New York Search & Seizure in the Lippman Era

By Peter F. Stroe Albany Law School, Class of 2015 Court of Appeals Intensive, Spring 2014 Prof. Vincent M. Bonventre

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Jonathan Lippman was nominated by Democratic Governor David Paterson on January 13, 2009, and confirmed and sworn in on February 11, 2009.1 Replacing Judith Kaye as Chief Judge of the New York Court of Appeals,2 Jonathan Lippman brings a wealth of knowledge and passion to usher in a new era of civil rights and liberties.3 This paper will examine five influential cases to help expose the court’s jurisprudence in the area of searches and seizures. The cases will be discussed in chronological order and cover the following topics: GPS tracking devices,4 warrant requirements,5 canine sniffs,6 “founded suspicion,”7 and the “exigency exception” to the warrant requirement.8 The so-called “Lippman Era” could be said to have begun with People v. Weaver.9 Weaver was the first search and seizure case that the new court decided with the participation of Chief Judge Lippman. Writing for the majority––and reversing both lower courts––Chief Judge Lippman found that the placement of a GPS tracking device and its subsequent monitoring of a car’s location constituted a “search,” and as such, required a warrant under New York’s Constitution.10 The GPS device was placed “underneath the defendant’s street-parked van” inside the bumper, and monitored the vehicle’s location and direction for sixty-five days.11 For sixty-five days officers monitored the defendant’s movements without securing a warrant.12 Although there is no mention in the record why law enforcement placed the GPS device on the

Vincent Martin Bonventre, Toward the Lippman Court: Flux and Transition at New York’s Court of Appeals, 73 ALB. L. REV. 889, 889 (2010). 2 Id. 3 Id. 4 People v. Weaver, 12 N.Y.3d 433 (2009). 5 People v. Mothersell, 14 N.Y.3d 358 (2010). 6 People v. Devone, 15 N.Y.3d 106 (2010). 7 People v. Garcia, 20 N.Y.3d 317 (2012). 8 People v. Jimenez, 22 N.Y.3d 717 (2014). 9 People v. Weaver, 12 N.Y.3d at 433. 10 N.Y. CONST. art. I, §12; People v. Weaver 12 N.Y.3d at 433. 11 People v. Weaver, 12 N.Y.3d at 436. 12 Id. at 436–37. 1

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vehicle, the information gathered from the GPS tracker was used to convict the driver of the vehicle for two burglaries.13 At the trial the defendant’s motion to suppress was dismissed.14 Relying on both Federal and New York caselaw, the Third Department affirmed the trial court’s dismissal of the defendant’s motion to suppress the evidence seized from the GPS device. The Appellate Division held that there is a “diminished expectation of privacy in a vehicle on a public roadway,” and as such the defendant could not assert a legitimate expectation of privacy under the Fourth Amendment.15 The Third Department reasoned that “generally [speaking], conduct and activity which is readily open to public view is not protected.”16 The Court of Appeals disagreed. In a decision written by Chief Judge Lippman, the majority found that the right of an individual to be secured against unreasonable searches and seizures protects the individual and not just property.17 The Court also found that this protection from unreasonable searches and seizures attached to the individual, and that this right should be based on the individual’s notion of what is a reasonable expectation of privacy.18 In departing from the public access doctrine espoused in Olmstead v. United States,19 which held that an unreasonable search has occurred where law enforcement trespasses on the defendant’s land or property to conduct the search. The Court in People v. Weaver20, relied on the analysis in Judge Harlan’s concurrence in Katz v. United States.21 In applying Katz, Tthe majority found that although the GPS tracking device provided information that would have been accessible to the public, the defendant, however, could not have expected that law enforcement would use a GPS

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Id. at 437. Id. 15 Id. (citing People v. Weaver, 52 A.D.3d 138 (3d Dep’t 2008). 16 People v. Weaver, 52 A.D.3d at 143. 17 People v. Weaver, 12 N.Y.3d at 445. 18 Id. 19 Id. at 446; see also Olmstead v. United States, 277 U.S. 438, 474 (1928). 20 People v. Weaver, 12 N.Y.3d 433 (2009). 21 People v. Weaver 12 N.Y.3d at 446 (citing Katz v. United States, 389 U.S. 347, 357, 361 (1967)). 14

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tracking device to monitor his activity on public roadways and highways for law enforcement purposes.22 Chief Judge Lippman ruled that “the existence of a privacy interest within the Fourth Amendment’s protective ambit has been understood to depend upon whether the individual asserting the interest has demonstrated a subjective expectation of privacy and whether that expectation would be accepted as reasonable by society.”23 The decision in Weaver shows that after a few months, Chief Judge Lippman managed to convince a majority of the Court that the defendant had demonstrated a “subjective expectation of privacy” and that society had accepted this interest as reasonable.24 The Weaver court affirmed the notion of fairness by maintaining the warrant requirement for a valid search.25 Less than a year after Weaver, Chief Judge Lippman authored another majority opinion dealing with searches and seizures called People v. Mothersell.26 In Mothersell evidence was suppressed because the search was based on a warrant that did not have sufficient predicate for issuance.27 The defendant was seized and searched pursuant to an “any-persons-present” warrant.28 This type of a warrant allows law enforcement to detain and search anybody found at a specific location, irrespective of their relationship to the location or other individuals there.29 Naturally, the constitutionality of this technique was brought into question and upheld in People v. Nieves.30 In Nieves, the Court reasoned that although “article 1, § 12 of the New York State Constitution [ ] requires that a warrant particularly describe . . . the persons . . . to be seized,” nonetheless, “there could be circumstances in which a showing of probable cause to search a

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People v. Weaver, 12 N.Y.3d at 442–43. Id. at 439. 24 Id. 25 Id. at 444. 26 People v. Mothersell, 14 N.Y.3d 358 (2010). 27 Id. at 360. 28 Id. 29 Id. at 361. 30 People v. Nieves, 36 N.Y.2d 396 (1975). 23

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place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus that the statute was capable of application without constitutional offence.”31 The Court went on, however, to limit the use of such type warrants because of their indiscriminant nature, quoting from People v. Baker,32 the Court stated: The facts made known to the magistrate and the reasonable inference to which they give rise, must create a substantial probability that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description.33 The Nieves Court outlined several factors that must be addressed in order to find that the any-person-present warrant is valid, such as “the character of the premises, the nature of the illegal activity believed to be conducted at the location, the number and behavior of the persons present at the time of day or night when the sought warrant was proposed to be executed, and whether persons unconnected with the illicit activity had been observed at the premises.”34 These factors were considered essential to protect unsuspecting individuals, who are not engaging in criminal activities, from unreasonable and intrusive searches.35 If individuals find themselves in the wrong place at the wrong time because of mere coincidence, these factors were created in order to cut down on the probability that innocent individuals may be thoroughly searched, and dehumanized by overbearing law enforcement agents.36

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People v. Mothersell, 14 N.Y.3d at 362–63 (citing People v. Nieves, 36 N.Y.2d 396 (1975)). People v. Mothersell, 14 N.Y.3d at 363 (citing People v. Baker, 30 N.Y.2d 252, 259 (1972)). 33 Id. 34 People v. Mothersell, 14 N.Y.3d at 365 (citing People v. Nieves, 36 N.Y.2d 396 (1975)). 35 Id. 36 Id. 32

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The defendant in Mothersell raised two issues: (1) “that there was not a sufficient predicate for issuance of the warrant” and (2) that, “even if properly issued, it did not authorize the strip search performed on him.”37 The Court, applied the factors set fourth in Nieves, and found that “even generously read, the application at bar must be deemed unequal to its purpose.”38 The Court then described that the warrant contained: “the premises at issue were residential in nature; and that on two occasions separated by weeks cocaine in unspecified quantities had been purchased at the premises by trusted confidential informants from one or two men.”39 In analyzing the warrant the Court found that “two isolated purchases of what must be supposed to have been small quantities of narcotics cannot suffice to show that a residential location has been given over entirely to the drug trade, much less that every person at the location is probably a participant in drug trafficking.”40 Addressing the second issue of whether the visual examination of an arrestee’s anal and genital cavities were justifiable, the Court, quoting People v. Hall,41 required that law enforcement have a “specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity.”42 The Court found that “such a predicate did not exist at the time that the present warrant was sought and, accordingly, these extraordinary intrusions could not have been within any authority the warrant was capable of conferring.”43 In other words, for officers to engage in a full-on cavity search, a specific collateral reason to believe that evidence would be found in the suspect’s rectum must be present. By requiring officers to fulfill this standard the Court essentially extended protections

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People v. Mothersell, 14 N.Y.3d at 360. Id. at 365. 39 Id. 40 Id. 41 People v. Hall, 10 N.Y.3d 303 (2008). 42 People v. Mothersell, 14 N.Y.3d at 366 (citing People v. Hall, 10 N.Y.3d 303 (2008)). 43 People v. Mothersell, 14 N.Y.3d at 367. 38

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that are not afforded by the Federal Courts and the U.S. Constitution. In effect, the Lippman Court has placed another barrier between the security and autonomy of the individual and the police. That same year, following the Mothersell decision, the case of People v. Devone44 was heard. Dealing with the admissibility of evidence seized by the use of a canine sniff of a vehicle’s exterior, the majority’s holding, authored by Judge Pigott, found that the use of a canine to sniff the exterior of the defendant’s vehicle was indeed a search, and that the search only required an officer to have a “founded suspicion” and not the higher level of “reasonable suspicion” in order to conduct the canine sniff.45 The majority refused to apply the “reasonable suspicion” standard, and instead adhered to a new standard of “founded suspicion;” the Court viewed a canine sniff to be so un-intrusive that it required officers to merely believe that conduct amounting to illegal behavior was afoot.46 In dissent, however, Judge Ciparick, with which Chief Judge Lippman concurred, argued that the correct standard, which should be met before instituting such a search, is “reasonable suspicion,” and as such, the evidence seized in this case should be suppressed. Judge Ciparick conceded that while “it is true, generally speaking, an individual has a lesser expectation of privacy in a car than in a home this distinction has never affected the standard required to search areas of a vehicle shielded from outside view, and it should not now justify a search of these private spaces based on mere founded suspicion rather than the reasonable suspicion standard applied to residence and their thresholds.”47

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People v. Devone, 15 N.Y.3d 106 (2010). Id. at 111. 46 Id. at 114. 47 Id. at 114–15. 45

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In People v. De Bour48 the Court identified four different levels of intrusion that police may engage in if the facts surrounding the circumstance at the time of the search permits them to do so. The least intrusive of these is level one, where the police may simply approach an individual to “request information,” and nothing more.49 This level deals primarily with circumstances that would induce a reasonable person to ask questions regarding an individual’s name, address, destination, or anything else so cursory.50 The next level, “founded suspicion,” allows the officer to ask questions that directly deal with a specific event or occurrence that would “reasonably lead one to believe that he or she is suspected of a crime.”51 However, under this standard the officer “may request permission to search, but may not forcibly detain anyone.”52 The third level is called “reasonable suspicion,” where law enforcement may “detain an individual for a limited period of time, and can engage in a pat-down for weapons of the individual, if the officer is in fear.”53 The last and most severe level of intrusion is called “probable cause,” which allows an officer to make an arrest and search the individual incident to that arrest.54 With the standards set forth by De Bour in mind, the majority in Devone essentially allowed law enforcement to engage in more intrusive measures to search for illegal substances than before.55 The dissent opposed such an expansion of “founded suspicion” and argues that officers must have at least a “reasonable suspicion” before they may conduct a canine sniff.56

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People v. De Bour, 40 N.Y.2d 213, 229–30 (1976). De Bour, 40 N.Y.2d 213, 223. 50 Id. at 223. 51 Id. 52 Id. 53 Id. 54 Id. 55 People v. Devone, 15 N.Y.3d 106, 113–14 (2010). 56 Id. at 116. 49

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Unfortunately, unlike Weaver and Mothersell, Devone was a retrenchment of search and seizure rights. Two years after Devone was decided the Court was asked to decide another case dealing with the De Bour rule and the extent to which it applies. In People v. Garcia,57 the Court showed just how strictly it requires law enforcement to adhere to the De Bour standard of “founded suspicion” when seeking to ask questions tending to incriminate the individual to which they are posed. “New York,” Judge Smith recognizes, “is the only state in the union that forbids police officers to talk to people they meet in the street unless certain preconditions are met, and requires the suppression of evidence derived from forbidden conversation.”58 Judge Smith, speaking in dissent, finds that the “majority needlessly expands the already hyperstringent rule of People v. De Bour59 and People v. Hollman60 by limiting a police officer’s ability to address a question to the occupants of a lawfully stopped automobile.”61 In Garcia, officers lawfully stopped the vehicle that the defendant was operating due to a “defective rear break light. In addition to defendant, who was behind the wheel, there were four male occupants in the vehicle.”62 Upon stopping the defendant, officers noticed what they described as “furtive movements” by the three passengers in the rear seat.63 After requesting the driver license and registration the office also asked if “anyone in the vehicle had a weapon, and the passenger in the rear middle seat answered ‘Yes, I . . . have a knife.’”64 The officer then directed everyone out of the vehicle and with the aid of a flashlight saw something resembling a

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People v. Garcia, 20 N.Y.3d 319, 319 (2012). Id. at 324. 59 People v. De Bour, 40 N.Y.2d 210, 217 (1976). 60 New York v. Hollman, 79 N.Y.2d 181, 189–90 (1992). 61 Garcia, 20 N.Y.3d 319, 324–25. 62 Id. at 319. 63 Id. 64 Id. at 320. 58

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“weapon wedged between the front passenger seat and the door of the vehicle.”65 The officer then retrieved the weapon, which happened to be an air rifle.66 The sole issue the Court had to decide was “whether a police officer may, without founded suspicion for the inquiry, ask the occupant of a lawfully stopped vehicle if they possess any weapons.”67 The Court, speaking through Judge Ciparick “answered in the negative.”68 The People in Garcia argued that the Court should create a vehicle exception to the De Bour standard of “founded suspicion.”69 That the police may freely ask the occupants of a lawfully stopped vehicle whether they are carrying weapons regardless of whether there is evidence on part of the occupants or knowledge on part of the officer to believe that weapons are indeed in the vehicle.70 The People reasoned that the officer’s safety in such circumstances is paramount and that the individual has a lower expectation of privacy when operating a vehicle.71 However, the majority declined to carve out a vehicle exception to the De Bour rule of “founded suspicion” because, while it is true that an individual has a diminished expectation of privacy when operating a vehicle, the officer’s safety is accomplished without the use of intrusive questioning since he may order the occupants out of the vehicle while he conducts the stop.72 Here, the Court maintained its commitment to a strict interpretation of De Bour and preserved an individual’s right not be asked questions that may tend to incriminate them when they have not done anything wrong.

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Id. at 320. Id. 67 Id. at 319. 68 Id. at 324. 69 Id. 70 Id. at 324. 71 Id. at 323. 72 Id. at 324. 66

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In concluding, we turn to the most recently decided case regarding exceptions to the warrant requirement, People v. Jimenez.73 The Jimenez case is about a search that occurred after the defendant was placed in custody and surrounded by police officers. Officers were asked to intercept two Latin males attempting to burglarize an apartment in the Bronx.74 Upon arriving to the premises the officers encountered two individuals quickly coming down the flight of stairs.75 The two individuals were Hispanic and tailed closely behind by another gentleman who turned out to be the superintendent of the building who made the phone call to police.76 When the officers looked up at the people coming down the stairs they saw the superintendent gesture to them that the two individuals in front of him are the ones he called about, and at that moment the two officers made contact with the defendant and placed her under arrest for trespassing.77 After placing the defendant in handcuffs police noticed that the bag she was carrying was heavy and large enough to contain a weapon.78 The officers separated the defendant, who was now in custody, from the bag and snapped open the magnetic clasp to look inside.79 The Court in Jimenez was asked to consider whether under these factual circumstance the officers had an exigent need to search the bag of the defendant without first obtaining a warrant. The Court speaking through Chief Judge Lippman began its analysis first by setting out what is required to show that in fact an exigency existed to justify the circumventing need of a warrant. Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two requirements. The first requirement is to show that the search was not

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People v. Jimenez, 22 N.Y.3d 719, 719 (2014). Id. at 719, 720. 75 Id. at 720. 76 Id. 77 Id. 78 Id. at 721. 79 Id. 74

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significantly divorced in time or place from the arrest, and the second predicate requires the people to demonstrate the presence of exigent circumstances.80 Chief Judge Lippman speaking for the majority went on to identify the two main reasons why the exigency exception exists; “the safety of the public and the arresting officer; and the protection of evidence from the destruction or concealment.”81 An exigency to conduct the search is present when 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.”82 Here the Court found that neither reason for conducting the search could have been fulfilled since the defendant was already in custody, and the crime arrested for was a nonviolent offense, which did not presuppose to be conducted with a weapon.83 The Court held that “[i]n sum, the People’s proof failed to demonstrate that the circumstances of defendant’s arrest gave rise to a reasonable belief that her purse contained either a weapon or destructible evidence.”84 These cases, taken together, have demonstrated the delicate balance the Court of Appeals must strike between the protections and rights of people to be free from unjust and unreasonable detainment and searching, with the need to allow law enforcement to solve crimes and a root out evil. The Weaver case demonstrated the Court’s refusal to adopt the “public access” exception to the warrant requirement, which is so thoroughly enmeshed in federal case law. In Mothersell the Court makes it clear that searches conducted without a warrant are “per se unreasonable” and if obtained must fulfill its own requirements to be valid. In allowing officers to conduct canine sniff searches of an exterior of a vehicle upon the showing of a founded suspicion the Devone

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People v. Gokey, 60 N.Y.2d 311, 312 (1983). Id. 82 Id. at 311. 83 Id. at 313. 84 Jimenez, 22 N.Y.3d 719, 727. 81

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case was a retrenchment of search rights, but nevertheless, it still required that officers must be able to articulate some basis for suspecting that criminal behavior is afoot. In Garcia we saw how strictly the Court has interpreted the De Bour standards and how limited the intrusion can be that police may engage in when conducting a traffic stop. In Jimenez, we saw the Court preserve the need for a demonstrable exigent circumstance to validate a search of a bag incident to an arrest; the Court stated unequivocally that the individual’s right to be secure against unreasonable searches and seizures is paramount. New York is at the forefront of States in the area of an individual’s right to be secure against unreasonable searches and seizures. As Chief Judge Lippman’s tenure comes to a close in 2015, we can look back and see that the Court, with a few exceptions, continues to champion the rights and freedoms necessary in a free society. Continuing research into this area of New York law is highly recommended and should be maintained, for it is a truly fascinating subject.

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