As I’m painfully reminded when Niki Black at Sui Generis leaves Simple Justice out of her weekly New York blog round-up, such as here, though not here, I sometimes neglect New York cases. This isn’t good for a New York criminal defense blog, but truth be told, most of the New York decisions that come across my desk are truly inconsequential.
But there was a decision that flew under the radar last week, although it was picked up by New York Legal Update. The Third Department decision in People v Hackett initially struck me as pedestrian, even though it was a suppression decision in which the defendant prevailed. Sure, a defendant won in the Third Department, not an everyday occurrence. And the Third Department suppressed, also quite the rarity. But the issue, a car stop where the cop searched for no reason, certainly wasn’t the sort of thing that pops out at you.
But when this case made the New York Law Journal, something dawned on me. What matters about Hackett is not that it reflects some novel or remarkable turn of the law, but rather that it’s the first time in memory that a New York court didn’t find some excuse, any excuse, for upholding the search of a vehicle. What’s remarkable is that a vehicle search was brought back under the protection of the 4th Amendment. Now that’s news.
The facts of the case are provided by the court in somewhat straightforward fashion, with one glaring and painful detail.
Late at night on December 7, 2005, State Trooper Jason Lewis observed defendant driving his vehicle over the fog line. After Lewis activated his emergency lights, defendant pulled to the side of the road and leaned toward the passenger seat of his vehicle before Lewis approached. When Lewis requested defendant’s license and registration, only the registration was produced. Upon questioning defendant concerning his movement toward the passenger side of the vehicle, defendant explained that he was reaching for his cell phone, which he then showed to Lewis.
Lewis ordered defendant out of his vehicle, deciding to detain him for a traffic violation. Lewis handcuffed defendant for safety reasons, placed him in his police vehicle and ran a warrant check which revealed no outstanding warrants; he did not run a check to determine if defendant possessed a valid New York State driver’s license. Upon the arrival of a backup, Lewis went to defendant’s vehicle, opened the passenger door, and looked at the floor board. Observing “a clean floor,” he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search of the vehicle yielded a quantity of cocaine.
Note that the court glosses right over the matter of the defendant being handcuffed for safety reasons, without any explanation of what these safety reasons might be. But let’s put that aside, since no answer is forthcoming.
After restating the obvious limiting language of the automobile exception from People v. Torres, 74 N.Y. 224 (1989), the Third Department did something extraordinary: It did NOT fashion an excuse to thereupon distinguish this case from the “basic” rule of law that hasn’t actually been applies since somewhere around 1990. The Court held:
Here, no specific threat was presented by defendant’s conduct. To be sure, he was driving erratically and disappeared from Lewis’s line of sight when he leaned toward the passenger seat. However, defendant explained his movement when he produced his cell phone. And, while Lewis testified that defendant seemed nervous and repeatedly looked at his vehicle, this conduct, in and of itself, is insufficient to justify a search. Lacking any present objective indicators which could lead to a reasonable conclusion that there was a substantial likelihood that a weapon was located in defendant’s vehicle, we conclude that the search was unlawful since no actual or specific danger threatened the safety of the officers.
Now this is hardly a strong endorsement of a return to the days when the 4th Amendment applied despite the mere involvement of a motor vehicle, but at the same time, the Court suppressed. It’s been a long time since we’ve seen that happen in New York, where the mere mention of “motor vehicle” was enough to shut down a suppression hearing so fast it would make your head spin. At least this may be a harbinger of the return to the days before the knee-jerk application of the exception, and giving defendants a chance to argue that they do not shed all 4th Amendment protections the minute they enter a car.
Could the pendulum be swinging back to a state of reasonableness? It’s too soon to say, but this is certainly a step in the right direction.
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I guess I’m missing the importance of this. If the cop had just testilied a bit better — he saw the muzzle of the gun in plain sight when he looked in through the windshield; the defendant had a white powder on his upper lip; whatever. (That said, I do know some cops who tell me — and I believe them; whether or not I’m being gulled is something that I don’t get to decide — that as a matter of personal integrity, they simply never testilie.)
The decision itself is quite unremarkable. What is important is that an appellate division reversed a lower court’s denial of a car supression. That is quite extraordinary. Aside from the issue of cops testilying, courts have essentially done away with any 4th Amendment issues with searching motor vehicles, which is why this decision reflects the potential for a return to a rational 4th Amendment auto jurisprudence.
Sure; that’d be nice. Assuming that testilying is as common as some lawyers seem to think it is, it isn’t all that important, but it would be nice. One step at a time, I suppose.
Joel, perhaps I’ve been unclear. This has nothing to do with testilying. This has to do with the application of the automobile exception over the past decade in such a way that essentially all 4th Amendment protection has been lost when cars are involved. Regardless of the explanation for the stop, search, whatever (whether true, false or otherwise, such as Whren), courts have found some way to bring every auto search within some variant to the exception to the 4th Amendment. The reason this case is notable is that it rules against the search, something that hasn’t been see around here in a long, long time.
So why do you think the Court decided to reverse a denial of suppression?
My best guess is that 1) the facts here are fairly pro-defendant, and 2) the State just offered painfully awful arguments, which even a Court looking to bend over backwards for the State couldn’t swallow. (Sorry for mixing metaphors.) The State’s first argument, that crossing the fog line and reaching for a cell phone amount to probable cause to believe that contraband or evidence of a crime will be found inside the vehicle, is laughable; the State’s second argument, that looking around inside a vehicle is somehow “not a search” is equally without merit and worthy of the curt dismissal the Court wrote in its footnote.
But as you point out, the court does not second-guess the State’s assertion about concern for the officer’s safety (however unrealistic those concerns were, given the facts as presented in the opinion) – it seems the Court might have been more receptive to justifying the search as Michigan v. Long “frisk for weapons.” And if the Court were looking to bend over backwards, certainly it could have favorably considered arguments that the gun would have been inevitably discovered in a forthcoming inventory search prior to impounding the vehicle (since the officer couldn’t let Hackett, without his license, drive off); or even inevitably discovered in a search incident to Hackett’s arrest for driving without his license on him. (But I’m not a lawyer; there’s probably something about those arguments I’m missing.)
I imagine that, even where the facts favor the defendant, Court’s can often jump through hoops to avoid suppression. Hackett’s case may simply have been the perfect storm – where the facts favored the defendant, but the State offered no hoops large enough through which the Court could jump. (Sorry for mixing metaphors…again.) I’m inclined to believe that this is not an indication of things to come, but rather a lucky defendant who got the right prosecutors at the right time.
No, you’ve been clear. We just disagree on the importance of the suppression of evidence seized in blatantly unconstitutional car searches; you, clearly, think that that’s more significant than I do. Then again, you’re a practicing attorney, and I’m just a guy, so it’s not surprising that our perspectives differ, and I’m not sure that my perception is more valid than yours.
From the little I’ve followed on such issues — although a good friend of mine was the attorney in one of the key cases here (I’m not being shy; I don’t remember the name of the case, although I could look it up, I guess; the issue was suppression of evidence found in an “inventory search” pursuant to a parking ticket which was, pretty clearly, done solely to troll for evidence; the court kicked the evidence to the curb) — hereabouts, the courts actually think, much of the time, that the 4th Amendment means something, even when there’s a motorized vee-hicle somewhere around.
Joel, if you take a look at the first paragraph of the post, you will see in language about as clear as I can make it that I am writing about NEW YORK courts. You are in the Twin Cities, a lovely place but nowhere near New York. It may well be different where you are, and indeed everywhere else in the world other than New York. But this post was about New York.
Now when are you going to send me one of those cool Twin Cities Carry T-shirts?
All good points OS. And it is only a hope that this is a harbinger of things to come. But then, I’m just a cock-eyed optimist.
But there’s one thing that non-lawyers, law students and professors tend to forget when looking for reason behind appellate decisions. Even if the law and facts favor the defense, even if every aspect of the argument by the prosecution stunk, the courts have a back door. They can always affirm without opinion. There are tons of these affirmances, and they make up the bulk of appellate decisions. No reason need be given. If they want to affirm, they always have a way to do so.
The Court here chose to reverse and suppress. I can’t help but see this as a positive thing.
I agree. Even if this is a one-time occurrence, the fact that it happened even this once is still a good thing.
Car Searches May Be Supressible Again!
Bookmarked your post over at Blog Bookmarker.com!