etc.--would not be a "search" in the Court's view and, thus, would not require any justification. (U.S. v Jones, 2012. [See the discussion in The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal, Feb. 12, 2012.])

That's obviously a very different treatment of electronic surveillance than the Court of Appeals approach in Weaver. And as we've seen in this series of posts, there is a great deal of difference between the Supreme Court and New York's highest tribunal in many areas of search and seizure law. The Supreme Court being less protective of privacy rights and, in many situations, requiring no justification whatsoever for government intrusion. The Court of Appeals being more protective and demanding some level of justification--whether probable cause or some legitimate basis for suspicion--to render an intrusive investigation valid.

Importantly, when New York's court--or the high court of any state--protects fundamental rights under its own law more than federal law requires, the Supreme Court is powerless to interfere. As I've noted before in this blog, that's what some of us mean by states rights!