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.

Ignorance of the Law--by the Police--IS an Excuse (Part 3: More on HEIEN & Ramifications)

In the last post, we discussed the Supreme Court's Heien decision and began to examine its ramifications. Recall that the Court approved, as constitutionally valid, a police officer's stop of an automobile for a faulty brake light. However, the Court did so, not on the basis of the legitimate safety concern presented and the need for repair but, rather, by excusing the officer's ignorance of the state law that happened to require only one light.

As we noted, the consequences of that ruling are far reaching. It provides another opening for the expansive exceptions that today's Supreme Court has adopted to basic search and seizure protections. Let's not mince words--this is about the drastic intrusions and invasions that this Court permits for even the most minor offenses.

Actually, especially after the Heien decision, the state of current constitutional law is even worse than that. Now, all those intrusions and invasions are permitted for what a police officer mistakenly believes is one of those minor offenses.

To dispel the understandable skepticism that some readers may have about whether the Supreme Court's decisions could really be as bad as I am making them sound --just like the skepticism my students have before they read the case law--let's look at a couple of those decisions. This should erase any doubt about just how atrocious current Supreme Court jurisprudence is.

Let's start with Atwater v. City of Lago Vista (2001). It's now settled constitutional precedent relied on in subsequent decisions. Here are the facts:

A Mom is driving with her young children in the car.
They aren't wearing their seat belts.
Mom's car is pulled over by a police officer.
She's arrested for the seat belt violation.
She's handcuffed.
She's taken to the police station.
She's ordered to remove her shoes and other items and to empty her pockets.
She's placed in a jail cell during "processing" of the seat belt violation.

Not kidding. For a seat belt violation.
Lest there be any doubt, here are the facts as stated in the Court's own syllabus:

Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond.

The Supreme Court held that all of this was perfectly fine. The 5-4 majority ruled that none of this violated the Constitution's prohibition against unreasonable searches and seizures.

It makes no difference, according to this Court, that an offense--like a seat belt violation--is extremely minor. It makes no difference to this Court that there isn't any real necessity [Or any reason at all!] to arrest and handcuff and search the offender--like the Mom--and hold her in a jail cell.

No, according to the modern Supreme Court, an arrest, a search incident to that arrest, and a trip to the police station for "processing," including being locked in a jail cell, are all perfectly permissible whenever the police have a "reasonable" ground--i.e., "probable cause"--to believe that someone has committed even the most minor offense.

Again, lest there be any doubt, here are the Court's own words:

If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender....[The police officer] was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater's arrest was in some sense necessary....The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.

[Anyone interested should read the dissenting opinion of Justice O'Connor who clearly found the Court's ruling to be as outrageous as I do.]

OK, readers might now ask, what else is there? It can't get too much worse than that seat belt case, can it?
Oh yes it can, and yes it did.

Try this one, Florence v. County of Burlington (2012). In that case, the Court upheld the strip search of an automobile passenger who was arrested for a non-violent, non-contraband related, past minor offense.

Actually--maybe you're expecting this--the Court's decision was even worse than that. The Court approved a second separate strip search of that passenger as well. And, oh, by the way, it just so happens he wasn't guilty at all. The police officer arrested him on a mistake!

Here are the facts:

A car was stopped for a traffic infraction.
When the passenger identified himself, he was arrested for failing to pay a previous traffic fine.
The officer was relying on a warrant in the state's computer system.
The passenger insisted that he had paid the fine and presented documents proving he had.
Nevertheless, he was handcuffed, placed in the patrol car, and taken to the local jail.
There, the passenger was made to strip naked for a full inspection, including that of his genitals.
He was held in that jail for six days.
He was then taken to the county correctional facility.
He was once again made to strip naked for a full, even more intrusive inspection.
The next day, he was finally brought before a judge.
The judge ordered the innocent man's immediate release.

Any search and seizure rights problem under those facts? Well, this Supreme Court didn't see any.

The Florence case was decided eleven years after Atwater. The Supreme Court simply took the next step.  Florence was the ultimate extension of the search & seizure case law that the Court has been building for the last 30 or so years. Relying heavily on Atwater and its precursors, the Court did what those precedents suggested it would.

Minor offense? No matter. An arrest and full search are permitted.
Nothing at all to suggest violence or weapons or contraband or any evidence of such an offense or any other? No matter. An arrest and full search are still permitted.
A ticket or warning would suffice? No matter. An arrest and full search and taking to the station for "processing" are permitted.
Police officer actually mistaken about an offense--even the most minor one--having been committed? No matter. An arrest and full search and taken to the station for "processing" are constitutionally valid and the mistake is excused.
Again, police officer mistaken. No matter--all of the foregoing, plus a strip search or two in the interest of "jail security" is permitted.

Here's how the Court "explained" itself in Florence:

One of the central principles in Atwater applies with equal force here. Officers who interact with those suspected of violating the law have an “essential interest in readily administrable rules.” [Citing to Atwater, as well as to Belton (1981), one of the Court's first decisions down this road.] The officials in charge of the jails in this case urge the Court to reject any complicated constitutional scheme requiring them to conduct less thorough inspections of some detainees based on their behavior, suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities....Even assuming all the facts in favor of petitioner [the passenger], the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions.

Hmm. Arrest, jail, and a strip search or two for failing to pay a traffic fine--which he actually did pay!

So getting back to Heien. That decision, validating a stop made by an officer based on his ignorance or mistake of the brake light law, certainly flows from Florence--and numerous other precedents of the modern Court--where it has excused "reasonable" or "good-faith" mistakes by the police. Indeed, the Court has done so even in cases where the so-called "reasonable" or "good-faith" mistakes resulted in searches or seizures that the Court itself acknowledged were unconstitutional. (I.e., the so-called "good-faith" exception to the exclusionary rule. But delving into that is another matter.)

So Heien, the brake light decision, is no surprise at all when viewed in the context of Atwater, Florence, and the decisions upon which they were built. But whatever one might think about the decision in Heien itself--i.e., excusing a "reasonable" police mistake about the brake light law, considered in the abstract--the ramifications are what is truly worrisome.

That's because Heien triggers those drastic intrusions and invasions that the Supreme Court automatically allows whenever the police "reasonably" believe that someone has committed an offense. Regardless of how minor the offense. And regardless of whether any such offense was actually committed. In short, a "reasonable" belief = arrest = search = jail for processing.

To conclude, let me repeat what I wrote in the last post about why the Heien decision, taken together with the truly atrocious previous decisions of the modern Supreme Court, contravenes any serious regard for the Constitutional guarantee against unreasonable searches and seizures:

A stop for violating the law--and again, now, after the Heien decision, even a stop for something a police office mistakenly believes violates the law--allows the officer to do all of the following:

• arrest the driver [or passenger], even for a very minor traffic offense the officer believes the driver [or passenger] committed
• search the driver [or passenger] incident to that arrest, even without a warrant or any actual need to do so
• also search any so-called "grabbable" area, which the Court deems to include the entire passenger compartment of the car--again, without a warrant or any actual need to do so (unless the driver [or passenger] is shackled in the back of the patrol car and, thus, metaphysically incapable of reaching into his car)
• handcuff the driver [or passenger] and take him to the police station "for processing"
• place the driver [or passenger] in a jail cell during the "processing"
• subject the driver [or passenger] to a strip search--yes, a strip search, including a close inspection of his genitals--if he's placed in a jail cell with others during that "processing"

All that, even for a very minor traffic offense that an officer believes a driver or passenger has committed. And even if the officer is wrong and no offense was actually ever committed.

I feel compelled to say it one more time: atrocious!

In the next post we'll take a look at the New York Court of Appeals decision last month in People v. Guthrie. It's a somewhat similar case and decision, but the ramifications are far far different.

Ignorance of the Law--by the Police--IS an Excuse (Part 2: Supreme Court's HEIEN decision)

Consider this:

A police officer in a patrol car notices that the car in front of him has only one of the two brake lights working.

So the officer alerts the driver to pull over.

Has the officer acted reasonably?

Is it reasonable for an officer to stop a driver when that officer notices a potentially unsafe condition?

Stated otherwise, would we think it unreasonable if an officer stopped us because he saw that a brake light or a headlight or a turn signal on our car was not working?

Or would we think it made sense for an officer to do so and to tell us the light is not working and we should get it fixed?

In Heien v. North Carolina, a much talked about case decided by the Supreme Court a few months ago, an officer did stop a driver because he did notice that one of the driver's brake lights was not working.

Is it really a difficult question whether such a stop is reasonable? Or should this have been a pretty easy case? Simply put, is it reasonable, or is it unreasonable, for a police officer to stop a driver when the officer notices a potentially unsafe condition in need of repair?

Well, the Supreme Court in Heien didn't take that easy, straightforward route.

No, instead it literally made a big federal case out of the matter.

Indeed, a federal constitutional case.
The Court focused on whether it is valid for police officers to stop automobiles when the police--incorrectly--believe a driver is breaking the law.

And the ramifications of the Court's focus and decision are considerable.

In short, instead of simply deciding that it's fine for a police officer to stop a car when the officer sees a potentially unsafe condition--like a broken brake light--the Court chose to render a much more controversial ruling: that it's perfectly fine for an officer to pull a driver over for breaking the law even when the officer is wrong, More bluntly, even if the officer is ignorant or mistaken about the law. And, yes, the ramifications are considerable.

But first, a little background on the Heien case.

A very old state law in North Carolina required only that a vehicle be “equipped with a stop lamp on the rear." There were other provisions of the state's law that created some ambiguity. But the state courts below viewed the law as requiring only one brake light, not two. The Supreme Court, in deciding the validity of the police stop in Heien, chose to address that state law and to render a decision excusing the officer's ignorance or mistake about it.

Never mind the unsafe condition of the car. Never mind the reasonableness of a police officer stopping a car when there's an unsafe condition in need of repair. No. Instead, focus on the officer's ignorance or mistake about the law. Then forgive that. And then, go further, and hold that a stop is constitutionally valid even if based on an officer's ignorance or mistake about the law.

Yes, excuse the officer's ignorance (more gently spoken of as a "mistake") about the law. So what if a police officer is ignorant or mistaken about the law? If that ignorance or mistake is understandable--i.e., if it's not "unreasonable"--then the stop of the automobile is perfectly fine.

But one might ask: so what's the big difference? Whether it's perfectly fine for the police to stop a car for an unsafe condition, or it's perfectly fine to stop that car based on the officer's ignorance or mistake of the law--what's the difference? Same result, no?

NO, not the same at all!

The ramifications really are considerable.

The consequences are far different.

The degree of police intrusion permitted is far different.
Those differences are, in fact, drastic.

Here's why:

A stop for a potentially unsafe condition, without more, would simply allow a police officer to inform the driver and, perhaps, ask to see the driver's license and registration.

But a stop for violating the law--and after the Heien decision, even when the police officer is wrong about the law and there really isn't any violation at all--allows the officer to do much much more.

A stop for violating the law--and again, now, after the Heien decision, even a stop for something a police office mistakenly believes violates the law--allows the officer to do all of the following:

• arrest the driver, even for a very minor traffic offense the officer believes the driver committed
• search the driver incident to that arrest, even without a warrant or any actual need to do so
• also search any so-called "grabbable" area, which the Court deems to include the entire passenger compartment of the car--again, without a warrant or any actual need to do so (unless the driver is shackled in the back of the patrol car and, thus, metaphysically incapable of reaching into his car)
• handcuff the driver and take him to the police station "for processing"
• place the driver in a jail cell during the "processing"
• subject the driver to a strip search--yes, a strip search, including a close inspection of his genitals--if he's placed in a jail cell with others during that "processing"

All that, even for a very minor traffic offense that an officer believes a driver has committed.

I know, many readers are now saying that this is an exaggeration. That this cannot be so. That the Supreme Court could not possibly permit this kind of excessive, unnecessary, wholly arbitrary interference with someone's liberty and invasion of privacy. My students don't believe it either (until they read the Supreme Court's decisions, that is). Most Americans, I am sure, would not believe it. Many, if not most, I'm sure, would be aghast.

Unfortunately, all of the foregoing is just what the United States Supreme Court does permit. All of the foregoing is just what the Supreme Court says is perfectly fine under the Constitution.

(N.B., far better courts in this country, such as the New York Court of Appeals and other state high courts enforcing their own state constitutional protections, do not permit such atrocious--yes, atrocious in my view--intrusions and invasions based on minor offenses, or without some actual necessity.)

Yes, the Supreme Court--especially in recent years when the Court has been dreadful (yes, dreadful in my view)--has made clear that even the most minor offenses permit these intrusions and invasions. And yes, I know I'm repeating myself. But that's only because, after a career of studying Supreme Court decisions, I still find it astonishing--as in appalling--that the supposed "ultimate guardian of our liberties" would show so little concern for basic search and seizure protections guaranteed by the Constitution.

OK then, what about actual examples of such Supreme Court decisions?
Sure.
That's exactly what we'll look at in the next post.
Warning: hold onto your seats, because it will be hard for most readers to accept that this is the current state of constitutional law under our Supreme Court today.

Ignorance of the Law--by the Police--IS an Excuse

The Supremes and NY's High Court Say So 

Ignorance of the law is no excuse, right?
Well, almost always.

Driving 65 mph because you didn't see the 55 limit posted? No excuse.
Thinking it's ok to let your spouse take some of your prescription medication for her pounding headache, unaware that your state criminalizes such sharing? No excuse.
Serving wine with dinner to your minor child, niece or nephew, unaware that your state allows no exceptions even within your own home. No excuse.
Carrying your lawfully registered firearm, unaware that the state your visiting has far different restrictions than your home? No excuse.
Etc., etc., etc.

But now suppose a police officer pulls you over for headlights that seem too bright, but are actually legal. Officer excused? Stop lawful?
Or an officer pulls you over for tinted windows that seem too dark, but are actually legal. Officer excused? Stop lawful?
Or an officer detains you for carrying a concealed firearm, unaware of special regulations authorizing you to do so. Officer excused? Detention lawful?
Or an officer detains you for wearing some police attire, unaware that the state's illegal impersonation law does not cover that. Officer excused? Detention lawful?

It just so happens that recent judicial decisions do in fact excuse officer ignorance of the law.
And those decisions do in fact hold that such stops or detentions are perfectly lawful.

More than that, these decisions were not rendered by some backwater courts.
No, these are recent decisions of two of the nation's most important courts: the United States Supreme Court and the New York's highest court, the Court of Appeals.

Both courts in the last several months rendered decisions placing their respective stamps of approval on stops based on police ignorance--or "mistake"--of the law.
The Supreme Court ok'd such stops under the United States Constitution.
The New York high court did so under the state's own constitutional search and seizure protections.

In the Supreme Court case, Heien v. North Carolina, the police officer stopped the defendant because one of his car's two brake lights wasn't working. Under the state's law, however, only one working light was required. (The stop resulted in the officer's discovering contraband in the car.) The Supreme Court, in an 8-1 vote, excused the officer's ignorance of the state's law,  and it held that the stop was constitutional.

In the NY Court of Appeals case, People v. Guthrie, the police officer stopped the defendant after seeing him drive through a stop sign. Problem was that the stop sign, at the exit of a private shopping center parking lot, was not legally authorized. (The stop resulted in determining that the defendant was driving while intoxicated.) New York's high court, in a 6-1 vote, excused the officer's ignorance that the stop sign was unauthorized. The court held that the stop was valid under the state's constitution--in addition to being valid under the Supreme Court's Heien decision.

These are significant decisions with considerable ramifications. That is not to suggest--or even intimate--that these decisions were wrong as a matter of law or unwise as a matter of policy. But the implications are far reaching and need to be explored.

We will do that in the next few posts.
First we'll look at the Supreme Court's decision. It happens to be the latest in a long series of decisions in which the Court seems increasingly less concerned about search and seizure rights.
We'll next look at the Court of Appeals decision which, albeit rendered by a court which typically requires much more justification for police intrusions, also forgave police ignorance--again, "mistake," as courts usually label it when speaking of official ignorance.

So the Heien decision in the next post(s).
New York's Guthrie decision after that.

Supreme Court, 2013-14 Term: Quick Recap (Part 2: criminal cases)

Let's now move to the Court's decisions in criminal cases. As we did with civil rights and liberties decisions in the previous post, we'll take a quick, bare-bones look at some of the most significant cases.

(Part 2: Right to Silence) Supreme Court: Right on DNA Swab and on Silence

Finally Part 2. Since Part 1 was posted a month ago--discussing the Supreme Court's 5-4 ruling allowing warrantless DNA swabs of arrestees charged with violent crimes--we have turned our attention to the decisions on affirmative action, voting rights, and same-sex marriage, as well as the verdict in the George Zimmerman trial. Now let's get to Part 2: the Court's ruling on using a suspect's silence against him.

A few preliminaries.
It was another 5-4 ruling.
Actually, the vote was 3+2 vs 4.
On one side it was Chief Justice Roberts and Justices Alito and Kennedy, plus Justices Scalia and Thomas.
On the other, it was Justices Ginsburg, Breyer, Sotomayor, and Kagan.
Yes, 3+2 vs 4 on whether a suspect's "right to silence" was violated.

The conservative Republicans versus the liberal Democrats.
So you can take a good guess who sided with the prosecution, and who with the accused.
Who said it was okay to use a suspect's silence against him, and who said it was unfair.
And since the conservative Republicans were in the majority, you know that the prosecution won and the suspect lost in this case.

That surely doesn't mean that their decision was wrong--or that it was right.
It just means that the Justices were divided in this case as they typically are in ideologically charged cases.
Typically, all or most of the Republicans versus all or most of the Democrats.
Same for conservatives versus liberals.
Ideology versus ideology.
Party versus party.

We've discussed this before.
It's just not a very good court.

Yes, sometimes a Justice from one camp jumps to the other.
And yes, Kennedy is the swing-vote who sometimes leaves the conservatives and gives the liberals a majority.
But typically how do they vote?
In the cases that we and they actually care about, feel strongly about?

Typically the votes break as expected in cases rife with ideological passion.
Much too much voting along strictly ideological lines.
Even worse. Along partisan lines.
[See e.g., Part 12: [yes, still] A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!, 7/7/2012; and the preceding parts of that series.]

So what about this particular case, Salinas v. Texas ?
This was a "right to silence" case.
It involved a double murder--in Texas--police questioning--of a suspect--at the police station--in the interrogation room--without a lawyer--without MIRANDA warnings--then a trial--the defendant didn't testify--then a guilty verdict--and a 20 year sentence.

The rub?
During police questioning at the station-house--when the defendant was only a suspect and not under arrest--he suddenly went mum. When asked a question about the murder weapon, he became silent, looked down, bit his lip, clenched his hands, and otherwise behaved very nervously. He then continued to answer other questions.
During the trial, the prosecution presented evidence informing the jury about the defendant's sudden silence, and about his nervous reactions to the potentially incriminating question.

So did informing the jury violate the defendant's constitutional "right to silence?"
This issue is pure law and order versus protecting rights of criminal suspects.
Crime control versus due process.
[Classic Herbert Packer's 2 models of criminal justice.]

Supreme Court: Right on DNA Swab and on Silence (Part 1: DNA)

As the Court's term comes to a close, it customarily releases decisions in some of its most closely watched cases. Some of the most controversial, deeply divided and divisive issues. Blockbusters.

At this point, we are still awaiting decisions on same-sex marriage, affirmative action, and voting rights. There's not much time left in the month. Then the Justices take off for their summer break. So those decisions will come any day now.

In the meantime, however, the Court has already rendered several 5-4 decisions this month that have stirred considerable emotional response--both condemnation and applause--from Court-watchers, the bar, academics, and commentators generally. Let's take a look at two of them. (More will likely come down as soon as I write and post this.)

These two, like most of the Court's decisions, are pretty important. Beyond that, they involve matters of considerable interest to the public generally. Matters which the public generally--and not just Court-watchers, lawyers, etc.--have heard about. Have some familiarity with. Law and order matters.

DNA and the right to be silent.

In the DNA case, Maryland v. King, the Court gave its approval to taking a cotton swab of an arrestee's cheek to obtain a DNA sample. The sample is used to check for a match with an unsolved crime in a national DNA database.

In this particular case, the defendant was arrested for a violent crime--i.e., designated first-degree assault under Maryland law. He was taken to the police station for booking, including photographing and fingerprinting. Under the state's DNA collection law in question, the booking also included taking a "buccal" (cotton) swab of the defendant's inner cheek.

The DNA sample thus obtained from the defendant was then analyzed and compared with those stored in a national database. The defendant's DNA was found to match that of a sample collected years earlier in the investigation of a yet unsolved rape. The match ultimately resulted in the defendant's conviction for that rape.

The Supreme Court, in a 5-4 decision, approved the DNA collection and matching procedure against claims that it violates the 4th (and 14th) Amendment protection against unreasonable searches. In short, the Court concluded that procedure was reasonable. In my humble--sincerely humble--opinion, the Court got it right.

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.]

The GPS Decision--The Video

Here's a brief TV interview on the troubling aspects of the Supreme Court's ruling in U.S. v.. Jones:
Albany Law’s Bonventre Explains SCOTUS Ruling on GPS Tracking
[or paste on the browser:
http://www.nystateofpolitics.com/2012/01/albany-laws-bonventre-explains-scotus-ruling-on-gps-tracking/]

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For The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal, Feb. 12, 2012, see the immediately preceding post below.

The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal

The 4th Amendment does not prohibit unreasonable searches--only unreasonable searches of the few items it specifically mentions.
The 4th Amendment's fundamental concern is not even a search per se--it's concern is physical trespass.
The 4th Amendment is not even concerned with all physical trespasses--but only a physical trespass of an item it specifically mentions.
The Court's decisions protecting private activities from unreasonable searches (rather than protecting specified areas from physical trespass)--are deviations.
The Court's earlier decisions permitting warrantless wiretapping, warrantless eavesdropping, and warrantless searching of private property other than the house were correct under the 4th Amendment.
The GPS search in this case was unconstitutional, not because of its unreasonable invasion of personal privacy, but because the police "trespassorily" "encroached on a protected area."

--Justice Scalia's view of the 4th Amendment,
as expressed in his opinion for the majority in U.S. v. Jones

The 4th Amendment cannot be applied using 1791 trespass law.

The 4th Amendment must be adapted to 21st century technological surveillance.

A physical trespass is not the same as a search--nor is a physical trespass required for one.

4th Amendment doctrine must be concerned with modern, electronic surveillance, whether trespassory or not.
4th Amendment decisions that focused on physical trespass of a specified item have been repudiated.

The prolonged GPS search in this case was unconstitutional because it was an unjustified intrusion on privacy that reasonable people expect.

--Justice Alito's view of the 4th Amendment,

as expressed in his separate concurring opinion

Before going further, let's look at a few of the Court's past decisions that Scalia relied upon and explained with approval. Some, including me, may find this alarming.

Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1)

(Back from end of semester + winter break + Arizona + 

beginning of new semester + other excuses for the respite.)

Yes, it's a search!


Electronically monitoring someone's movements by means of a tracking device, secretly attached to his car, is a search. That's what the Supreme Court ruled last week.


It means that government must get a warrant before it attaches a GPS (global positioning system) device to someone's car, without his consent, and uses that device to obtain information about his coming and going and stopping and visiting, etc. If the government does not first get a warrant--i.e., authorization from a judge based on some good reason for conducting that search--then the search is illegal. As a result, any evidence obtained in that search will be largely unusable by the government in a criminal trial.


New York State's highest court, the Court of Appeals, had reached the same decision a few years ago. As has happened many times in the New York Court's history, the Supreme Court has followed suit.


The New York Court of Appeals case was People v Weaver (2009). That Court, in an opinion by New York's Chief Judge, Jonathan Lippman, ruled that the state constitution's protection against unreasonable searches was violated when the police conducted a surreptitious GPS surveillance, over the course of several weeks, without obtaining a warrant. In short, GPS surveillance IS a search, so the state constitution requires a warrant. [See the discussion in New York Court Watcher at the time: Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause, May 12, 2009.]

The Supreme Court last Monday, in U.S. v Jones, reached the same conclusion under the federal constitution. In an opinion by Justice Antonin Scalia, the Court ruled that the same kind of GPS surveillance, conducted by the police in that case, was indeed a search and, therefore, that the 4th Amendment's protection against unreasonable searches required a warrant.

But that's where the similarities between the two decisions end. That's just about the end of the agreement between Lippman's opinion for New York and Scalia's opinion for the Supreme Court. And that's why Justice Samuel Alito refused to join Scalia's opinion. That's why Alito wrote a separate concurring opinion and why three other Justices joined him instead of Scalia. Beware!