PEOPLE v. ROBINSON
97 N.Y.2d 341 (2001)
767 N.E.2d 638
741 N.Y.S.2d 147
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK ROBINSON, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. PATRICK J. REYNOLDS, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERRY GLENN, Also Known as JEFFREY WILLIAMSON, Appellant.
Court of Appeals of the State of New York.
Decided December 18, 2001.
Harrington & Mahoney, Buffalo ( Mark J. Mahoney of counsel), for New York State Defenders Association, amicus curiae in the first, second and third above-entitled actions.
Judges WESLEY, ROSENBLATT and GRAFFEO concur with Judge SMITH; Judge LEVINE dissents and votes to reverse and remit to Supreme Court in a separate opinion in which Chief Judge KAYE and Judge CIPARICK concur.
OPINION OF THE COURT
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
In affirming, the Appellate Division applied the Whren rationale (
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 and 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 traffic violation was merely a pretext and the officer's primary motivation was to investigate prostitution. We reverse.
People v Glenn
On November 7, 1997, plainclothes police officers were on street crime patrol in an unmarked car in Manhattan. They
The Supreme Court, in Whren v United States (
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 (
The Supreme Court held that the Fourth Amendment had not been violated because "[a]s a general matter, the decision
More than 40 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.
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.,
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 opn at 367-368). Although the Appellate Divisions have, on occasion, examined the primary motivation of a police officer in evaluating a traffic stop, all seven of the Judges on this Court acknowledge the "difficulty, if not futility, of basing the constitutional validity of searches or seizures on judicial determinations of the subjective motivation of police officers" (dissenting opn at 371). Thus, we are unanimous in our view that the primary motivation test is not, and should not be, part of our State constitutional jurisprudence.
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 in fact be pulled over at an individual police officer's discretion based upon the mere right to request information, a pandora's box of pretextual police stops would be opened" (id., at 758, 759). Central to Spencer's holding was the absence of an objective standard for stopping a vehicle. Thus, a police officer could contrive a reason to stop a vehicle merely to make an inquiry. However, an objective standard is present here—the Vehicle and Traffic Law.
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
Indeed, in Brown v State of New York (
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 here. To be sure, the story does not end when the police stop a vehicle for a traffic infraction. Our holding in 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 article I, § 12, and judicial review (People v Troiano,
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 have 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, e.g., Florida v Wells,
Delaware v Prouse (
The other cases relied upon by the dissent are equally inapposite. Each expresses constitutional disapproval of
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 opn at 363). 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 protect against 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 enforcement" (Whren, supra, 517 US, at 818).
Because the Vehicle and Traffic Law provides an objective grid upon which to measure probable cause, a stop based on that standard is not arbitrary in the context of constitutional search and seizure jurisprudence. Contrary to the dissent's view, probable cause stops are not based on the discretion of police officers. They are based on violations of law. An officer may choose to stop someone for a "minor" violation after considering a number of factors, including traffic and weather conditions, but the officer's authority to stop a vehicle is circumscribed by the requirement of a violation of a duly enacted law. In other words, it is the violation of a statute that both triggers the officer's authority to make the stop and limits the officer's discretion. We agree with Whren that the test used
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 officer's primary motivation is irrelevant (see, dissenting opn at 368-369).
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 opn at 374).
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 opn, at 371-372). 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 stop itself. It would seem that if the stop is arbitrary and, therefore, unlawful, it must be so for all purposes. In the name of protecting the rights of New Yorkers, the dissenters' result would be
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" (
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 I, § 12. We agree with Whren that the reasonable officer standard would result in inappropriate selective enforcement
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 Police Conduct
Holland v State (
CITES WHREN WITH APPROVAL
State v Ossana (
, 461, 199 Ariz. 459 , 1260 ); People v Valenzuela ( 18 P.3d 1258 , 1207, 74 Cal.App.4th 1202 , 711 [Ct App 1999]); People v Ingram ( 88 Cal.Rptr.2d 707 , 603 [Colo 1999] [en banc]); Karamychev v District of Columbia ( 984 P.2d 597 , 813 n 9 [DC 2001]); People v Rucker ( 772 A.2d 806 , 224, 294 Ill.App.3d 218 , 1208 ); State v Predka ( 689 N.E.2d 1203 , 205-206 [Iowa 1996]); State v Hardyway ( 555 N.W.2d 202 , 456, 264 Kan. 451 , 622 ); Wilson v Commonwealth ( 958 P.2d 618 , 749 [Ky 2001]); State v Waters ( 37 S.W.3d 745 , 1056 [La 2001]); Wilkes v State (364 Md. 554, 572, 780 So.2d 1053 , 430-431 ); People v Kazmierczak ( 774 A.2d 420 , 419 n 8, 461 Mich. 411 , 672 n 8 ); State v Battleson ( 605 N.W.2d 667 , 71 [Minn Ct App 1997]); Guerrero v State ( 567 N.W.2d 69 , 943 [Miss Ct App 1999]); State v Lane ( 746 So.2d 940 , 723 [Mo 1997]); State v Martinez ( 937 S.W.2d 721 , 409, 123 N.M. 405 , 1204 ); Commonwealth v Hoak ( 940 P.2d 1200 , 1268 [Pa Super Ct 1997], affd by an evenly divided court 700 A.2d 1263 , 557 Pa. 496 ); State v Trudeau (165 Vt. 355, 359 n 3, 734 A.2d 1275 , 728 n 3 ); State v Rutzinski (241 Wis. 729, 736, 683 A.2d 725 , 520  [adopting Whren objective standard under Wisconsin Constitution]). 623 N.W.2d 516
Beauvois v State (
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, 1 LaFave, Search and Seizure § 1.4 [e], at 119-120 [3d ed]).
In our view, Whren v United States (
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 seizure power—most concretely embodied in the mandate that a warrant not only be supported
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:
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 exercised personal and property intrusions. Thus, in Wolf v Colorado (
In Camara v Municipal Ct. (
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-Ponce,
This Court, in applying the identical language of the first paragraph of article I, § 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; footnotes omitted]).
In the context of automobile searches and seizures, we have held that "the State Constitution protects the privacy interests of the people of our State * * * against the unfettered discretion of government officials to search or seize" (People v Belton,
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 article I, § 12—the prevention of arbitrary exercises of governmental authority to search or seize.
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.
The confluence of the foregoing factors—the dependency of the vast majority of Americans upon private automobile
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 proceeds with the investigation. All occupants may be directed to exit the vehicle (see, Maryland v Wilson,
That pattern was reflected in United States v Smith (
In Roberson, the trooper, pursuing a speeder, passed the defendants' van, which displayed out-of-state license plates and was occupied by four African Americans. 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 (
The impact of the Whren standard cannot be overstated:
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 Amendment's Death on the Highway, supra; 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; Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J Crim L & Criminology 544; Maclin, Race and the Fourth Amendment, 51 Vand L Rev 333; Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup Ct Rev 271). Yet both the majority and the Whren Court dismiss the relevance of such disparate treatment in the constitutional search and seizure context. They instead suggest that the remedy lies in invoking the Federal Constitution's Equal Protection Clause. The same studies that recognize the existence of a disparate racial impact, however, also demonstrate the inadequacy of the Equal Protection Clause as a remedy for those abuses. A "racial profiling claim under the Equal Protection Clause is difficult, if not impossible, to prove" (Beck and Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling and Public Policy Concerns, 72 Temp L Rev 597, 612 ). The Equal Protection Clause prohibits race-based selective enforcement of the law only when such enforcement "`had a discriminatory effect and * * * was motivated by a discriminatory purpose'" (United States v Armstrong,
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,
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,
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,
Above all, however, Whren should not be followed because it does not demonstrate that its traffic infraction probable cause standard adequately protects the constitutional rights of motorists on the highways from arbitrarily exercised police powers to seize and search. Most of the Whren decision is devoted to showing why the Court rejected the standard advocated by the petitioners in that case. They had urged the adoption of an objective standard by which to judge police exploitation of arbitrary traffic code enforcement to conduct investigative stops: whether a reasonable police officer, under the circumstances, would have made the stop for the reasons given. Despite the objective nature of that test, the Supreme Court's primary
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 objective test, that is, by consideration of the stop's deviation from the norm.
The Whren petitioners' standard is indistinguishable from the objective test in Terry v Ohio (
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, supra,
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, but upon observations made before the stop. We find it noteworthy that of the manifold pretextual stops reviewed in the decisions in Federal and state courts nationwide, none directly addressed suppression of the prosecution of the traffic violation that supported the 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' State constitutional rights to be free from arbitrary invasions of their liberty and privacy.
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.
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.
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 "[p]robable cause * * * has been equated with the sum of the requirements of the State and Federal Constitutions in this area" (majority opn at 353). Thus, to the majority, the existence of probable cause to stop for a traffic code violation would preclude any inquiry into
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" (supra, 58 Minn L Rev, at 411 [emphasis supplied]; see, 1 LaFave, Search and Seizure § 1.4 [e], at 119-122, and 2002 Pocket Part, at 16, supra).
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 (majority opn at 355). The distinction is based on both principle and 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, supra, 66 Geo Wash L Rev, at 567-568).
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 (majority opn at 353). 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 insurance information
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 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 a period of time held that a probable cause/traffic infraction standard was insufficient, and applied a stricter test for adjudging pretextual stops.
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.
In People v Robinson and People v Glenn: Order affirmed.
Judges WESLEY, ROSENBLATT and GRAFFEO concur with Judge SMITH; Judge LEVINE dissents and votes to reverse and remit
In People v Reynolds: Order 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 the opinion herein.
Abramovsky, Criminal Law and Procedure, Will the New York Court of Appeals Surrender to "Whren"?, NYLJ, July 19, 2000, at 3, col 1
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)
Donahoe, "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 & Criminology 544 (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 LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 1.4 (e) (3d ed and 2002 Pocket Part)
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 Temp 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)
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)
Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup Ct Rev 271
Stuntz, 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 956 (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 Tex L Rev 1083 (1998)
Note, "DWB (Driving While Black)" and Equal Protection: The Realities of an Unconstitutional Police Practice, 6 J L & Pol'y 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 Collective Conscience of Police, 38 BC L 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)
Comment, Without a Warrant, Probable Cause, or Reasonable
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