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New York courts should not examine the motivation of police in making a legitimate traffic stop, said a unanimous panel of the Appellate Division, First Department, in rejecting a defense argument that the stop of a livery cab was executed as a pretext. In a case of first impression, the court said that New York courts should follow U.S. Supreme Court precedent in search and seizure law, and declined to rule that the New York Constitution affords greater protections against unreasonable, warrantless searches. The court, in an opinion written by Judge Joseph P. Sullivan, said that it would only look at whether the traffic stop was based on probable cause that a violation was being committed. If there was probable cause, Justice Sullivan said, the court would not attempt to evaluate the subjective intent of the police officer. Defense counsel said that the stop was merely a pretext for searching their client, Frank Robinson. Robinson wanted the court to order the suppression of contraband items seized after the stop, specifically a bulletproof vest he was wearing and a handgun found on the floor in front of him. But the court, observing that the state Court of Appeals has never developed a standard for evaluating what is a pretextual stop, said that the livery cab in question was speeding, and the police were justified in flagging it down. In so holding, the court affirmed the decision of Bronx Supreme Court Justice Lawrence Tonetti to deny suppression of a gun found in the livery cab, and upheld the defendant’s conviction for weapons possession. In People v. Robinson, 868, a police officer working on the homicide task force of the New York Police Department Street Crimes Unit, observed a livery cab speeding near Webster Avenue and 173rd Street in the Bronx on Nov. 22, 1993. The Street Crimes Unit officer, who was sitting in a marked NYPD vehicle with a uniformed officer, testified at the suppression hearing that he intended to give the livery cab driver a warning and a leaflet on safety tips. Pulling over the cab, the SCU officer shined a light in the passenger compartment, and observed Robinson to have a bulge under his jacket. That bulge turned out to be a bulletproof vest, which is illegal for civilians to wear. When Robinson was pulled from the car, a gun was seen by police to be on the floor directly in front of where the suspect had been seated. Robinson was arrested, charged with and convicted of third-degree unlawful weapons possession. Justice Sullivan said the defendant’s pretext argument � that the officer used the traffic violation as a subterfuge in order to investigate the passenger � was irrelevant. Without guidelines from the Court of Appeals as to what constitutes a pretextual stop, and without any indication that New York’s ban on unreasonable search and seizure is broader than that contained in the Fourth Amendment of the U.S. Constitution, the lower courts should not use the pretext doctrine, the justice said. Rather, Justice Sullivan reasoned, the courts should remain on the steadier ground of determining whether or not there was probable cause for the stop. Article 1, �12 of the New York Constitution, the panel said, provides the identical protection against unreasonable search and seizure as that in the Fourth Amendment, the court said. “New York has no unique history or tradition of assessing probable cause on the basis of a police officer’s subjective intentions,” Justice Sullivan said. The First Department’s approach was in accord with the U.S. Supreme Court case of Whren v. United States, 517 U.S. 806 (1996), which rejected the pretextual stop argument. Joining Justice Sullivan on the panel were Justices Eugene Nardelli, Angela M. Mazzarelli and David B. Saxe. Abigail Everett of the Center for Appellate Litigation represented Robinson. Bronx Assistant District Attorney Cheryl D. Harris handled the prosecution on appeal. The First Department on the issue of pretextual stops did not choose to step into the controversial area of declaring the state Constitution to provide broader protections than the federal constitution. Yet the New York Court of Appeals on several occasions in the 1980s and early 1990s made such declarations in search and seizure cases, holding for example that Article 1, �12 carried a broader legitimate expectation of privacy for the individual, and a narrower exception to allow the state to conduct administrative searches.

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