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.)

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.]