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New York’s Court of Appeals on Tuesday followed the lead of the U.S. Supreme Court and more than 40 states in holding that police officers can use a motor vehicle violation as a pretext to pursue suspicions of criminality. The court split 4-3 in deciding to adopt as a matter of state law the U.S. Supreme Court’s 1996 decision in Whren v. United States, 517 U.S. 806. In Whren, the justices unanimously held that as long as there is objective evidence of a motor vehicle infraction, the subjective motivations of the police officer are of no constitutional concern. Since then, Justice Anthony Kennedy has expressed reservations about the holding (see Maryland v. Wilson, 519 U.S. 408, 1997), but it remains the law of nearly every state. Tuesday, the Court of Appeals became the latest state court to adopt Whren and reject an independent state constitutional claim. While the New York judges were closely divided on whether the state constitution provides a layer of protection against pretextual stops above that of the U.S. Constitution, all seven rejected the primary motivation test that had been urged by civil libertarians. “We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate Article 1, �12 of the New York State Constitution,” Judge George Bundy Smith wrote in the prevailing opinion. “In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant.” The three cases decided in one lengthy opinion Tuesday presented the court with its first post- Whren opportunity to comment on pretextual traffic stops. That issue has raised the specter of racial profiling even though race was not a factor in any of the cases decided Tuesday. In the majority opinion, written by the only black judge on the court, the jurists lamented the logistical difficulty of attempting to delve into an officer’s subjective motivations. In addition, while acknowledging the racial implications, the majority said there are other remedies, such as the constitutional tort the court recognized in Brown v. State of New York, 89 NY2d 172 (1996), that provide a more appropriate response to race-based searches. “We are not unmindful of studies … which show that certain racial and ethnic groups are disproportionately stopped by police officers, and that those stops do not end in the discovery of a higher proportion of contraband than in the cars of other groups,” Judge Smith wrote for the court. “The fact that such disparities exist is cause for both vigilance and concern about the protections given by the New York State Constitution. Discriminatory law enforcement has no place in our law.” Joining Judge Smith, a Democratic appointee of former Gov. Mario M. Cuomo, in the majority opinion were Judges Richard C. Wesley, Albert M. Rosenblatt and Victoria A. Graffeo — the three judges, all Republicans, appointed by New York Gov. George Pataki. Judge Howard A. Levine, a former District Attorney, dissented in an opinion joined by Chief Judge Judith S. Kaye and Judge Carmen Beauchamp Ciparick. While the judges engaged in a lively and scholarly debate over the implications of pretextual stops, the outcome largely came down to an elementary matter of practicality. The dissenters urged adoption of a “reasonable police officer” test to determine if an otherwise perfectly legitimate traffic stop was appropriate. But the majority found no way to make such a test workable, and observed that not a single state has embraced that approach. “How is a court to know which laws to enforce?” the majority asked. “We are simply not free to pick and choose which laws deserve our adherence. If a statute improperly impairs our constitutional liberties, whatever the course, there is a remedy.” Before the court were three cases where police allegedly used a traffic offense as an excuse to follow a hunch: � People v. Robinson, 141. This case arises out of Bronx, N.Y., where Frank Robinson was a passenger in a cab stopped for running a red light. The cab was stopped by members of a task force whose assignment was to follow taxicabs in an effort to prevent robberies. An officer shined his flashlight into the car and noticed that Robinson was wearing a bulletproof vest. A subsequent search yielded a handgun on the floor of the cab. Robinson was convicted. On appeal the Appellate Division, 1st Department, unanimously applied the Whren rationale to the search. The 1st Department said that while the Court of Appeals has expressed in dicta its uneasiness with pretextual search and seizure, it had never flatly condemned the practice. Therefore, the panel said, there was no basis for departing from Whren. Tuesday, the Court of Appeals affirmed. � People v. Reynolds, 142. The Rochester, N.Y., case arose when officers observed a prostitute getting into the suspect’s pickup truck. Authorities followed the vehicle and then stopped it when a computer check indicated that the registration was expired. Police let the prostitute go free, but after observing signs of drunkenness subjected Patrick Reynolds to a sobriety test. Reynolds was charged with driving while intoxicated, but Rochester City Court ruled the search illegal in a decision affirmed by Monroe County Court on appeal. County Court said the traffic stop was nothing more “than a pretext for conducting a criminal investigation,” and that while such a tactic is allowable under Whren, “a different, more stringent standard has long been employed in this state.” The Court of Appeals reversed. � People v. Glenn, 143. Here, Jerry Glenn was riding in a Manhattan cab when plainclothes officers saw the vehicle turn without signaling. Police pulled over the vehicle because they saw Glenn leaning forward and suspected a robbery was under way. Cocaine was found and he was charged and convicted of possession. On appeal, the 1st Department affirmed, basing its ruling on Robinson. The panel said that “since the validity of the stop is based on the objective circumstances and not the subjective intent of the police, it is irrelevant that the officers were motivated by their belief that a robbery was in progress.” The Court of Appeals affirmed. CRUX OF APPEALS The crux of the combined appeals was whether the state constitution’s ban on unreasonable searches prohibits pretextual stops that do not violate the identically worded search and seizure provision of the Fourth Amendment. Judge Smith, mindful that the court has on occasion found broader protections in the New York Constitution, said there is no basis for invoking state constitutionalism here. “Regulating the ability of the police to stop a vehicle when there is probable cause to believe that a traffic regulation has been violated does little to expand the rights of the accused,” Smith wrote. “Instead, it may lead to the harm of innocent citizens.” Gov. Pataki, early in his tenure, had criticized the Court of Appeals for issuing several rights-expanding decisions and suggested that the New York panel should offer criminals no more protections than required under the U.S. Constitution. Tuesday, while not commenting specifically on the decision, Pataki suggested that he is generally pleased with the way the court is deciding cases. “I think we have seen the court act in, not necessarily a way I agree with, but in a way that has been responsible,” the governor said. In the dissenting opinion, Judge Levine said Whren and the majority’s holding “inadequately protects a core value of [both the state and federal constitutions] in permitting arbitrary exercises of discretion on the part of police officers to conduct investigative stops of vehicles on the pretext of pursuing violations of the Vehicle and Traffic Law.” He said the Court of Appeals has, on at least six occasions, expressed its discomfort with and disapproval of pretextual police conduct. “Sadly, the pretext stop decisions in lower state and federal courts confirm that the traffic infraction probable cause standard has left the police with the ability to stop vehicles at will for illegitimate investigative purposes,” Levine wrote. The dissenters cited a pattern of cases where police have targeted suspects based on nothing more than a hunch and then found a traffic pretext to justify a stop. Among those cases were: one where a suspected drug courier was followed for nearly a mile and ultimately stopped because there was an air freshener hanging from the rearview mirror; another where police followed a vehicle because the driver seemed overly cautious and then stopped the car because it went four inches over the white line; and others where authorities used as their excuse to stop a vehicle the fact that a tail light was broken, that the driver failed to signal and that the motorist neglected to come to a full stop at a stop sign. “Moreover, as has been repeatedly documented, and as the majority acknowledges, drug courier interdiction through traffic infraction stops has a dramatically disproportionate impact on young African-American males,” Judge Levine wrote. “Yet both the majority and the Whren Court dismiss the relevance of such disparate treatment in the constitutional search and seizure context.” Appearing were: Abigail Everett of the Center for Appellate Litigation in Manhattan for the defense, and Bronx Assistant District Attorney Cheryl D. Harris for the prosecution in People v. Robinson; Monroe County Assistant District Attorney Stephen K. Lindley for the prosecution, and Thomas A. Corletta of Rochester for the defense in People v. Reynolds; and Manhattan Assistant District Attorney Eleanor J. Ostrow, and Andrew C. Fine of the Legal Aid Society in Manhattan in the Glenn matter. Mark R. Dwyer, chief of the appeals bureau for the Manhattan District Attorney, said the ruling is constitutionally sound, pragmatic and consistent with the national consensus. With Tuesday’s opinion, Arkansas and Washington remain the only states to have rejected the Whren formulation. “The court has joined the federal government and virtually every other jurisdiction in recognizing that objective standards are the workable test for whether the search and seizure principles in the Constitution have been properly enforced,” Dwyer said. “It allows police officers to know what to do. It allows judges to know what to do. And it resolves, in a way other than guesswork, whether evidence will be admissible or suppressed.” In the Bronx, Anthony J. Girese, counsel to the district attorney, also applauded the ruling. “An objective test is the federal test, it’s the right test, it is easier to apply from the police perspective and from the judges’ perspective,” Girese said. “It is interesting to note that New York state does not have a good faith exception, and accordingly to adopt what is in effect a bad faith exception would have skewed the law.” Corletta, defense counsel in Glenn, said the ruling “gives police a lot more latitude and a lot more power,” and reflects the recent trajectory of the Court of Appeals. “That they followed the Supreme Court just indicates that the court has a much different composition now than it did in the 1980s and early 1990s, when it deviated from the Supreme Court quite a bit,” Corletta said.

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