Just when you thought it was safe to get back in a car, the Appellate Division, First Department has shown that it can still engage in some pretty nifty gymnastics to make sure that there is no 4th Amendment on the streets of Manhattan.  Clearly, they’re still pretty spry for a bunch of old judges.

Via Judicial Reports, in People v. Cheatham, the court reversed Supreme Court Justice Charles Tejada’s grant of a motion to suppress, based upon rejection of the claim that the police pulled the vehicle over for changing lanes without signaling, and proceeded to search the vehicle where cocaine was found in the map pocket of the car.

The Appellate decision holds that the police stop was lawful, reaffirming the decision in People v. Rice where they similarly reversed Justice Jim Yates grant of suppression when he blew off the excuse.  But the court proceeds to address the issue of standing, and concludes that the passengers in the vehicle lacked standing to move suppress.

While the initial issue, whether police have the authority to pull a car over for changing lanes without signaling, was resolved by Rice in a technical sense, it remains that the underlying issue is really a Whren problem, since there are two things that are universally understood.  First, nobody gets stopped for changing lanes without signaling unless the cops want to search a car for other reasons or they are at the end of their shift and need some overtime. 

Second, and this goes to one of the many underlying failings of the Whren rule, failure to signal is one of those violations that is proven solely upon a cop’s say-so.  Now if we had absolute faith that no police officer would ever claim that a vehicle changed lanes without signaling, perhaps this wouldn’t be a big problem.  But no such faith exists, and cops can make the claim any time they want, leaving every human being in a car exposed to being stopped by police at will.  There are no atheists in a foxhole, and no rights in an automobile.

But Cheatham turns really curious when the court gets to the issue of standing.  The defendants were passengers in the vehicle, and thus have no inherent right to contest the stop.  As for the search, it’s impossible to say in this case since there is absolutely no mention by the court of the basis for police to have searched the vehicle once stopped, a separate curiosity in itself.

But where the defendants are charged with possession of narcotics based upon the statutory presumption of Penal Law 265.15, they are granted automatic standing to challenge the search.  And the defendants relied on this in making their motion, without a challenge by the prosecution in its response. 

The law is clear that when the prosecution relies on the presumption, the passengers get a pass on standing.  But when there is a factual basis for alleging possession, the defendant must argue standing based upon the facts.  Here, however, the people argue a hybrid, apparently, and the court splits hairs, holding the automatic standing is granted only when the prosecution relies “exclusively” on the presumption. 

At the hearing, the prosecution argued, for the first time, that they were not relying solely on the presumption, but had a factual basis for charging the defendants with possession of cocaine.  The factual basis is that Cheatham, following his arrest, talked up a storm. 

Rather, with respect to Cheatham, they assert that they will rely as well on his statements and his close proximity to the drugs. We need not discuss Cheatham’s proximity to the drugs. If the testimony that Cheatham made the statements is credited by the jury, the People will thus have proved Cheatham’s actual possession of the cocaine.

The sequences of events now becomes critical, since the post-arrest statements are being used to undermine standing to stop, search and arrest.  This point is argued on appeal, but rejected by the court.

Cheatham asks that we disregard the statements he allegedly made at the precinct on the ground that they are the fruits of an unconstitutional search, even though the issue in dispute is his standing to contest the search of the car. Thus, he argues that “it turns Millan on its head to say . . . that [his] subsequently obtained precinct statement[s] deprived him of his right to challenge the very violation from which the statement[s] derived.” Although Cheatham cannot invoke the “automatic standing” of Millan because the People at trial will be relying in part on his statements, the making of the statements do not deprive him of the right to seek to establish his standing by “demonstrat[ing] a personal legitimate expectation of privacy in the searched premises” (Wesley, 73 NY2d at 357). Moreover, contrary to Cheatham’s argument, the legality of a search cannot be determined without regard to his standing. A search is unconstitutional not in the abstract but only to the extent it impermissibly infringes on the particular defendant’s reasonable expectation of privacy (United States v Payner, 447 US 727, 731 [1980] [“the defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party”] [emphasis in original]).

This makes absolutely no sense at all.  The determination of the constitutionality of a search is based upon the facts as they exist at the time the search is performed, not upon things that happen later, particularly as a product of the search in issue. 

The court uses after-acquired statements to upset the standing issue, and then concludes that there can be no challenge unless the defendant has standing.  It’s beautifully circular, but totally irrational. 

The most basic flaw of this decision, however, is the court’s turning the passenger’s right to invoke automatic standing on its head.  At various points, the court refers to language in People v. Millan, 69 NY2d 514 (1987), about automatic standing being conferred where the prosecution relies “solely” on the statutory presumption.  There reference is used to hold that where there are additional factual bases, then standing isn’t automatic.  This is judicial slight of hand of the worst order.

Wholly omitted from the discussion is that the theory of prosecution is an either/or proposition, and that’s what is referred to by the “solely” from Millan.  Either the prosecution obtains an indictment via the statutory presumption, or the prosecution obtains an indictment based upon factual allegations.  What it does not mean is that the prosecution can enjoy a hybrid theory of possession, relying primarily upon the presumption with a few allegations of fact thrown in for good measure. 

There is no such animal, and throwing a few allegations of fact in the air doesn’t change the fact that the prosecution relied “solely” on the statutory presumption because it lacked any state of facts that would have justified the search absent the presumption.  Dressing up their claim by some equivocal observations or, worse still, statements made afterward, is absurd.

So while I was beginning to become more sanguine about the possibility of the 4th Amendment returning to use in car stops, a decision like this just sucks the joy right out of me.  One step forward and two steps back.