NY's Court of Appeals in the Era of Trump

New York's highest court must step up.

The reactionary direction in so many areas of national policy and, perhaps most especially, the effect that the two newest appointees to the Supreme Court will have on federal constitutional and statutory protections, require heightened vigilance by state high courts.

As the final arbiters of their individual state's own constitution and laws, state courts have the authority, opportunity, and obligation to independently insure that fundamental civil rights and liberties are enforced, regardless of what the federal high court does under federal law. As has often been true throughout its history, the New York Court of Appeals should take a--if not the--leadership role.

Seventy-five years ago, Chief Judge Irving Lehman made clear the role and responsibility of New York's high court:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.

In that case, People v. Barber (1943), the Court of Appeals refused to adopt the Supreme Court's narrow view of free speech and religious liberty and, instead, did not hesitate to protect both as a matter of New York's own constitution law. Significantly, the federal Supreme Court--a mere four months later--followed the Court of Appeals' lead and overruled its prior rights-denying decision. (Murdock v. Pennsylvania [1943], overruling Jones v. Opelika [1942].)

Today's NY Court of Appeals

That sort of leadership and influence by state courts and, in particular, by the New York Court of Appeals is needed today.

Twenty years later, in People v. Donovan (1963), involving the self-incrimination privilege and the right to counsel, then-Judge Stanley Fuld reminded the government of the Court of Appeals' independent tradition and function in our federal system of dual sovereignty:

[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would [rule the police conduct to be] a violation of the defendant's rights under the Federal Constitution....[T]o quote from our opinion in Waterman (9 N Y 2d, at p. 565), [the violation in this case] "contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."

Indeed, New York's high court relied solely on New York's own constitutional protections and precedents in that case and in so many others where, in the words of Chief Judge Charles Breitel, it reaffirmed its commitment to "extend[ing] constitutional protections...under the State Constitution beyond those afforded by the Federal Constitution." People v. Hobson (1976).

That sort of willingness to be bold and independent by state courts and, in particular, by the New York Court of Appeals is needed today.

Then, throughout the tenure of Lawrence Cooke, both as Judge and eventually Chief Judge, the Court of Appeals refused to "pay[] mere lip service to the principle of due process" (People v. Isaacson [1978]). It led the country in the rigorous enforcement of constitutional protections in both civil and criminal cases as a matter of New York state law, independent of the Supreme Court's rulings under corresponding federal law. (E.g., People v. Isaacson [1978], "traditional notions of justice and fair play;" Sharrock v. Dell Buick [1978], civil due process requirements of notice and opportunity to be heard; People v. Skinner [1980], right to counsel.)

That sort of steadfast guardianship and rigorous enforcement of constitutional principles by state courts and, in particular, by the New York Court of Appeals is needed today.

Not long thereafter, when the Court seemed at risk of losing its moorings, then-Judge Judith Kaye felt compelled to remind some of her colleagues of the propriety and obligation of a state high court to render independent judgment:

[A]t some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court....A state court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of state law, does indeed establish higher constitutional standards locally. [But even] the Supreme Court as well as its individual Justices have reminded state courts not merely of their right but also of their responsibility to interpret their own constitutions.[R]ejecting Supreme Court precedents [reflects] both the role of the Supreme Court in setting minimal standards that bind courts throughout the nation, and the role of the state courts in upholding their own constitutions. (People v. Scott, concurring opinion [1992].)

Fortunately, and in large measure owing to Judith Kaye's influence and veritable tutoring on judicial federalism, the Court of Appeals exercised its independent judgment and avoided merely following lockstep with whatever the Supreme Court decided under federal law, however questionable.

Understanding and embracing the axiomatic principles of federalism, including the independent role of state courts--as emphatically restated by Judith Kaye--is needed today by state courts and, in particular, by the New York Court of Appeals.

Nevertheless, in the later years of Kaye's tenure as Chief Judge, the Court of Appeals failed to heed those principles and did lose its moorings for a spell. Consequently, during that period the Court produced some very unworthy decisions. Among them was one of the Court of Appeals most regrettable rulings in the modern era, Hernandez v. Robles (2006), rejecting the right to marry for same-sex couples.

As Chief Judge Kaye wrote in her passionate dissent, the majority's refusal to recognize marriage equality was an embarrassing break with the Court's tradition of leadership in safeguarding fundamental rights:

This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.

 And, of course, Chief Judge Kaye was right. The Court's reluctance to safeguard constitutional rights to the fullest under New York law was, at the very very least, "an unfortunate misstep." Indeed, it has proven to be a quite shameful ruling. It placed the Court among the nation's most backward, callous, and timid tribunals. And it required New York's governor and legislature to protect equal rights because the Court had failed to do so.

That sort of timidity and underenforcement of the most fundamental constitutional mandates of equal treatment and due process, by a state court and by the New York Court of Appeals in particular, must be avoided today.

A few years hence, with Chief Judge Jonathan Lippman at the helm, the Court's national stature as a leader among state high courts rebounded. (Indeed, several chief justices of state courts around the country actually volunteered that to me during the time.)

The Court of Appeals once again began boldly to protect basic rights as a matter of state law, independent of how the federal Supreme Court might decide the same issues. So, for example, in People v Weaver (2009), the Court declared that the technological surveillance in question was a search requiring probable cause and a warrant. Whether federal Supreme Court doctrine--as embraced by the dissenters--would have dictated a different result was beside the point.

Writing for the majority, the Chief Judge made clear that a potentially contrary federal Supreme Court ruling was irrelevant:

What we articulate today may or may not ultimately be a separate standard. If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy and, in this modern age where criminal investigation will increasingly be conducted by sophisticated technological means, the consequent marginalization of the State Constitution and judiciary in matters crucial to safeguarding the privacy of our citizens.

Notably, three years later in U.S. v. Jones (2012), the Supreme Court--despite its narrow, rigidly, and regressively textualistic opinion by Justice Scalia--reached the same result as did the Court of Appeals. Significantly, a majority of the Justices, in separate concurring opinions, actually adopted the very same privacy analysis articulated by Chief Judge Lippman.

The sort of confident fidelity to a state court's independent role in protecting fundamental rights, as reflected in the Court of Appeals' decision in Weaver, is needed today.

The current Court of Appeals--with all its members having been appointed in recent years--is still a young court, with little institutional memory, and is seemingly still finding its way. At the least, it has not yet made its mark. It has yet to establish itself as an heir of the earlier courts, of carrying forth the historic tradition of the Court of Appeals as a force for vigorously protecting constitutional rights and liberties and fundamental fairness, and of doing so entirely independent of what the federal Supreme Court has done or might do.

Other state high courts around the country--the supreme courts of Iowa, Massachusetts, Oregon, Vermont, and Washington being among them--have been in the forefront of producing landmark rulings as a matter of independent state law. The Court of Appeals was conspicuously and uncharacteristically absent from any such list during a recent period. As previously mentioned, however, the Court subsequently regained considerable national stature while Lippman was Chief Judge.

New York Court of Appeals

It still remains to be seen where the Court of Appeals, with Chief Judge Janet DiFiore presiding, will eventually land. It remains to be seen how faithful this current Court will be to the historic tradition of bold, independent vigilance in the protection of constitutional rights and fundamental fairness. Indeed, that tradition has of late been manifesting itself primarily in the dissenting opinions--in the dissents penned by Judges decrying the majority's indifference to some injustice left unredressed.
(See the previous discussion in Dissents, Disappointments, and Open Questions, Part 1 and Part 2.)

In this era of Trump and of the federal Supreme Court he is remaking, the fundamental role and obligation of state courts and, in particular, of the New York Court of Appeals could not be more compelling. That role and obligation is to be ever mindful of the dual sovereignty of our federal system of government, and to stand as a bulwark in the protection of civil rights and liberties and basic justice, independent of regressive federal law and jurisprudence.

This is no time for timidity or indifference or passive acquiescence to injustice on the altar of some interpretive method. The Court of Appeals must step up.

NYCOA: June 14 Hand Downs--Dissents, Disappointments, and Open Questions (Part 1: Actual Innocence)

As readers of New York Court Watcher are well aware, as are those who have attended my lectures or heard me on the air, I have the highest regard for the New York Court of Appeals as an institution and for the Judges who serve on it. Indeed, I've made clear my view--just as I did many years ago at the end of my Supreme Court Fellowship to an august audience that included Chief Justice Rehnquist--that I revere the Court of Appeals at least as much as I do the nation's high court.

But--and you knew that was coming--I have not hesitated to be candid in discussing Court of Appeals decisions, in analyzing the individual Judges' opinions and votes, or in being critical when I thought criticism was warranted. Well, the collection of decisions handed down by the Court last Thursday, June 14, cries out for some critique. (The decision list and decisions themselves are accessible on the Court's website here: http://www.nycourts.gov/ctapps/Decisions/2018/Jun18/Jun18.html.)

Dissents
The Court of Appeals issued eight decisions that day. Six of those eight drew dissenting opinions. (I'm including those substantive concurring opinions that disagreed with the rule of law announced or how applied by the majority.)

Now there is nothing necessarily wrong with so many dissents. Yes, there are those who prefer the Court to speak with one voice, to reach a consensus in order to avoid open division. But there are others, myself included, who welcome dissenting opinions. Those opinions usually improve the Court's decision by making arguments or raising questions that must then be addressed by the majority. The result is almost always a much sharper decision and a much clearer precedent for lower courts and lawyers to follow. (And, admittedly, for law profs and commentators to critique.)

Nevertheless, there is another side to the salutary aspects of dissenting opinions. It is the occasional disappointment or even dismay with the majority opinions that they oppose. These are the majority opinions and, thus, decisions of the Court that are either wrong on the law or, perhaps worse, simply but terribly unjust. At least one of the June 14 decisions seems to fall into that category.

Disappointments
In People v. Tiger, over a two-Judge dissent, the majority held that actual innocence is not a basis for challenging a guilty plea conviction under New York law. It's not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. (Usually, cases that get to high courts such as the NYCOA or the Supreme Court do have legitimate arguments for both sides--that's why those cases are there to be settled. Indeed, the two dissenters in this case certainly believed that the statute could and should be interpreted to allow actual innocence challenges.)

So why did the Court choose to reject the availability of an actual innocence challenge? Strangely--and this is cause for at least as much concern as the Court's decision itself--the majority relied in large measure on Supreme Court precedents. Why is that strange? Consider that the Court of Appeals majority in this case relied on the federal Supreme Court's interpretations of federal protections to decide the New York high court's interpretation of a New York statute's totally independent protections. The Supreme Court's precedents were absolutely no authority for the New York law question before the New York Court of Appeals.

Beyond that, the federal Supreme Court decision most cited--five times between the majority and concurring opinions--was an unfortunate, if not a dreadful one. In that 1993 decision, Herrera v Collins, the majority of Supreme Court held that the federal Constitution did not require courts to consider actual innocence challenges to a conviction. And that Court's 6-3 majority was made possible only by the votes of Justices Scalia and Thomas who, in their own concurring opinion, insisted that the Constitution does not prohibit the conviction or even execution of an innocent person, as long as proper procedures were otherwise followed.

That's right. That was the basis for two votes that made the majority possible in the Supreme Court's Herrera decision that the Court of Appeals majority relied on with approval. Indeed, the majority opinion itself in Herrera, authored by Chief Justice Rehnquist, declined to reject Scalia and Thomas's proposition.
(Instead, Rehnquist's opinion "assume[d]" the opposite "for the sake of argument," solely to assess the defendant's new evidence as unpersuasive. Three other members of the majority--Justices White, O'Connor, and Kennedy--did make clear in their concurring opinions that they believed it would be unconstitutional to execute an innocent person; but they were unpersuaded by the defendant's evidence that he was innocent.)

In the wake of Herrera, the Supreme Court has yet to rule that convicting and executing an innocent person is unconstitutional. Why would the New York Court of Appeals ever rely on that Court's case law on the actual innocence issue?

There's more. The Court of Appeals majority in People v. Tiger rejected the availability of an actual innocence challenge in a case in which the defendant might well have been actually innocent! The two dissenters--Judges Wilson and Rivera--in fact declare unequivocally that the defendant is innocent.

Moreover, the dissenters' assertion is corroborated by the result of a lawsuit instituted against the defendant. The civil jury in that lawsuit found that the defendant did not in fact commit the wrongdoing that was the basis for the guilty plea conviction. Consider that the civil jury, of course, only had to find by a preponderance of the evidence--not beyond a reasonable doubt--that the defendant was guilty of the wrongdoing. And still, that civil jury determined the defendant to be innocent.

So why then did the defendant plead guilty? As the dissenters, as well as countless studies and examinations of guilty pleas have found, there are many reasons why defendants plead guilty. Actual guilt is not necessarily one of them. In fact, innocent persons often plead guilty.

In this case, for example, as the dissenters point out, the defendant faced the possibility of seven years imprisonment if she went to trial. So "she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence"--in fact, pleading guilty did result in a much lighter sentence than the possible seven years. And then, to repeat what has already been said, a civil jury found that the defendant was not guilty, even though that jury was aware of the defendant's own statements in the guilty plea proceedings.

Regardless of the admiration I have for the Court of Appeals and its members--and maybe because of that--I am struck by how flawed and unjust the decision is in People v. Tiger. This was not a fine Court's finest hour.

In the next part, we'll look at another significant aspect of that June 14 set of decisions.

Court of Appeals Nominee Rowan Wilson: Open Questions

The confirmation hearing for Governor Andrew Cuomo's latest pick for the Court of Appeals, the state's highest court, is scheduled for tomorrow, Monday, February 6, 2017. The Committee's Chair, Senator John J. Bonacic, has been conscientious, fair, well-prepared, and non-partisan in presiding over the hearings for Cuomo's previous 6 nominations.
[A far cry from the circus of partisanship and inanities that have characterized the confirmation hearings at the U.S. Senate for Supreme Court nominees.]

Nevertheless, given the mere one hour set aside for the Wilson hearing, it would seem extremely difficult for the Committee to get any real insight into the kind of Judge that Rowan Wilson might be. At the very least--the very very least--it would be good to know what his views are about the judicial role, especially that of a judge on a state's high court and, specifically, on the New York Court of Appeals. Indeed, to know how much thought he has given to that.

There are different views on those matters. In fact, conflicting views. And those different, conflicting views result in very different, conflicting modes of decision-making and, in turn, different, conflicting decisions.

Beyond that, some of the views often espoused about the judicial role, and often declared by judicial nominees, are...to be kind...pure nonsense. Most notably, for example, that judges don't or shouldn't make law. Whether we call it law or rule or policy or precedent or some other name, the unquestionable, irrefutable truth is that judges, especially on high courts such as the U.S. Supreme Court and the NY Court of Appeals, make law.

They necessarily do so because the very cases they decide present unresolved issues of law, conflicting laws, competing "interpretations" of the law, legitimate legal arguments on both sides, etc. The judges must choose between the possibilities and, in doing so, they set precedent--i.e., a law (or rule or policy or whatever the palatable name)--that henceforth governs all the cases that follow and the actions of the other branches.

The great judges in our history all recognized and acknowledged that judges necessarily make law. Cardozo didn't even think it a question! As he once put it: "I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life." Holmes, Frankfurter, and other greats of American law were also explicit on that point.
[Contrast that with--I'm trying to be kind--the pure nonsense we recently heard from President Trump's nominee to the Supreme Court: "It is the role of judges to apply, not alter, the work of the people’s representatives."
There would, of course, be no landmarks in American law if the great justices of the past adhered to that view. Every single landmark that Americans cherish did exactly the opposite of what Trump's nominee espoused.]

But to focus specifically on the nominee for New York's high court, we must do so realizing that there seems little in Rowan Wilson's public background that provides a good sense of his views about the judicial role or, even more specifically, of his view of the role of the Court of Appeals. At least 2 basic questions come to mind. The first is about judicial philosophy or, at its most elemental, how should a judge make decisions? The second is about the Court of Appeals. In particular, how should a judge on New York's high court decide cases in light of the Court's position in our federal system of government, and as the final arbiter of the state's law?

Rowan Wilson has no previous judicial experience. That is not in itself any problem. (See The No Judicial Experience Bugaboo.) But it does mean that he has no judicial track record. In fact, he has no record as a government official. So, unless he reveals as much at the confirmation hearing--volunteering it or responding to inquiries--we will not know much about Rowan Wilson that is really essential to knowing what kind of a Judge he may be.

JUDICIAL PHILOSOPHY
Does Rowan Wilson believe in "originalism?"
Does he believe that constitutional provisions and statutes should be limited to their specific meaning at the time of their enactment--and only that?
So, "equal protection" was originally intended to protect the newly freed Black slaves. It was NOT intended to protect women, let alone gays or non-marital children or anyone else, and it should be applied in accordance with that original intention. [Yes, that is what originalists like Justice Scalia believed.]
Moreover, as for Blacks, it was NOT intended to prohibit racial segregation. Separate but equal was fine.
Also, free speech would not include "sedition" [as in the Alien and Sedition Laws] or blasphemy or casual vulgarity.
And as for "cruel and unusual" punishments, the 8th Amendment was only intended to forbid burning at the stake, dismemberment, and the like. But gratuitously painful punishments were not themselves prohibited.
Etc.
Or does he believe in a "living Constitution" and laws?
Does he believe that specific original intentions should give way to more contemporary views about the same concepts?
Hence, "equal protection" should be extended to prohibit discrimination based on gender and birth and sexual orientation, etc?
"Equal protection" should also be construed to prohibit racial segregation?
And "cruel and unusual" should be construed to prohibit all punishments considered barbaric in today's civilized society--not just crucifixion, etc?

Does Rowan Wilson believe in "textualism" or "strict construction?"
Does he believe that constitutional provisions and statutes mean only what is explicit?
So, there is no right to privacy, or right to choose, or right to know your rights before being interrogated, or right to have a lawyer if you can't afford one when you're being prosecuted? None of those are explicit.
Likewise, there is no right to get married or be intimate with your spouse or even kiss your spouse, or right to be a parent, or right to raise your children or even play with them, or right to have a friend, or right to join a group with friends, etc., etc., etc. Not explicit.
And, because the 14th Amendment (which is the provision that guarantees "due process" against state violation) does not mention free speech, or religious freedom, or search and seizure, or right to counsel, or any other right in the Bill of Rights, does that mean that those rights should not be protected against state governments?
So too, because the Constitution protects free "speech," does that mean that only actual speaking is protected, but not any other forms of peaceful expression?
Etc.
Or does he believe that it is the underlying principles that should be protected?
Does he believe that the overarching principles and purposes of constitutional and statutory provisions should be given effect?
Hence, fundamental rights--those that are implicit in the concept of "ordered liberty" [to use Cardozo's eternal phrase] and the essential ingredients of being free--are protected by the Constitution's guarantee of "liberty," whether or not such rights are specifically mentioned.
That, of course, would also include the most intimate and private choices in one's personal and familial life, which are nowhere mentioned in the Constitution.
Similarly, rights such as free speech are to be construed to include more than just talking, the right to counsel more than being able to have a lawyer but only if you can afford one, a fair trial to include (the unmentioned) proof beyond a reasonable doubt, and "cruel and unusual" to also include punishments that are grossly excessive.
Etc.

Does Rowan Wilson believe that the judiciary should defer to the other branches?
Does he believe that the courts should approve whatever the executive and legislative branches do, except when clearly unconstitutional?
So if there is a legitimate question about the validity of legislation or of executive action, the courts should approve what the other branches have done; they should not interfere unless the other branches did something that is unquestionably invalid.
Accordingly, judicial interpretation and application of the law should mirror what the other branches have done, unless their actions are entirely irreconcilable with constitutional and other legal requirements.
Or does he believe that the judiciary should give constitutional rights and other commands their fullest possible effect?
Does he believe that the judiciary's interpretation and application of constitutional rights should be independent of what the other branches believe or have done? Independent of what the other branches prefer or what is popular?
So that constitutional rights and commands are vigorously enforced.
So that intrusions on constitutional rights and commands are only tolerated when justified by the most compelling government and societal needs.

These are among the most important questions for a nominee to a high court. At the very least, they are questions that a judicial nominee ought to have thought about. And they are questions that go to the very heart of a judge's role--answers to which those who confirm a nominee ought to be satisfied.

Then there is the nominee's view and understanding of the role of a state's high court and, specifically, of the Court of Appeals itself. Additionally, the nominee's knowledge of the historic landmarks of the Court, and of the body of case law that constitutes the Court of Appeals' jurisprudence. Briefly, for example:

How familiar is Rowan Wilson with the Court's landmark decisions and the jurisprudence that they underscore?
Is he familiar with the Court's precedents in areas as fundamental as free speech and press, right to counsel and search and seizure, due process and personal privacy, and so many others?
That these precedents are separate, independent, and different from those of the Supreme Court?
That these precedents form the foundation of much of Court of Appeals--and therefore New York--jurisprudence?
That these landmarks are a large part of the reason that the Court of Appeals has historically been one of the nation's finest and most influential courts?

How familiar is Rowan Wilson with the Court's tradition of independent state decision-making? What are his views about it?
Is he familiar with the Court of Appeals' tradition of protecting constitutional rights and liberties independent of U.S. Supreme Court decisions?

That the Court's historic protection of constitutional rights and liberties, separate from and beyond Supreme Court precedents, has proceeded under the Court's view of its responsibility to independently construe the state's law?

That when confronted with arguments based on Supreme Court precedents, many of the Court's greatest Judges were explicit in stressing the Court of Appeals' duty of independent adjudication.

As Chief Judge Lehman put it over 70 years ago, when the Court disregarded Supreme Court precedent to the contrary:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. (People v. Barber, 1943)

Lehman's successors--including Chief Judges Fuld, Breitel, Cooke, Kaye, and Lippman--all echoed the same.

Is Rowan Wilson familiar with that traditional concept of the Court of Appeals' independent duty?

Is he aware that this "judicial federalism" is recognized and practiced by most of the nation's finest state high courts and, in fact, repeatedly affirmed by the Supreme Court itself as a basic attribute of our federal system of government?

Is he aware that the Court of Appeals has historically been a national leader in independent decision-making?

All of these foregoing matters are crucial to the work of a judge on a high court--whether the supreme court of a state or of the United States. And more specifically, they are crucial to the work of a Judge on New York's Court of Appeals.

I wish we had Rowan Wilson's answers to these questions and had some sense of his views on the judicial role, on judicial decision-making, and on the role of the Court of Appeals. I do wish him well and, if I had to guess, I think he will do very well on the high court.

Based on his education, experience and achievements, he certainly seems to be more than capable of being a very fine Judge. But without some answers to the questions I've raised, it's really anybody's guess what kind of Judge he'll be.

Ignorance of the Law--by the Police--IS an Excuse (Part 6: GUTHRIE's Implications)

The majority opinion in Guthrie is cause for concern about independent decisionmaking at New York's highest court--about the Court's tradition of protecting fundamental rights and liberties on the basis of adequate and independent state law.

Historically, the Court of Appeals has not tied itself to whatever minimum federal protections might be set by the Supreme Court.
It has understood its right and duty to exercise its own judgment, as the final arbiter of its own state law. (See e.g., the Court's decisions excerpted in part 5.)

No, the Court has not always been true to that tradition.
The Court has sometimes lost its footing.
It did so, for example, in the late 1980's and early 1990's.
Indeed, in heated, competing opinions during those years, the Court seemed to be struggling with the very notion of having either a right or duty to exercise its own independent judgment.

Now, in the majority opinion in Guthrie, there are implications that the Court might have lost its footing again.
Not because of the bottom-line ruling in the case. (See part 4.)
But because of the Court's over-reliance on the Supreme Court's Heien decision to reach a decision about state search and seizure law.
And, beyond that, because of the Court's resort to the overly-defensive statements about independent decisionmaking from opinions during that late 1980's to early 1990's period.

But before focusing on the Guthrie majority opinion itself, let's be clear about a few truisms about our federal system of government in the United States:

• New York's Court of Appeals (like other state high courts) is NOT an intermediate court in the federal judiciary.
• Rather, New York's Court of Appeals (like other state high courts) IS the highest court in deciding questions about its own state law.
• New York's Court of Appeals (like other state high courts) is NOT bound by the U.S. Supreme Court's interpretations of federal law when the Court of Appeals (like other state courts) is deciding the meaning of its own state law.
• In fact, when it comes to deciding the meaning of New York's (or any other state's) own law, the U.S. Supreme Court has NO authority.
• Rather, New York's Court of Appeals (like other state high courts) has the INDEPENDENT and ULTIMATE authority to decide the meaning of its own state law, without any consideration of the U.S. Supreme Court's interpretation of corresponding federal law.
• New York's Court of Appeals (like other state high courts) must apply the U.S. Supreme Court's interpretations of FEDERAL law--when deciding questions of FEDERAL law.
• And New York's Court of Appeals (like other state high courts)--when deciding any case--may not actually VIOLATE federal law, such rendering a decision that actually VIOLATES someone's federal constitutional rights or liberties.
• But, New York's Court of Appeals (like other state high courts) has every right and authority to render decisions under its own STATE law that are DIFFERENT than U.S Supreme Court decisions under federal law.
• That includes the right and authority of New York's Court of Appeals (like other state high courts) to protect constitutional rights and liberties under its own state law DIFFERENTLY--such as MORE RIGOROUSLY--under its own state law.
• Yes, New York's Court of Appeals (like other state high courts) is perfectly free to protect constitutional rights and liberties MORE under STATE law than the Supreme Court protects them under federal law.
• All of the foregoing are ESSENTIAL attributes of our federal form of government under the U.S. Constitution--they are axiomatic, not matters of opinion.

Now what does any of that have to do with the New York court's decision in Guthrie?

Well, it has a great deal to do with it. Specifically, with the implications of the manner in which the Court decided Guthrie. Again, not the ultimate ruling in the case--i.e., that an automobile stop based on a police officer's mistake about the law, if reasonable, is still valid.

(In fact, I have little problem with such a ruling. I do question whether the mistake in Guthrie was one of law at all [see part 4], but the concern here is about something more consequential in the long run than any mischaracterization by the Court of its holding in a single case.]

What all of that does have to do with the Guthrie decision is the Court of Appeals' near-obeisance to the Supreme Court and its decision in Heien. (See part 2 and part 3 for discussions of Heien and its implications.)

Perhaps belaboring the point for emphasis: the Court of Appeals, New York's highest court (like other state high courts), is the highest court in the nation for deciding the meaning of its own state law. That, of course, includes the state's protection of constitutional rights--in Guthrie, search and seizure protections. And yet, the Court of Appeals in Guthrie relied so heavily on the U.S. Supreme Court's Heien decision. It was as though the Supreme Court's decision on federal search and seizure rights was somehow presumptively binding on the Court of Appeals in determining state law.

Let me put it another way. In Guthrie, New York's Court of Appeals, one of the nation's truly fine courts, decided a case about the state's own search and seizure protections largely by echoing whatever the U.S. Supreme Court, a quite mediocre court today, said about federal search and seizure law.

In short, the Court of Appeals majority in Guthrie behaved as if it were an intermediate tribunal in the federal judiciary.

This should be worrisome. Not only because today's Supreme Court is, to be kind, not particularly good; and that the Court of Appeals (like many other state high courts) is so much better. But also because federalism, "dual sovereignty"--the federal-state division of authority--is one of the essential safeguards of our American constitutional governance.

But the Court of Appeals majority in Guthrie seemed almost defensive about that dual sovereignty. About the right and authority (let alone duty) of exercising independent decisionmaking. About reaching a different decision, under state search and seizure protections, than the Supreme Court reached as a matter of federal law.

From its beginning, and certainly through the tenures of Chief Judges such as Benjamin Cardozo, Cuthbert Pound, Irving Lehman and, later, Stanley Fuld, Charles Breitel, and Lawrence Cooke, the Court of Appeals was a--if not the--national leader in recognizing and exercising independent state decisionmaking. More recently, Chief Judge Judith Kaye was in the forefront, both on and off the Court, of emphasizing (and, when necessary, explaining to some of her colleagues) the right and duty of the Court of Appeals, as well as of state high courts generally, of exercising independent judgment in protecting rights and liberties under state law. And with several landmarks under his brief tenure, the current Chief Judge, Jonathan Lippman, has left no doubt that he is part of the Court's storied tradition of independent leadership.

The classic statement of the Court of Appeals' tradition--and, more generally, of the role of state high courts in our federal system of government--was penned by Chief Judge Lehman. In the landmark religious liberty decision in People v. Barber (1943), Lehman, speaking for his unanimous Court, could not have been more clear:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Italics added.]

Twenty years later, then-Judge Fuld--whose state law decisions predated and often influenced Supreme Court rulings--was perhaps even more pointed. In People v. Donovan (1963), protecting self-incrimination and counsel rights as a matter of state constitutional law, he noted:

[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would regard its [the defendant's confession] use a violation of the defendant's rights under the Federal Constitution.

Indeed, Court of Appeals case law throughout the years is teeming with such pronouncements of independent decisionmaking.

Now contrast these, and the tradition they reflect of exercising the right and duty of independent decisionmaking, with the majority opinion in Guthrie. The Court's seeming reluctance in that case to exercise its own judgment about its own state law; its treatment of independent decisionmaking as somehow the exception and of simply adopting the Supreme Court's judgments as the rule; and the underlying misconstruing of the relationship between state and federal law and between the role of the Court of Appeals (and by extension, that of state high courts generally) and that of the Supreme Court--that is what makes the majority opinion in Guthrie so troublesome.

With that in mind, as well as the expressions by Lehman and Fuld of the Court of Appeals' tradition and proper role in our federal system of government, consider what the majority in Gutherie said. Consider how it spoke about the Court's exercise of independent judgment under its own state law, and about the possibility of reaching a different decision than the Supreme Court did under federal law:

[It] would constitute a departure from Heien...We have [] deviated, based on our state constitutional standards, from Supreme Court decisions that undermine our ability to "provide and maintain 'bright line' rules...". More fundamentally, while we have declined to adopt an "ironclad [methodology] to be rigidly applied" in determining whether separate standards are warranted, we have recognized "that we act [] properly in discharging our responsibility to support the State Constitution when we examine whether we should follow . . . as a matter of State law" any recent decision of the Supreme Court that marks a "change[ in] course..."
In Heien, the Supreme Court did not change course.

An independent decision under state law is not a "departure" from federal law. They are two separate bodies of law.
Nor is an independent decision under state law a "deviat[ion]" from a Supreme Court decision. It's a decision interpreting and applying a different body of law.
Nor is it a question about "whether separate standards are warranted." It's about the appropriate standards of protection under the state's own law--whether those standards end up being the same or different than the standards the Supreme Court sets under federal law.
And most certainly, the exercise of independent decisionmaking about one's own state law cannot depend on whether "the Supreme Court [did or] did not change course" in deciding federal law.

The majority's characterization in Guthrie of its decisionmaking about state law--i.e., what protections of constitutional rights and liberties are appropriate under state law, not federal--is a far cry from the historic expressions of the Court of Appeals' tradition and understanding of its proper role.
It is a far cry from: "in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment."
And it is a far cry from: "we find it unnecessary to consider whether or not the Supreme Court of the United States would" protect constitutional rights the same way.

The Guthrie majority's characterization, instead, is a reprise of those overly-defensive justifications for independent decisionmaking employed during that period, the late 1980's and early 1990's--years when the Court was suddenly struggling with some basic concepts of dual sovereignty in our federal system.

The sole dissent in Guthrie by Judge Jenny Rivera criticized the majority for its refusal to adopt an independent standard under state law. A standard separate from the federal one set by the Supreme Court in Heien.

One may or may not agree with Judge Rivera about the ultimate ruling in Guthrie to excuse a police officer's reasonable mistake.
[I have made clear that I agree with the majority on that.]

But it is hard to disagree with Judge Rivera that the majority, in deciding a search and seizure issue under state law in Guthrie, was far too reliant on what the Supreme Court decided about federal law in Heien. That the majority seemed far too tied to the Supreme Court's federal decision. That the majority mischaracterized state constitutional law at the Court of Appeals as requiring some special excuse to "depart" or "deviate" from Supreme Court federal rulings--as opposed to exercising the right and duty to render a judgment that is truly independent under state law.

Let's hope that the Court of Appeals majority in Guthrie didn't actually intend what it certainly seemed to say.
Let's hope that the Court of Appeals majority didn't actually intend to replace the Court's longstanding tradition of truly independent decisionmaking with the overly-defensive justifications employed during a few brief years when the Court seemed to be losing its way.

The New York Court of Appeals is a far better, wiser, more reliable court than the current Supreme Court. Independent decisionmaking under state law is a right and duty that is especially needed today.

Ignorance of the Law--by the Police--IS an Excuse (Part 5: GUTHRIE's Ramifications & Implications)

(Sorry for the delay in getting to Part 5--been busy away and then buried in grading exams.)

So what should one make of the New York court's ruling in Guthrie?

1) What are the ramifications?
Specifically, if a traffic stop based on a police officer's mistake is still valid, then what other police actions are valid after the stop?
2) And the implications?
Specifically, what is the significance of the Court of Appeals' following the Supreme Court's Heien decision and, more than that, relying on that federal constitutional ruling to decide a state search and seizure law issue?

We'll look at "ramifications" in this post; "implications" in the next.

But first, let's recall the Court of Appeals' Gutherie decision.
An officer stopped a car that he saw run a stop sign. Uunbeknownst to the officer, the sign had not been registered and, therefore, was unauthorized. Nevertheless, the officer's stopping the car was upheld as reasonable and, consequently, the evidence obtained from the stop--that the driver was intoxicated--could be used against him.

As already discussed, it is not at all clear that the officer's mistake or ignorance was about law, as opposed to the fact of non-registration. (See part 4.) But the Court of Appeals did state unequivocally that a police officer's reasonable mistake of law was excusable. So unless or until New York's high court issues a contrary ruling in a future case, it's safe to assume that the current law in the state is just what the Court declared in Guthrie.

Now, what about the ramifications? What else is an officer authorized to do once he's makes a stop based on such legal ignorance or mistake?

We've previously seen what the United States Supreme Court allows incident to automobile stops. (See part 3.) As long as the stop is valid--and after Heien, a stop based on a "reasonable" mistake of law by the officer is still valid--the officer may arrest the driver. That's true for even the most minor traffic offense. Then, incident to that arrest, the officer may search the person. He may also search the interior of the automobile. The officer may take the person down to the station for processing. The person may be held in a jail cell during the processing. He may even be strip searched for "security."

Yes, all that when a driver is stopped, regardless of how minor the offense--e.g., a seat-belt violation or failure to pay a traffic fine. (See the discussion of Atwater v. City of Lago Vista, 2001 and Florence v. County of Burlington, 2012 in part 3. )

Yes, the Supreme Court takes a bright-line approach--a rather extreme one at that. Even for the most minor, non-violent offense: arrest + search of the person + search of the car + taken to the station + placed in a jail cell + strip-searched. The Court allows all of that without any consideration whatsoever of the actual offense.
(If you find this hard to believe, welcome to the club. But it's absolutely true. Have I already said that the current Supreme Court is dreadful and its search & seizure case law atrocious?)

One last point about the Supreme Court. In these matters, that Court only has the authority to say what the federal Constitution allows or prohibits. Stated otherwise, that Court can only say whether certain police conduct is allowed under the federal Constitution, or is not allowed because it violates federal constitutional search and seizure rights.

So, in allowing all of the intrusions and invasions that we've been discussing, the Supreme Court is simply saying that search & seizure rights under the federal Constitution are not violated (in its view) and, therefore, that states can allow the same if they choose.

Yes, states can allow the same if they choose. States will not be violating the federal Constitution if they allow their officials to engage in that same conduct. They can allow that police conduct under their own law or not, however they choose. The federal Constitution will not be offended either way (in the current Supreme Court's view).

Ahhhhh! So that's why many state high courts render rulings that are completely different from those of the Supreme Court. As long as those courts don't violate the federal Constitution, they are free to do as they choose. And since the Supreme Court says that none of that aforementioned police stop and arrest and search conduct violates the federal Constitution--i.e., it's all allowed--the state high courts can allow it or prohibit it, however they choose, under their own state law.
(I'm repeating myself because I know that this basic principle of our federal system, that the Supreme Court does not necessarily have the last word, is foreign to many--including to many judges.)

All of that is by way of introduction to the fact that New York's high court has very different rules, under its own case law, than the Supreme Court. In fact, state courts as diverse as the high courts of Vermont, New Jersey, Pennsylvania, Iowa, Arkansas, New Mexico, Nevada, Oregon, etc., etc., etc., have protected search and seizure rights with their own state case law much more so than the Supreme Court does under its federal constitutional case law.

The New York Court of Appeals has often been in the forefront of protecting search & seizure rights as a matter of its own state case law. It has developed a body of search & seizure jurisprudence that in many regards is much more protective than what the current Supreme Court requires as a matter of federal constitutional law. Indeed, many state high courts have adopted search & seizure principles verisimilar to those advanced by the Court of Appeals.

One of those principles--and the one most pertinent to our discussion--is that there must be some reasonable relation between the offense committed and the police intrusions allowed. In short, there must be some actual justification for what the police do.

So, for example, consider a seat belt violation. We've seen that the Supreme Court says that the federal Constitution allows an arrest + search + taking to the station etc., etc., etc. (Again, see the discussion of Atwater v. City of Lago Vista, 2001 in part 3. ) The New York Court of Appeals, on the other hand, says "what's the justification for anything other than a ticket?" "Why is an arrest necessary?" "What are the police searching for that has anything to do with the seat belt violation?" "And is a trip to the station necessary?" "Holding in a jail cell?" "Strip search--any relation to the offense?"

This has been a fundamental characteristic of New York Court of Appeals search & seizure case law: What's the connection to the offense? What's the actual justification? There needs to be a justification or the arrest, search, etc. is not permitted.

Read the following selections from a few of the relevant Court of Appeals precedents over the years. I am confident that readers will find these statements of New York case law infinitely more sensible, and much more serious about search & seizure rights than what the current Supreme Court has been rendering:

There is no question, and the entire court agrees, that a police officer is not authorized to conduct a search every time he stops a motorist for speeding or some other ordinary traffic infraction....A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity....
People v. Marsh (1967), Chief Judge Stanley Fuld

[A] valid arrest for a crime authorizes a warrantless search...when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted. 
People v. Belton, 1982, Chief Judge Lawrence Cooke

The Supreme Court has interpreted the United States Constitution to permit if not require the drawing of a bright line for reasons of efficiency between permissible and impermissible searches, even though the result is occasionally to forbid a reasonable search or permit an unreasonable one...We have interpreted the New York Constitution to require that the reasonableness of each search or seizure be determined on the basis of the facts and circumstances of the particular case.
People v. Smith, 1983, Judge Bernard Meyer

This court has declined to interpret the State constitutional protection against unreasonable searches and seizures so narrowly [as has the Supreme Court]. Under the State Constitution, an individual's right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances. When an individual subjected to arrest has a privacy interest in property within his or her immediate control or "grabbable area", this court has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence rom destruction or concealment.
People v. Gokey, 1983, Chief Judge Lawrence Cooke

 Under United States Supreme Court precedent...incident to the lawful arrest of an occupant of a vehicle, the police may search the entire passenger compartment of a vehicle and containers found therein without a warrant and without any particularized evidentiary basis for doing so...This court has not adopted this bright-line approach...We have noted, instead, that the search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution exists only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence. 
People v. Blasich, 1989, Chief Judge Sol Wachtler

Under the State Constitution, to justify a warrantless search incident to arrest....requires the People to demonstrate the presence of exigent circumstances. We have recognized two interests underlying the exigency requirement: "the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment." Exigency must be affirmatively demonstrated. Accordingly, even a bag "within the immediate control or 'grabbable area' of a suspect at the time of his arrest may not be subjected to a search incident to arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag" [quoting Gokey].
People v. Jimenez, 2014, Chief Judge Jonathan Lippman

In short, New York Court of Appeals case law requires some actual justification for arresting and searching.
Unlike the current Supreme Court, which construes the federal Constitution as permitting an arrest for any offense, regardless of how minor and non-violent, the Court of Appeals has construed the state's search and seizure rights as requiring some real reason for making an arrest.
Unlike Supreme Court case law, which automatically permits a full search of the person and anything within his reach (including the entire interior of his car) incident to any arrest for any offense whatsoever, Court of Appeals' precedents determine the validity of such searches based on their actual need, i.e., safety and preservation of evidence under the circumstances.
Unlike Supreme Court case law, which allows persons stopped for the most minor, non-violent offenses to be arrested, taken to the police station "for processing," placed in a jail cell during that processing, and even strip-searched "for security," Court of Appeals' precedents require the government to demonstrate that each and every one of those intrusions be justified by some actual safety or evidentiary need.

And therefore? The ramifications of the Court of Appeals Gutherie decision, validating an automobile stop despite the police officer's mistake?

Fortunately, those ramifications are far far less drastic then they would be if the New York court followed current Supreme Court rulings on arrests and searches incident to them.
Fortunately, the Court of Appeals has exercised independent judgment in much of its search & seizure case law.
Fortunately, the Court of Appeals largely restricts arrests and searches based on what is actually justified by some law enforcement need--as opposed to the Supreme Court's automatic, no-questions-asked, bright line approach.

So the consequences of the New York court's ruling in Gutherie, upholding vehicle stops based on reasonable police mistakes, are much more limited then they are under federal law.
The consequences of such a ruling in New York (as well as in other states whose courts have developed their own case law protective of search & seizure rights) are much more limited than they are in those states whose courts have failed to exercise independent judgment--states whose courts, instead, have simply adopted the (yes, atrocious) Supreme Court search & decisions as their own state law.



In the next post, we'll discuss the implications in the Gutherie ruling for independent decision-making at the Court of Appeals. Particularly, we'll explore the majority opinion's considerable reliance on the Heien decision, and its seeming reluctance when deciding matters of state law to "depart" or "deviate" from federal rulings of the Supreme Court.

Ignorance of the Law--by the Police--IS an Excuse (Part 4: NY Court of Appeals' GUTHRIE decision)

Several month's after the Supreme Court's HEIEN decision, New York's highest court took its turn on the question of police ignorance or mistake of law.
[On HEIEN, see part 2 & part 3.]

The result in People v. Guthrie was the same--at least ostensibly so. But whether or not the result was actually the same, the ramifications are much different, because the Court of Appeals search and seizure case law that governs New York is much different. We'll get to the matter of ramifications in the next post.

For now, let's deal with my "at least ostensibly so." In short, the New York Court's decision was, curiously, quite confusing. Rather than a clear, straightforward rendering of the holding in the case, the 6-1 majority opinion seems more the product of compromise, accommodation of conflicting views among the Judges who signed on, and reaction to the pointed dissent. One might agree with the ultimate result in the case (and I do), and yet still be utterly unsure of exactly what the court decided.

Let's get to the facts of the case:

A driver ran a stop sign.
The sign stood at the edge of a supermarket parking lot.
The driver was exiting onto a public road.
A police officer saw this.
The officer pulled the driver over.
As later learned, the stop sign was not registered with the municipality.
Under state law, running such a stop sign is not a violation.
[Unrelated to the legal issue before the Court (i.e., the validity of pulling the driver over): the officer then smelled alcohol on the driver's breath and arrested him.]

There was no disagreement about some important matters.
First, running through that stop sign was not an infraction under New York's traffic laws, because the sign wasn't registered.
Second, the officer was unaware that the stop sign wasn't registered.
The only question before the Court was whether, in light of that unawareness, the officer's pulling the driver over was invalid. That is, whether, as a constitutional matter, it was an "unreasonable" stop.

[The significance for Ms. Guthrie is that the evidence of her driving while intoxicated would be thrown out of court if the stop was invalid. The much broader importance of the case is the precedent it establishes--i.e., what the constitutional law of New York is--and henceforth governs all police stops and all cases involving police stops throughout the state.]

Here, spelled out in the first paragraph of the majority opinion, is how New York's high court ruled:

We conclude that where, as here, the officer's mistake about the law is reasonable, the stop is constitutional.

Short, sweet, to the point: the stop was reasonable and therefore constitutional.
But was this case about a mistake of "law" at all? Despite the apparent clarity of the Court's statement, is that really what the Court was ruling on?

Was this case about an officer being ignorant or mistaken about the law that requires a full stop at a stop sign? No.
Was this case about an officer being ignorant or mistaken about the law that requires that a stop sign be registered? No.
Was this a case about an officer that was ignorant or mistaken about the law that requires that police must have a "reasonable" ground to stop a driver? No.

What this case was about--and only about--was an officer who apparently was unaware (i.e., ignorant or mistaken) whether a particular stop sign had in fact been registered.
Yes, that is a pure matter of fact--Was the stop sign registered or not?-- not the existence or meaning of the registration law.
That is a matter of a particular stop sign's history--Did anyone register that stop sign?--not about the registration law itself.
That is a matter of what happened or didn't happen in the past--Did the owner of the parking lot comply with the legal requirement of registering the sign?--not about the officer's mistake or ignorance about the law's requirement.

So, it's very confusing that the Court of Appeals majority should view this case as one involving a police officer's mistake of law. And a fortiori, about the majority's excusing ignorance or mistakes of the law on the part of police officers, when that issue really wasn't in the case and wasn't necessary to deciding the case.

Indeed, the Court itself seemed to understand that. To understand that this case was not really about any mistake of law. The Court actually made clear--much later in the majority opinion--that it was not excusing ignorance or mistake about the law.

In response to Judge Jenny Rivera's dissent that the Court had never before excused an officer's mistake of law, the majority explained its ruling:

[W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code. [My emphasis added.]

Well, that doesn't seem like an explanation of the Court's initially stated ruling at all. It's more like a contradiction. Just answer this:
Is the Court saying that it's excusable for an officer to be ignorant about a law--here the stop sign registration law--or is it now denying that it's saying such a thing?
Is the Court saying that it's excusable for an officer to be unaware of that law--or to be unaware of whether a particular stop sign had been registered?

The Court is denying that it would excuse ignorance of the registration requirement. It's insisting that it's only excusing unawareness that the particular sign was unregistered. And that is a pure matter of ignorance or mistake about a fact, not about the law.

Were some Judges who cast their votes in the majority uncomfortable with the Court saying that it was excusing an actual mistake of law? Did they press for language that diluted the Court's initially stated ruling? Language that made pretty clear that this case was not at all about the police officer's ignorance or mistake about the law that required stop sign registration?

And yet, and yet, the majority opinion later reinforced the confusion when it reverted to it's excusing police failure to know the law:

Finally, there is no unfairness in forgiving a police officer's objectively reasonable mistake of law...

But then again--yes, the majority opinion seems to swing back and forth--the Court concluded with the following lines, suggesting once more that it (or at least some Judges in the majority) were aware of the confusion it would be reaping and uncomfortable with the precedent (apparently) being set:

[W]e conclude that the traffic stop was justified under both the Fourth Amendment and article I, § 12 based on the officer's reasonable belief that defendant failed to stop at a valid stop sign. It is undisputed that the stop sign was of regulation color, height and dimension; its only defect was that it was not properly registered.

Again, whether it was "a valid stop sign" by having been "properly registered" is a pure question of fact, of history, of what happened or not. And whether the officer knew or didn't know about that fact hasn't a wit to do about whether the officer knew or didn't know about the law.

Let me be clear--I don't want to causing additional confusion. But, just in case anyone cares, I agree wholeheartedly with the ultimate result in this case. If a police officer sees someone run a stop sign, it seems to me perfectly reasonable and therefore constitutionally valid for the officer to stop that driver for what, again, reasonably seems to be an offense--as well as a genuine safety concern. So I do not have a problem with the Court's approving the officer's pulling the driver over in this case.

What is troubling, however, is the utter confusion in the Court's opinion--it's swinging between mistake of law and mistake of fact. What's also troubling is the Court's (apparent, because repeated) ruling. Not only was the ruling about mistake of law unnecessary (since the case really involved ignorance or mistake of fact). Beyond that, such a ruling can henceforth be applied to validate intrusions and invasions of search and seizure rights--of persons who are totally innocent of any legal wrongdoing--on the basis of official ignorance or mistake about what the law really is.

That's hardly a recipe for encouraging knowledge of the law by police officers.

The hope is that the Court of Appeals strictly limits this ruling to the kind of case that Guthrie was really about. Not a "reasonable" ignorance or mistake about the law. But about a police officer's perfectly reasonable unawareness of a particular fact--i.e., a fact about which it would be unreasonable to expect a police officer would necessarily be aware. Because that's really what was at issue in Guthrie.


In the next post, we'll look at the ramifications of the Court of Appeals ruling on mistake of law--assuming that is actually what the Court ruled on.
For now, let's just say that the ramifications are far far less drastic than they are for the Supreme Court's HEIEN  decision. That's largely because the Court of Appeals, as a matter of its own independent case law for New York, has rejected much of the Supreme Court's atrocious search and seizure jurisprudence.

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.

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.

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 http://www.nytimes.com/2012/07/11/nyregion/courts-putting-stop-and-frisk-policy-on-trial.html?partner=rss&emc=rss.) 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.]