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CONSTITUTIONAL LAW - NEW YORK STATE CONSTITUTION - N.Y. CONST. ART. I § 12 - SEARCH AND SEIZURE - PROBABLE CAUSE - EQUAL PROTECTION - FOURTH AMENDMENT - VEHICLE AND TRAFFIC LAW - TRAFFIC VIOLATION - PRETEXTUAL STOP

The decision to stop a vehicle is valid whenever a police officer has probable cause to believe that a traffic violation has occurred, regardless of the officer's ulterior motivations. Accordingly, defendants cannot challenge such searches and seizures on the grounds that the stop was pretextual.

SUMMARY

This decision consolidates three cases in which Defendants sought to suppress evidence seized during police searches conducted after allegedly pretextual traffic stops (during which an officer stops a vehicle for a minor traffic violation in order to perform an otherwise unlawful search or seizure):
  • In the first case, People v. Robinson, police officers stopped a cab after they observed it running a red light, allegedly to give the driver safety tips. However, when one of the officers noticed that Defendant passenger was wearing a bulletproof vest, officers ordered Defendant out of the car and found a gun where he was sitting. The officers arrested Defendant and charged him with criminal possession of a weapon and unlawfully wearing a bulletproof vest.
  • In People v. Reynolds, while following a vehicle on a solicitation suspicion, a police officer ran a computer check of the vehicle's license plate and stopped the truck for having an expired registration. The officer then arrested Defendant for driving while intoxicated and operating an unregistered motor vehicle.
  • In People v. Glenn, police noticed a cab turn without signaling and saw one of the backseat passengers leaning forward. The officers stopped the cab on the suspicion that a robbery was in progress. Thereupon, they found drugs on the rear seat and in Defendant's possession. Defendant was arrested and charged with federal drug violations.
Defendants in all three cases sought to suppress evidence based on the protections against unreasonable searches and seizures provided in Article I § 12 of the New York State Constitution. They argued that the traffic stops were pretextual, and that the officers primarily and improperly stopped the cars to investigate other suspicions.

The Court, in resolving all three cases, held that when a police officer has a valid reason to stop a vehicle based on a perceived traffic violation, the stop is lawful regardless of any secondary intent. Furthermore, a defendant cannot challenge searches and seizures made during the stop based on the grounds that the stop was pretextual. In its decision, the Court expressly adopted the standard of Whren v. United States, 517 U.S. 806 (1996), as a matter of New York state law. In Whren, the U.S. Supreme Court unanimously held that a vehicle stop is reasonable when police have probable cause to believe that a vehicle or traffic violation has occurred. In adopting Whren, the Court of Appeals found that ulterior motives are irrelevant when an actual traffic violation has occurred, and that challenges to the validity of a subsequent search or seizure will not turn on whether the reasonable stop was pretextual. The Court did discuss equal protection concerns, stating that this case "addresses only the initial police action upon which the vehicular stop was predicated. The scope, duration and intensity of the seizure, as well as any search made by the police subsequent to that stop, remain subject to the strictures of Art. I § 12 of the New York State Constitution and to judicial review." In its holding, the Court expressly rejected both the "primary motivation" test and "reasonable police officer" test.

The dissent argued that because driving is a ubiquitous activity, and because "total compliance with traffic and safety laws is nearly impossible," the majority's decision sweeps too broadly and allows officers to conduct searches and seizures in a manner that violates the Fourth Amendment of the United States Constitution.

ISSUE & DISPOSITION

Issue(s)

Whether a police officer who stops a vehicle with probable cause to believe that the driver committed a traffic violation violates Article I § 12 of the New York State Constitution because the officer's primary motivation was to search the vehicle or to conduct another unrelated investigation.

Disposition

No. The decision to stop a vehicle is reasonable whenever a police officer has probable cause to believe that a traffic violation occurred, regardless of any ulterior motivations. Accordingly, defendants cannot challenge such searches and seizures on the grounds that the stop was pretextual. The Court adopts Whren v. United States, 517 U.S. 806 (1996), as a matter of New York state law. .

AUTHORITIES CITED

Cases Cited by the Court
Other Sources Cited by the Court
  • U.S. Const. amend. IV. (Search & Seizure)
  • U.S. Const. amend XIV. (Equal Protection Clause).
  • N.Y. Const. art. I § 12.
  • Veh.& Traf. Law § 1101.
  • 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 (2000).
  • David A. Harris, The Stories, the Statistics, and the Law: "Driving While Black" Matters, 84 Minn. L. Rev. 265, 296 (1999).
  • Hon . Phyllis W. Beck and Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling And Public Policy Concerns, 72 Temp. L. Rev. 597 (1999).
  • People v. Marsh, 20 N.Y.2d 98 (N.Y. 1967)
  • People v. Ynoa, 223 A.D.2d 975 (N.Y. App. Div. 1996)
  • People v. James, 217 A.D.2d 969 (N.Y. App. Div. 1995)
  • People v. Vasquez, 173 A.D.2d 580 (N.Y. App. Div. 1991)
  • People v. Watson, 157 A.D.2d 476 (N.Y. App. Div. 1990)
  • People v. Flanigan, 56 A.D.2d 658 (N.Y. App. Div. 1977)
  • State v. Ladson, 979 P.2d 833, 842-43 (Wash. 1999)
  • David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271 (1997).
  • Robert M. 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 (1996).

COMMENTARY

State of the Law Before Robinson

Article I § 12 of the New York State Constitution determines the constitutional validity of a traffic stop. Generally, courts determine the validity of traffic stops based on whether the police officer had the requisite level of probable cause to deem that a driver committed a traffic violation. Courts do not normally consider the officer's motive nor do they attempt to determine whether a reasonable officer would have effectuated the same stop. See People v. David L., 81 A.D.2d 893 (N.Y. App .Div 1981).

Nevertheless, a number of New York opinions have expressed concern about pretextual police conduct. For example, the Court in People v. Spencer, 84 N.Y.2d 749 (N.Y. 1995), held that it was illegal for an officer to stop a motorist who did not commit a traffic violation in order to ascertain certain information from the driver. The Court found the search to be invalid because the officer did not have an objective standard, such as the Vehicle & Traffic Law, to judge whether he should stop the vehicle. The Appellate Division has also rebuked pretextual traffic stops. In People v. Flanigan, 56 A.D.2d 658 (1977), the Second Department held that "heading off" the defendant's car with an unmarked police car in order to ticket him for a minor double-parking violation was an obvious pretext to search his car for drugs, since the defendant was observed in an area with a high volume of drug, stolen car, and stolen property arrests. In fact, all four Departments had expressed distrust of pretextual traffic stops prior to the Whren decision. People v. Ynoa, 223 A.D.2d 975 (N.Y. App. Div. 1996)(Third Dept.); People v. James, 217 A.D.2d 969 (N.Y. App. Div. 1995)(Fourth Dept); People v. Vasquez, 173 A.D.2d 580 (N.Y. App. Div. 1991)(Second Dept.); People v. Watson, 157 A.D.2d 476 (N.Y. App. Div. 1990)(First Dept.).

This disfavor of pretextual stops arises from the concern that police officers will selectively and arbitrarily stop certain motorists based on their racial or ethnic identities. In order to calm these concerns, courts have allowed officers to use the general standard described above in order to determine when to conduct a valid stop, while simultaneously encouraging defendants who felt unfairly singled out to seek recourse under the U.S. Constitution's Equal Protection Clause. Prior to Whren, the New York Court of Appeals held, in Brown v. State of New York, 89 N.Y.2d 172 (N.Y. 1996), that in such circumstances defendants have a cause of action under the New York Constitution's Equal Protection Clause and Search and Seizure Clause. Likewise, after Whren the Court in Robinson held that the "scope, duration, and intensity of the seizure, as well as any police search made subsequent to the stop, remain subject to the strictures of Article I § 12 of the New York State Constitution and to judicial review." People v. Robinson, 2001 N.Y. Int. 0143 (Dec. 18, 2001) (citing People v. Troiano, 35 N.Y.2d 476 (N.Y. 1974) and People v. Marsh, 20 N.Y.2d 98 (N.Y. 1967)).

Effect of Robinson on Current Law

The Court in People v. Robinson found that commission of a traffic violation is an objective, and therefore valid, reason for police to stop a vehicle. The subjective motivation of the police officers in making the stop is not an issue in this test since objective criteria exist for the initial stop. Therefore, if the police stop a vehicle based on the objective criteria provided by the Vehicle & Traffic Law, any further violations discovered because of that initial stop cannot be challenged based on the alleged pretextual nature of the traffic stop.

The Court explicitly held that the Supreme Court's standard outlined in Whren concerning pretextual police traffic stops applies in New York State as well. This means that when a police officer effectuates a routine stop based on a traffic violation, however minor, and that stop leads to the discovery of another violation, whether or not the second violation relates to the reason for the initial stop, the arrest for the second violation remains valid. In sum, if a police officer has probable cause for the initial stop, the defendant cannot challange an otherwise constitutionally valid subsequent search and seizure based on the alleged pretextual nature of the traffic stop.

In Whren, the Supreme Court held that such a stop did not violate the Fourth Amendment of the U.S. Constitution. In Robinson, the New York Court of Appeals held that these pretextual stops were also permissible under Article 1 § 12 of the New York Constitution (which is identical to the Fourth Amendment of the U.S. Constitution, and protects and confers generally the same rights). Before Robinson, the Court had not addressed the effect of Whren on the activities of New York police officers. In explaining its decision to adopt Whren, the Court emphasized that it does not have a history of providing New York defendants with more extensive rights than those provided in the U.S. Constitution; and it declined to do so here. The Court also reasoned that this holding would foster uniformity in constitutional standards for law enforcement practices.

Unanswered Questions

The majority addressed the issue of racial profiling, noting that it was a "cause for both vigilance and concern," but did not make the matter a focus of the decision. As the dissent pointed out, however, minor and routine traffic violations occur frequently, and it would be impossible for a police officer to stop every violator that he or she observes. The majority contends that the objective test of a traffic violation is sufficient justification for stopping a vehicle because subjective intent is not involved. Yet, because police officers cannot stop everyone who violates a traffic law, subjective intent is arguably always involved. Additionally, there is evidence available of racial profiling in the choices that police officers make regarding the enforcement of traffic violations (as the dissent noted). The Court's concern over racial profiling and its endorsement of the Vehicle and Traffic Law's "objective standard" thus leaves open the question of how to reconcile the two.

Another related question is whether the application of the Whren standard will "allow the police to stop vehicles in almost countless circumstances" (dissent), due to the ubiquity of vehicle traffic in New York and the frequency of traffic violations. Does this decision give the police an almost unfettered ability to stop any person at any time? It is rare that a person always follows every traffic rule, and if a police officer is patient, the officer could eventually find a reason to pull over almost anyone he or she wishes.

Survey of the Law in Other Jurisdictions

The U.S. Supreme Court in Whren v. United States, 517 U.S. 806 (1996) held that a seizure fails to violate the Fourth Amendment where a police officer has probable cause to stop a motorist for a traffic violation, even though the primary reason for the stop was so the officer could investigate other suspected criminal activity. Prior to this decision, most Federal Courts had already adopted this position. United States v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994). Only a few Circuits applied a more stringent test. For example, although the Tenth Circuit initially adopted the "reasonable police officer" standard, it subsequently reversed itself and embraced the Whren rationale before the Supreme Court decided Whren. See United States v. Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).

Following the Supreme Court's decision in Whren few states have offered their citizens additional protections beyond those set forth by the Supreme Court. The only state high court to reject Whren outright is the Washington State Supreme Court. In State v. Ladson, 979 P.2d 833, 842-43 (Wash. 1999), that court refused to adopt Whren and held that pretextual stops violate Article I § 7 of the Washington State Constitution. Arkansas has also interpretted the Constitution more broadly than Whren, in State v. Sullivan, 11 S.W.3d 526, 528 (Ark. 2000). Both states instead gauge the reasonableness of a traffic stop by the subjective motivations of the police.

The appendix to the Robinson opinion provides an extensive list of cases in which courts have endorsed the Whren rationale.

Prepared by:

    Steve Pilnyak '03
    Christopher Scarff '03
    Maura Wilson '03