The People &c.,
The People &c.,
The People &c., Appellant,
Patrick J. Reynolds,
Jerry Glenn, a/k/a Jeffrey Respondent.
2001 NY Int. 143
The issue here is whether a police officer who has
probable cause to believe a driver has committed a traffic
infraction violates article I, § 12 of the New York State
Constitution when the officer, whose primary motivation is to
conduct another investigation, stops the vehicle. We conclude
that there is no violation, and we adopt Whren v United States
People v Robinson
On November 22, 1993, New York City police officers in
the Street Crime Unit, Mobile Taxi Homicide Task Force were on
night patrol in a marked police car in the Bronx. Their main
assignment was to follow taxicabs to make sure that no robberies
occurred. After observing a car speed through a red light, the
police activated their high intensity lights and pulled over what
they suspected was a livery cab. After stopping the cab, one
officer observed a passenger, the defendant, look back several
times. The officers testified that they had no intention of
giving the driver a summons but wanted to talk to him about
safety tips. The officers approached the vehicle with their
flashlights turned on and their guns holstered. One of the
officers shined his flashlight into the back of the vehicle,
where defendant was seated, and noticed that defendant was
wearing a bullet proof vest. After the officer ordered defendant
out of the taxicab, he observed a gun on the floor where
defendant had been seated. Defendant was arrested and charged
with criminal possession of a weapon and unlawfully wearing a
bullet proof vest. Defendant moved to suppress the vest and gun,
arguing that the officers used a traffic infraction as a pretext
to search the occupant of the taxicab. The Court denied the
motion, and defendant was convicted of both charges. He was
In affirming, the Appellate Division applied the Whren rationale (271 2 17 ). We affirm the unanimous order of the Appellate Division.
People v Reynolds
On March 6, 1999, shortly after midnight, a police officer, on routine motor patrol in the City of Rochester, saw a man he knew to be a prostitute enter defendant's truck. The officer followed the truck and ran a computer check on the license plate. Upon learning that the vehicle's registration had expired two months earlier, the officer stopped the vehicle.
The resulting investigation did not lead to any charges involving prostitution. Nevertheless, because the driver's eyes were bloodshot, his speech slurred and there was a strong odor of alcohol, police performed various field sobriety tests, with defendant failing most. Defendant was placed under arrest for driving while intoxicated. At the police station, tests indicated that defendant's blood alcohol level was .20%, double the legal limit of .10% (see, Vehicle & Traffic Law § 1192).
Defendant was charged with driving while intoxicated,
an unclassified misdemeanor, and operating an unregistered motor
vehicle, a traffic infraction. Defendant's motion to suppress
was granted by the Rochester City Court which dismissed all
charges. County Court affirmed the dismissal, holding that the
People v Glenn
On November 7, 1997, plainclothes police officers were on street crime patrol in an unmarked car in Manhattan. They observed a livery cab make a right hand turn without signaling. An officer noticed one of three passengers in the back seat lean forward. The police stopped the vehicle to investigate whether or not a robbery was in progress. A police officer subsequently found cocaine on the rear seat and, after he arrested defendant, found additional drugs on his person. Defendant was charged with criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree. He contended that the drugs should be suppressed, asserting that the traffic infraction was a pretext to investigate a robbery. After his motion to suppress was denied, he pleaded guilty to one count of criminal possession of a controlled substance and was sentenced, as a second felony offender, to 4 1/2 to 9 years in prison. Relying on Whren, the Appellate Division unanimously affirmed the conviction (279 2 422 ). We affirm the order of the Appellate Division.
The Supreme Court, in Whren v United States (517 US 806
In Whren, officers patrolling a known drug area of the District of Columbia became suspicious when several young persons seated in a truck with temporary license plates remained at a stop sign for an unusual period of time, and the driver was looking down into the lap of the passenger seated on his right. After the car made a right turn without signaling, the police stopped it, assertedly to warn the driver of traffic violations, and saw two plastic bags of what appeared to be crack cocaine in Whren's hands.
After arresting the occupants, the police found several quantities of drugs in the car. The petitioners were charged with violating federal drug laws. The petitioners moved to suppress the drugs, arguing that the stop was not based upon probable cause or even reasonable suspicion that they were engaged in illegal drug activity and that the police officer's assertion that he approached the car in order to give a warning was pretextual. The District Court denied suppression, and the Court of Appeals for the District of Columbia Circuit affirmed (53 F3d 371 ).
The Supreme Court held that the Fourth Amendment had
More than forty states and the District of Columbia
have adopted the objective standard approved by Whren or cited it
with approval (see, Appendix).
In each of the cases before us, defendant argues that the stop was pretextual and in violation of New York State Constitution, article I, § 12. By arguing that the stops were pretextual, defendants claim that although probable cause existed warranting a stop of the vehicle for a valid traffic infraction, the officer's primary motivation was to conduct some other investigation.
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 I, § 12 of the New York State Constitution. 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.
We have observed that because the search and seizure
language of the Fourth Amendment and of article I, § 12 are
identical, they generally confer similar rights (see, People v
Harris, , 77 NY2d 434, 437 ; People v P.J. Video, Inc., , 68 NY2d 296, 304 ).
Nevertheless, this Court has not
This Court has always evaluated the validity of a traffic stop based on probable cause that a driver has committed a traffic violation, without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop. Where the police have stopped a vehicle for a valid reason, we have upheld police conduct without regard to the reason for the stop (People v David L., 81 AD2d 893, revd on dissent below , 56 NY2d 698 , cert denied 459 US 866).
This Court has never held that a pretextual stop, as
opposed to subsequent police conduct, was violative of article I,
§ 12. The dissent does not disagree (Dissenting Opinion, at 15).
Although the Appellate Divisions have, on occasion, examined the
primary motivation of a police officer in evaluating a traffic
Defendants, however, point to several of our cases -- most notably People v Spencer (, 84 NY2d 749 ) -- and contend that we have previously indicated our disapproval of pretextual police conduct. Defendants' reliance on People v Spencer is misplaced. There, we held that the stop of the vehicle merely to request information from the driver concerning the whereabouts of a criminal suspect was an unreasonable seizure in violation of the Fourth Amendment. In that case, the defendant had not committed a traffic violation.
We noted that "police stops of automobiles in this
State are legal only pursuant to routine, nonpretextual traffic
checks to enforce traffic regulations or when there exists at
least a reasonable suspicion that the driver or occupants of the
vehicle have committed, are committing, or are about to commit a
crime" (id., at 753). However, we explained what we meant by
pretextual when we further noted that "there were no objective
safeguards circumscribing the exercise of police discretion" and
that if such stops "were permissible and motorists could be
pulled over at an individual police officer's discretion based
Moreover, in none of the cases in which we have extended the rights of New York State defendants beyond those of the Federal Constitution have we questioned a police officer's authority to act when there was probable cause to conclude that a law or regulation has been violated. None of the reasons for extending protections of our Constitution beyond those given by the Federal Constitution exist here. In this case, 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. Instead it may lead to the harm of innocent citizens. Thus, for example, in People v Reynolds, the stop of the automobile led to the arrest of a person driving under the influence of alcohol.
The real concern of those opposing pretextual stops is
that police officers will use their authority to stop persons on
a selective and arbitrary basis. Whren recognized that the
answer to such action is the Equal Protection Clause of the
Constitution. We are not unmindful of studies, some of which are
Indeed, in Brown v State of New York (89 2 172
), this Court recognized that in New York State, a
plaintiff has a cause of action for a violation of the Equal
and the Search and Seizure Clause of the State
Constitution. In upholding the right of African Americans to sue
for alleged violations of their right to equal protection and
freedom from unreasonable searches and seizures, when they were
These sections (Article I, §§ 11 and 12) establish a duty sufficient to support causes of action to secure the liberty interests guaranteed to individuals by the State Constitution independent of any common-law tort rule. Claimants alleged that the defendant's officers and employees deprived them of the right to be free from unlawful police conduct violating the Search and Seizure Clause and that they were treated discriminatorily in violation of the State Equal Protection Clause. The harm they assert was visited on them was well within the contemplation of the framers when these provisions were enacted for fewer matters have caused greater concern throughout history than intrusions on personal liberty arising from the abuse of police power. Manifestly, these sections were designed to prevent such abuses and protect those in claimants' position. A damage remedy in favor of those harmed by police abuses is appropriate and in furtherance of the purpose underlying the sections (89 2 at 191).
The alternatives to upholding a stop based solely upon reasonable cause to believe a traffic infraction has been committed put unacceptable restraints on law enforcement. This is so whether those restrictions are based upon the primary motivation of an officer or upon what a reasonable traffic police officer would have done under the circumstances. Rather than restrain the police in these instances, the police should be permitted to do what they are sworn to do -- uphold the law.
In none of the cases cited by defendants has this Court
penalized the police for enforcing the law. We should not do so
We turn now to the dissent. Our dissenting colleagues correctly recognize that any exercise of police power under the Fourth Amendment of the United States Constitution and our State constitutional corollary must be reasonable -- a seizure by the police may not be arbitrary. The dissent, however, treats arbitrariness in the context of a traffic stop as an added inquiry separate and distinct from probable cause. There is no valid basis for us to bifurcate these concepts.
Probable cause to believe that an individual has
violated a law, or regulation having the force of law, has been
equated with the sum of the requirements of the State and Federal
constitutions in this area. Only in the absence of established
probable cause has the United States Supreme Court and this Court
examined the arbitrariness of police conduct so as to require
that police activities be governed by objective standards that
restrict officers in looking for incriminating evidence (see,
Delaware v Prouse (440 US 648 ) supports this
rationale and emphasizes the distinction between police actions
based on the presence or absence of probable cause. There, the
United States Supreme Court invalidated random police stops
The other cases relied upon by the dissent are equally
inapposite. Each expresses constitutional disapproval of
arbitrary conduct in the context of administrative or inventory
searches, where probable cause is not in play (see, e.g., Florida
The dissenters concede that with "respect to
warrantless arrests for violations of the State's criminal laws
(rather than its traffic code), an individualized determination
of probable cause will generally provide an objective evidentiary
floor circumscribing police conduct" and thereby prevent the
arbitrary exercise of search and seizure power (Dissenting
Opinion 6). However, in the context of traffic code violations,
the dissent claims that "the existence of probable cause that the
infraction was committed is manifestly insufficient to control
arbitrary police conduct" (id.). The dissenters assert that
because motor vehicle travel is so much a part of our lives and
is minutely regulated, total compliance with the law is
impossible. We see no basis for this differentiation. While New
Yorkers may ubiquitously disobey parts of the Vehicle and Traffic
Law, that does not render its commands unenforceable. As noted
by the unanimous United States Supreme Court, "we are aware of no
principle that would allow us to decide at what point a code of
law becomes so expansive and so commonly violated that infraction
itself can no longer be the ordinary measure of the lawfulness of
Because the Vehicle and Traffic Law provides an
The dissent also raises the spectre of "repeatedly
documented" racial profiling in the search and seizure context.
There is no claim in any of the three cases before us that the
police officers engaged in racial profiling. But, if racial
profiling is the analytical pivot of our colleagues' dissent,
their remedy misses the mark. The dissenters' "reasonable police
officer" standard does little to combat or reduce the likelihood
of racially-motivated traffic stops, since, in their view, an
We conclude, for a number of reasons, that the "reasonable police officer" test should not be followed. The dissenters maintain that under the "reasonable police officer" test, prosecution of a traffic violation would be appropriate even if the stop were pretextual and the other evidence suppressed. They assert a dearth of cases in which pretextual stops reviewed in court decisions nationwide involved dismissal of the underlying traffic violations supporting the stops (see, Dissenting Opinion at 18).
The dissenters contend, however, that a stop of a
vehicle is arbitrary (i.e., unlawful) if a "reasonable police
officer" with traffic enforcement responsibilities would not have
made the stop (see, Dissenting Opinion, at 20). We do not see
how, in the context before us, a court may separate the fruits of
a stop (often a gun or drugs) from the supposed illegality of the
Finally, we note that no State court employs the
reasonable police officer test advocated by the dissenters
(see, Appendix). Moreover, even before the Supreme Court decided
Whren, most Federal Courts of Appeals had adopted its rationale.
In so doing, many had expressly considered and rejected the
"reasonable police officer" standard. Notably, in United States
v Scopo, the Second Circuit held that "the fact that an officer
may be engaged in an arrest which would not usually be effected
in the course of the officer's normal duties does not negate the
validity of the arrest" (19 F3d 777, 782 ).
The invention of the automobile has changed the fabric
of American life. While the vast majority of New Yorkers own or
drive vehicles, the frequency of their time on the road cannot
recast the functional parameters of the Fourth Amendment or
article 1, § 12. We agree with Whren that the reasonable officer
standard would result in inappropriate selective enforcement of
traffic laws. How is a court to know which laws to enforce?
This test has been rejected by all nine members of the United
States Supreme Court and is not utilized by any state in the
union. We are simply not free to pick and choose which laws
deserve our adherence. If a statute improperly impairs our
We are not confounded by the proposition that police officers must exercise their discretion on a daily basis. Nor are we surprised at the assertion that many New Yorkers often violate some provision of the Vehicle and Traffic Law. But we cannot equate the combination of police officer discretion and numerous traffic violations as arbitrary police conduct that the Supreme Court in Delaware v Prouse viewed as evil. That conduct violates the Fourth Amendment because it was "standardless and unconstrained" (id., at 661). In the cases before us, however, we confirm a standard that constrains police conduct -- probable cause under the Vehicle and Traffic Law and its related regulations that govern the safe use of our highways.
Accordingly, in People v Robinson and People v Glenn, the orders of the Appellate Division should be affirmed. In People v Reynolds, the order of the Monroe County Court should be reversed, defendant's motion to suppress denied, the accusatory instruments reinstated and the case remitted to Rochester City Court for further proceedings in accordance with this opinion.
State Courts Approving Whren or Approving Identical
Holland v State (696 So2d 757, 760 [Fla 1997] [accepting Whren as
authoritative interpretation of Florida Constitution's corollary
to Fourth Amendment]); State v Karg (2001 Del Super LEXIS 186
[Del Super Ct 2001] [explicitly holding Delaware Constitution
requires Whren objective test]); City of Fargo v Sivertson (571
NW2d 137, 141 [ND 1997]); State v Bolduc (722 A2d 44, 45 [Me
1998] [explicitly approving Whren's rejection of reasonable
officer test]); Commonwealth v Murdough (704 NE2d 1184, 1186
[Mass 1999] [adopting Whren objective standard under
Massachusetts Constitution]); Gama v State (920 P2d 1010, 1012-
1013 [Nev 1996] [citing Whren as basis to overrule prior cases
(see, e.g., Alejandre v State, 903 P2d 794 [Nev 1995]) that had
adopted a motivation-based standard under Nevada Constitution]);
State v McBreairty (697 A2d 495, 497 [NH 1997] [adopting Whren
objective test under New Hampshire Constitution]); State v
McClendon (517 2 128, 132 [NC 1999] [adopting Whren objective
standard under North Carolina Constitution]); State ex rel. Dept.
of Public Safety v 1985 Chevrolet Blazer (994 2 1183, 1186
[Okla Ct Civ App 1999]); State v Bjerke (697 A2d 1069, 1073 [RI
1997] [declining to depart under Rhode Island Constitution from
Whren objective standard]); State v Farabee (22 P3d 175, 181
[Mont 2000] [adopting Whren objective standard under Montana
LEVINE, J. (dissenting):
At issue here is the validity of pretextual traffic stops, that is, the seizure of a vehicle, ostensibly for an actual Vehicle and Traffic Law violation, but in reality effected only because of the officer's determination to conduct an otherwise unauthorized investigation of suspected criminal activity (see, l LaFave, Search and Seizure § 1.4[e], at 119-120).
In our view, Whren v United States (517 US 806) inadequately protects a core value of both the Fourth Amendment and this State's counterpart, New York Constitution, article I, section 12, 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. Therefore, Whren should not be followed as a matter of State constitutional law.
We believe it beyond debate that two equally fundamental
norms animated adoption of the Fourth Amendment and were embedded
in the search and seizure jurisprudence of the Supreme Court and
this Court. The first was that persons and their houses, papers
and effects were not to be subjected to unjustified searches and
seizures; hence, the requirement that "no warrants shall issue,
but upon probable cause" (US Const, Amend IV; NY Const, art I,
§ 12). The second was that the "right of the people" must also
be protected against the arbitrary exercise of the search and
In his 1974 Holmes lecture Perspectives on the Fourth Amendment (58 Minn L Rev 349, 410-412), Professor Anthony G. Amsterdam explained that the Framers' intent was to prohibit a two-fold indiscriminateness characteristic of the colonial general warrants and writs of assistance. Their evils were:
"[F]irst, * * * that they expose people and their possessions to interferences by government when there is no good reason to do so. The concern here is against unjustified searches and seizures * * *. [S]econd * * * is that indiscriminate searches and seizures are conducted at the discretion of executive officials, who may act despotically and capriciously in the exercise of the power to search and seize. This latter concern runs against arbitrary searches and seizures: it condemns the petty tyranny of unregulated rummagers" (id., at 411 [emphasis in the original]).
The modern Fourth Amendment jurisprudence of the Supreme
Court expressly recognizes the centrality of the second function
of the Fourth Amendment: to safeguard against arbitrarily
In Camara v Municipal Court (387 US 523, 528), the Court repeated: "[t]he basic purpose of [the Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials" (emphasis supplied). In Camara, the Court struck warrantless nonemergency administrative housing code inspections on the principal ground that "[t]he practical effect of this system is to leave the occupant subject to the discretion of the official in the field" (id., at 532 [emphasis supplied]).
In a series of decisions dealing with various configurations
of vehicle stops on the public highways, the Supreme Court
repeatedly emphasized the critical concern of whether the police
procedures at issue subjected motorists "to potentially unlimited
interference with their use of the highways, solely at the
discretion of * * * officers" (United States v Brignoni-Pontz,
422 US 873, 882 [emphasis supplied]). Thus, in Delaware v Prouse
This Court, in applying the identical language of the first paragraph of article I, section 12 of the State Constitution, has afforded citizens even greater protections in order to fulfill the underlying constitutional purpose of preventing not only unsupported searches and seizures, but also the arbitrary exercise of lawful authority to seize or search. As noted in a comprehensive study of State constitutional search and seizure jurisprudence, "New York decisions are guided by the general constitutional policy reflected by Article one, Section twelve, rather than the literal meaning of the constitutional language. That policy is to guarantee personal privacy, bodily integrity, property interests and freedom of movement against arbitrary and unjustified intrusions in the nature of searches and seizures by the government" (Pitler, Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals' Quest for Principled Decisionmaking, 62 Brook L Rev 1, 282-283 [emphasis supplied; footnote omitted]).
In the context of automobile searches and seizures, we have
held that "the State Constitution protects the privacy interests
The majority, following the Supreme Court's decision in
Whren, concludes that even an admittedly pretextual traffic stop
meets State constitutional standards if the officer had probable
cause to believe the traffic code had been violated. Concededly,
the first prophylactic purpose of both Federal and State
Constitutional search and seizure provisions -- to prevent
unjustified governmental invasions of personal liberty and
privacy -- is satisfied when a traffic stop is based upon
probable cause that an infraction was committed. Moreover, with
respect to warrantless arrests for violations of the State's
criminal laws (rather than its traffic code), an individualized
determination of probable cause will generally provide an
objective evidentiary floor circumscribing police conduct,
thereby satisfying the second purpose of the Fourth Amendment and
Yet in the context of pretextual traffic stops -- traffic
infraction stops that would not have been made but for the aim of
the police to accomplish an otherwise unlawful investigative
seizure or search -- the existence of probable cause that the
infraction was committed is manifestly insufficient to protect
against arbitrary police conduct. That is so for two reasons.
First, motor vehicle travel is one of the most ubiquitous
activities in which Americans engage outside the home.
it is, by an overwhelming margin, the most pervasively regulated
activity engaged in by Americans. Because virtually every aspect
of the operation and equipping of motor vehicles is codified, the
Whren petitioners' assertion -- that "[s]ince * * * the use of
automobiles is so heavily and minutely regulated that total
compliance with traffic and safety rules is nearly impossible, a
police officer will almost invariably be able to catch any given
motorist in a technical violation" -- was so self-evidently true
that it went unchallenged (Whren v United States,
The confluence of the foregoing factors -- the dependency of the vast majority of Americans upon private automobile transportation and the virtual impossibility of sustained total compliance with the traffic laws -- gives the police wide discretion to engage in investigative seizures, only superficially checked by the probable cause requirement for the traffic infraction that is the ostensible predicate for the stop. The Whren Court did not address the fact that arbitrary investigative seizures -- in violation of a core value of the Federal and State search and seizure constitutional order -- are permitted if pretextual stops can be justified solely on the basis of the existence of probable cause to issue a traffic infraction ticket.
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. Typically, the
stops are conducted as part of a drug interdiction program by a
law enforcement agency. The vehicle and occupants appear to fit
within a "drug courier" profile and the driver or occupants may
have engaged in some other innocuous behavior which arouses a
surmise of criminal conduct. The officer then follows the
vehicle until some traffic code violation is observed. At that
point, or even later, the vehicle is pulled over and the officer
That pattern was reflected in United States v Smith (80 F3d 215 [7th Cir]), in which the suspected drug courier was followed for 0.7 miles and then stopped for an air freshener hanging from the vehicle's rearview mirror. In United States v Miller (821 F2d 546 [11th Cir]), the officer's suspicions were aroused because the car was being driven "overly cautious"; ultimately, the stop was made for crossing over the white painted lane marker by four inches during an interval of 6.5 seconds. In United States v Hills (195 F3d 258 [6th Cir], cert denied 528 US 1176), a sheriff's deputy decided to follow a U-Haul truck driven completely lawfully "because it was a U-Haul, and because it had been his experience that U-Hauls carry narcotics," until, after almost a mile, a speeding violation was detected.
The Fifth Circuit, in United States v Roberson (6 F3d 1088, 1092, cert denied 510 US 1010, 1182, 1204), described the career of the arresting officer in that case as follows:
"It appears that in the past five years, Trooper Washington has arrested 250 people on drug charges, all after traffic stops. Of those, only four were warrant- authorized. Indeed, this court has become familiar with Trooper Washington's propensity for patroling the fourth amendment's outer frontier."
In Roberson, the trooper, pursuing a speeder, passed the defendant's van, which displayed out-of-state license plates and was occupied by four black men. Abandoning the pursuit of the other car, the trooper crested a hill, pulled onto the shoulder of the highway, doused his lights and activated his radar gun as the van approached. The van was found to be traveling only three miles per hour over the speed limit. However, in changing lanes to avoid the risk of contact with the trooper's car, the driver failed to signal, although the van was "apparently the only moving vehicle on that stretch of road" (id., at 1089). The trooper made the stop for that infraction. The drug possession conviction in Roberson was upheld on the ground that the officer had probable cause for the failure-to-signal infraction.
New York pretext stop cases reveal the same pattern. For example, in People v Laws (213 AD2d 226, lv denied , 85 NY2d 975), the defendant's vehicle was observed parked in front of a suspected "narcotics location," and was subsequently pulled over for a broken taillight (see also, People v Young, 241 AD2d 690 [driver stopped by plainclothes State police investigator for failure to signal] and People v Letts, 180 AD2d 931, appeal dismissed , 81 NY2d 833 [driver stopped by plainclothes State police investigator for failure to come to a complete stop at a stop sign]).
The impact of the Whren standard cannot be overstated:
"With automobiles serving as the common denominator in our society,
probable cause, reasonable suspicion, and other Fourth Amendment-type safeguards have, for all practical purposes, disappeared from large parts of our public and private lives. Thus no matter how incremental the legal changes brought about by each car case has been, the big picture has been altered , and dramatically so. And this affects the lives of all Americans -- not just those who are stopped frequently, but every person who could be" (Harris, Car Wars: The Fourth Amendment's Death on the Highway, supra, 66 George Wash L Rev, at 577-578).
Indeed, even one member of the unanimous Whren court has belatedly recognized that Whren's endowment of the police with unlimited power to conduct vehicle stops, when combined with the further authority to order all occupants to exit the vehicles, substantially impacts the personal liberty and privacy of myriad citizens, most of whom will be innocent of any criminal conduct:
"The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police" (Maryland v Wilson,
supra, 519 US, at 423 [Kennedy, J., dissenting]).
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 (see, Harris, Car Wars: The Fourth
Moreover, the problems of proof in establishing an equal
protection claim may be all but insurmountable. Putting aside
the unquestionably expensive and time-consuming process of
assembling statistical evidence, it is debatable whether the
requisite data would even be available (see, Beck and Daly,
While practical considerations may favor State-Federal
uniformity in setting constitutional standards governing law
enforcement practices, we have stressed in the past that this is
only one factor to be considered with others that may point in a
different direction. "When weighed against the ability to
protect fundamental constitutional rights, the practical need for
uniformity can seldom be a decisive factor" (People v P.J. Video,
, 68 NY2d 296, 304, cert denied 479 US 1091). We have not
hesitated to deviate from Federal Fourth Amendment jurisprudence
We conclude that various factors strongly weigh against adopting Whren and in favor of imposing a stricter standard as a matter of State constitutional law in cases involving pretextual traffic stops.
First, while we have not directly held that the fruits of a
pretextual stop should be suppressed, on no less than six
occasions, most of which involved automobile searches or
seizures, our Court "has voiced disapproval of, and appears to
have enunciated principles to address, pretextual police conduct"
Moreover, as the Whren decision acknowledges, the Supreme Court itself previously indicated in a number of cases that pretext could be a highly significant negative factor in various Fourth Amendment contexts (see, Florida v Wells, 495 US 1, 4; New York v Burger, 482 US 691, 716-717 n 27; Colorado v Bertine, 479 US 367, 372; Colorado v Bannister, 449 US 1, 4 n 4; Abel v United States, 362 US 217, 227).
Above all, however, Whren should not be followed because it
This criticism, in our view, misses the mark. The
petitioners in Whren claimed that the officers' seizure was
unreasonable because it was arbitrary, not because it was either
unjustified or improperly motivated. They suggested that the
determination whether the stop was in fact an arbitrary exercise
of the power to enforce the traffic laws should be subject to an
The Whren petitioners' standard is indistinguishable from the objective test in Terry v Ohio (392 US 1) for determining the reasonableness of an investigative stop and frisk, or the objective test for reasonableness of a law enforcement officer's exploratory manipulation of a bus passenger's luggage in an overhead rack in Bond v United States (529 US 334). Just as the ulterior motives of the police in Terry and Bond were not dispositive, those of the seizing officers in Whren would not be decisive under the test advanced by the petitioners in that case.
The Whren Court offered only two other reasons for rejecting
the test suggested by the petitioners. The first was that
"police enforcement practices, even if they could be practicably
assessed by a judge, vary from place to place and from time to
time. We cannot accept that the search and seizure protections
of the Fourth Amendment are so variable * * * and can be made to
turn upon such trivialities" (517 US, at 815). Under well-
established Federal and State search and seizure doctrine,
however, the validity of a search may indeed turn upon
differences in police practices from one jurisdiction to another.
Thus, as already discussed, whether a vehicle inventory search is
upheld may depend on the adoption by the local police agency of
rules limiting the discretion of the officer in conducting such
searches (see, People v Galak,
Whren also claimed in substance that accepting petitioners' position would place Judges in the role of deciding what traffic code provisions are to be enforced at all:
"But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement" (517 US, at 818).
Adoption of the standard urged by the petitioners in Whren would
do nothing of the sort. It does nothing more than set an
objective standard, the violation of which would deprive law
enforcement officers only of the use of evidence of crimes
unrelated to the traffic infraction obtained in investigative
stops effected through arbitrary enforcement of the traffic laws.
As to the infraction itself, as with criminal investigations, the
probable cause standard basically works adequately to satisfy
both of the dual purposes of constitutional search and seizure
law for officers solely pursuing violations while authentically
engaged in traffic code enforcement. In those situations,
prosecution of the underlying traffic infraction is not based
upon evidence obtained through exploitation of the initial stop,
The pretext stop cases also demonstrate that the existence of probable cause with respect to the traffic infraction is not sufficient to forestall arbitrary exploitation of the violation in order to conduct otherwise unjustified investigative stops. It is the failure of Whren even to address that issue that is the most cogent reason for not following it. It is not without significance that Whren has been the subject of a plethora of criticism in texts and articles, expressing concern that the decision marked the removal of the protection of the Fourth Amendment from the highways. Reading them, one would be hard put to agree with the Whren Court that if a heightened standard of scrutiny of pretextual stops were adopted, enforcement of the Fourth Amendment would be "made to turn upon * * * trivialities" (id., at 815), and that Whren itself was "surely" nothing more than a "run-of-the-mine case" (id., at 819). Citations to those critiques are set forth in an Appendix to this writing.
Next to be addressed on these appeals is the
standard we would adopt to determine whether the stops in these
cases were pretextual and, thus, in violation of defendants'
Defendants urge that we adopt a subjective test,
whether the "primary motivation" for the stop was to investigate
criminal activity rather than to prosecute the traffic offense
ostensibly justifying the seizure.
We would reject that test
in favor of a more objective standard, for several reasons.
First, courts and commentators have noted the difficulty, if not
futility, of basing the constitutional validity of searches or
seizures on judicial determinations of the subjective motivation
of police officers. As stated by Justice White, "sending state
and federal courts on an expedition into the minds of police
officers would produce a grave and fruitless misallocation of
judicial resources" (Massachusetts v Painten, 389 US 560, 565
(White, J., dissenting); see also, Amsterdam,
Thus, we prefer an objective standard similar to that
adopted by the Ninth and Eleventh Circuits before Whren and
urged by the petitioners in Whren itself.
That is, would a
In People v Robinson and People v Glenn, the courts below erred in applying the traffic violation/probable cause standard of Whren to uphold the seizures of evidence in those cases. In People v Reynolds, the courts below erred in applying essentially a primary motivation standard to suppress evidence acquired through the stop. Thus, we would reverse in all three cases and remit in each to the trial court to reopen the hearing and decide the suppression motion under the constitutionally appropriate standard.
Before concluding, we respond to the discussion of
this dissent in the majority writing. The majority contends
that we have "no valid basis * * * to bifurcate" examination of
probable cause to believe a traffic infraction occurred and of
the arbitrariness of a pretextual stop because "probable cause
The "basis" for our contrary position lies, first, in
the language of the Federal and State constitutional provisions.
As we have noted, even in the most presumptively valid exercise
of the search and seizure power -- under a search warrant --
probable cause to support that exercise is not enough. The
warrant must also contain restrictive language "particularly
describing" the persons, places and things to be seized or
searched. That clause would be excised under the majority's
thesis that the existence of probable cause satisfies all
constitutional requirements. Preeminent scholars cite that text
and the constitutional history to contradict the majority's
conclusion that probable cause equates with the constitutional
validity of a search or seizure: Thus, Professor Amsterdam
stated that "even when there is sufficient cause to intrude upon
an individual * * *, the framers decreed that it was
unreasonable * * * to subject his premises or possessions to
indiscriminate [i.e., arbitrary] seizure" (
Treating as a concession our statement that for
criminal law violations, the probable cause standard generally
will prevent arbitrary seizures, the majority argues that our
contrary conclusion respecting traffic stops lacks any basis
(__NY2d, at ___ [Slip Opn, at 16]). The distinction is based
not only on principle, but also on cold fact. As we have
documented, a persevering police officer, armed only with a copy
of the Vehicle and Traffic Law and bent on subjecting a vehicle
and its occupants to an unjustified investigative stop, will
ultimately be able to accomplish that objective virtually at
will. As the Appendix to this writing shows, the research of
numerous legal scholars confirms that reality. Candid officers,
aware of their power under a probable cause/traffic infraction
standard, freely admit to it (see, Harris,
The majority assures us, however, that such abuses can
be cured or mitigated by judicial control over the "scope,
duration and intensity of the seizure" and any subsequent search
(__ NY2d, at __ [Slip Opn, at 13]). Our case law permits the
stopping officer, among other things, to open the passenger
door; make outside visual inspections, including shining a
flashlight into the interior of the vehicle; order the driver
and all occupants out; and detain the vehicle and its occupants
for purposes of verification of license, registration and
The remainder of the majority's discussion of the dissenters' position here is devoted to a critique of the objective standard we would adopt for determining whether evidence seized following a pretextual traffic stop should be suppressed.
The majority's principal criticism of the reasonable police officer's standard we support raises the same spectre as the Supreme Court did in Whren, that the standard will lead to piecemeal judicial abrogation of enforcement of our State's traffic code. The majority does not persuasively address our earlier analysis explaining why a standard to deny police evidence seized in arbitrary investigative stops for traffic offenses will not preclude prosecution of such offenses.
But again, experience confirms the correctness of our
position. Before Whren, the holdings of Federal and State
courts covering 22 States, including California, Florida and New
York -- three of the four most populous -- consistently or for
We remain to reverse and remit for reopened hearings with instruction to apply the appropriate objective standard by the suppression court to the traffic stops in all three of the cases before us.
Abramovsky and Edelstein, Pretext Stops and Racial Profiling after Whren v United States: The New York and New Jersey Responses Compared, 63 Alb L Rev 725 2000)
Berner, First Monday -- Criminal Procedure, 33 Val U L Rev 23, 25 (1998)
Dobson, The Police, Pretextual Investigatory Activity, and the Fourth
Amendment: What Hath Whren Wrought?, 9 St
Thomas L Rev 707 (1997)
Donahue, "Could Have" "Would Have": What the Supreme Court Should Have Decided in Whren v United States, 34 Am Crim L Rev 1193 (1997)
Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 Geo Wash L Rev 556 1998)
Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J Crim L & C 554 (1997)
Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 Minn L Rev 265, 318 (1999)
Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 Tulsa L J 465 (1999)
1 La Fave, Search and Seizure, A Treatise on the Fourth Amendment § 1.4(e)
(3d ed 2002 Cum
Leary and Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 Temple L Rev 1007 (1996)
Levit, Pretextual Traffic Stops: United States v Whren and the Death of Terry v Ohio, 28 Loy U Chi L J 145 (1996)
Maclin, Race and the Fourth Amendment, 51 Vand L Rev 333 (1998)
Markus, Whren v United States: A Pretext to Subvert the Fourth Amendment, 14 Harv Blackletter L J 91 (1998)
Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling, 74 Tul L Rev 1409 (2000)
O'Neill, Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests, 69 U Colo L Rev 693 (1998)
Splansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup Ct Rev 271
Sturtz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L J 1, 67 n 229 (1997)
Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 NYU L Rev (1999)
Note, After Whren v United States: Applying the Equal Protection Clause to Racially Discriminatory Enforcement of the Law, 2 Mich L & Pol'y Rev 159 (1997)
Note, Challenging Selective Enforcement of Traffic Regulations After the Disharmonic Convergence: Whren v United States, United States v Armstrong, and the Evolution of Police Discretion, 76 Texas L Rev 1083 (1998)
Note, "DWB (Driving While Black)" and Equal Protection: The Realities of an Unconstitutional Police Practice, 6 J L & Policy 291 (1997)
Note, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v United States, 24 Am J Crim L 627 (1997)
Note, Making the Best of "Whren": The Problems with Pretextual Traffic Stops and the Need for Restraint, 50 Fla L Rev 385 (1998)
Note, Whren v United States: An Abrupt End to the Debate over Pretextual Stops, 49 Me L Rev 207 (1997)
Note, Whren v United States: The Constitutionality of Pretextual Stops, 58 La L Rev 369 (1997)
Note, Whren v United States and Pretextual Traffic Stops: The Supreme Court Declines to Plumb the Collective Conscience of the Police, 38 BCL Rev 737 (1997)
Comment, Eradicating Racial Stereotyping from Terry Stops: The Case for an Equal Protection Exclusionary Rule, 71 U Colo L Rev 255, 279 (2000)
1 Only Arkansas and Washington have rejected Whren's formulation. Both of those States would assess the reasonableness of a traffic stop based on the subjective motivations of the police (see, State v Sullivan, 11 SW3d 526, 528, rehg denied 16 SW3d 551 [Ark 2000], revd 532 US 769 2001] [per curiam]); State v Ladson, 979 P2d 833, 842-843 [Wash 1999]). In Sullivan, the Arkansas Supreme Court was not interpreting the Arkansas Constitution when it adopted the test of subjective intent. Rather, the Arkansas Supreme Court was interpreting the United States Constitution more broadly than the U.S. Supreme Court had in Whren. The U.S. Supreme Court reversed the Arkansas decision (see, Arkansas v Sullivan, 532 US 769 ).
The right of the people to be secure in their persons, papers, houses and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.
3 See, e.g., Abraham Abramovsky and Jonathan I. Edelstein Pretext Stops and Racial Profiling after Whren v United States: The New York and New Jersey Responses Compared (63 Alb. L. Rev. 725 ); David A. Harris, The Stories, the Statistics, and the Law: Driving While Black Matters 84 Minn. L. Rev. 265, 296 ); Phyllis W. Beck and Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling And Public Policy Concerns (72 Temp. L. Rev. 597 ).
4 Article I, § 11 of the State Constitution reads: [Equal protection of laws; discrimination in civil rights prohibited] No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.
5 Moreover, the dissenters' reference to the particularity requirement in search warrant cases is inapt. Even in warrantless search cases as, for example, in searches incident to arrest, there is no particularity requirement. In any event, we are not dealing here with search warrants or even with searches but with traffic stops based on particular violations of law established by probable cause.
6 Determining the scope of a suppression court's ruling often cannot easily be gleaned from appellate decisions - - reference to the record before the appellate court is often necessary. For example, in People v James (217 AD2d 969 ), the Appellate Division dismissed the entire indictment based upon a pretextual stop/primary motivation analysis (see, id., at 969-970; see also, Dissenting Opinion at 15). A review of the Appellate Division record and briefs in James indicates that the indictment charged the defendant with Vehicle and Traffic Law violations that the Appellate Division ultimately characterized as pretextual. It may well be that in many instances, a police officer did not issue a ticket for traffic violations after finding evidence of far more serious criminal activity. That consideration may be relevant to the credibility of the officer in justifying the stop.
7 See also, United States v Hassan El (5 F3d 726, 729 [4th Cir 1993] [declining to adopt a test that considers departures from routine police practices]); United States v Trigg (925 F2d 1064, 1065 [7th Cir 1991] [refusing to "consider the conformance of an arrest to usual police practices in determining the reasonableness of an arrest"]); United States v Cummins (920 F2d 498, 501 [8th Cir 1990] [rejecting the "reasonable police officer" standard]).
In addition, other Circuits had implicitly rejected the "reasonable police officer" standard (see, United States v Gallo, 927 F2d 815, 818-819 [5th Cir 1991]; cf. also, United States v Ferguson, 8 F3d 385, 391 [6th Cir 1993] [en banc] [applying a "would have" test, but nevertheless concluding that a "stop is reasonable if there was probable cause" and it is "irrelevant whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop"]). In United States v Harvey, the Sixth Circuit followed Ferguson even though the defendant argued that "no reasonable police officer would have stopped the car absent some other motive" (16 F3d 109, 111 ).
8 The arbitrariness of the Writs of Assistance was denounced in a famous prerevolutionary speech by Boston patriot James Otis, in that they placed the "liberty of every man in the hands of every petty officer" (quoted in Boyd v United States, 116 US 616, 625 and Payton v New York, 445 US 573, 583 n 21).
9 Harris, Car Wars: The Fourth Amendment's Death on the Highway (66 George Wash L Rev 556, 576 ) observed that "America is virtually saturated with vehicles, roads, and licensed drivers." Harris cites United States Commerce Department statistics that almost 100 million Americans drive daily to work in private vehicles; virtually nine out of ten Americans of driving age are licensed to drive, and by 1990 only 11.5% of American households did not own at least one vehicle (id., at 576-577 & nn 138-140, 148).
10 That standard has been applied by the lower courts in deciding pretextual stop cases (see, People v Washington, 238 AD2d 43, 50, lv denied , 91 NY2d 1014). In large part, however, objective criteria have been used to determine the officers' motivations (see, id.).
11 See, United States v Cannon, 29 F3d 472 [9th Cir]; United States v Smith (799 F2d 704 [11th Cir]). The Tenth Circuit in United States v Guzman (864 F2d 1512) had also adopted the reasonable police officer objective test. However, a divided Tenth Circuit en banc court in United States v Botero-Ospina(71 F3d 783, cert denied 518 US 1007) overruled Guzman and upheld pretextual traffic stops so long as the seizing officer had probable cause to believe a traffic infraction had been committed. Before the Whren decision, several State courts also employed this "reasonable officer" test as a matter of Federal constitutional law (see, e.g., Kehoe v State of Florida, 521 So2d 1094; Mings v State of Arkansas, 318 Ark 201, 210; State of Maine v Haskell, 645 A2d 619, 621; Alejandre v State of Nevada, 903 P2d 794; State of Washington v Chapin, 75 Wn App 460, 468, lv denied 125 Wash 2d 1024; Lemonja v Commonwealth of Virginia, 8 Va App 532, 538, cert denied 495 US 905; People v Guerrieri, 194 Ill App 3d 497, appeal denied 132 Ill 2d 549; see also, Simmons v Georgia, 223 Ga App 781, 782).
We do not quarrel with the majority's demonstration that,
after Whren, most State courts adopted its probable cause/traffic
infraction standard, or that, even before Whren, the prevailing
view among the Federal Circuits was to reject the "reasonable
officer" test in favor of the probable cause test ultimately
adopted in Whren. By no means was the view unanimous, however.
Even in those courts that rejected the "reasonable officer"
standard, Federal judges continued to recognize the arbitrary
deprivation of personal liberty that the probable cause standard
permits. In Botera-Ospina (71 F3d , at 795), cited in the
majority opinion at page 20, Judge Lucero, joined by Chief Judge
Seymour and Judge Henry, dissented, stating: "I do not question
the depth of the frustration which drives my colleagues in the
majority to abandon the reasonable officer standard * * *.
Nevertheless, their action will not stand the test of time, and
it does not pass constitutional scrutiny today." Similarly, in
United States v McCully (21 F3d 712, 714 [6th Cir], cert denied
513 US 886), Judge Jones, concurring, stated: "On the basis of
Ferguson [8 F3d 385 (cited in the majority opinion at 19-20 n
7)]), I must vote to affirm McCully's conviction. However, I
continue to believe that our decision in that case represents an
abdication of our duty to provide citizens the security to travel
without unreasonable police stops and searches, as guaranteed by
the Fourth Amendment."