The Supreme Court heard arguments on Monday in the case of Milavetz, Gallop & Milavetz v. the United States. The specifics of the case were discussed in a series of articles in the New York Law Journal Monday and yesterday by Marcia Coyle.

The Milavetz & Gallop firm, based outside Minneapolis, Minnesota, along with some of their clients, challenged certain provisions of the amendments to the Bankruptcy Code of 2005, called BAPCPA (Bankruptcy Abuse and Prevention Consumer [credit card company, actually] Act) on First Amendment grounds, only one month after it became law.

The Milavetz firm most prominently challenged provisions of the Code which demands that they place a notice on all Bankruptcy related advertising that indicates that the firm is a “debt relief agency,” thus equating law firms with the fly-by-night debt counselors you hear about on the radio. The firm argued that this is insulting to lawyers and an unconstitutional regulation of true, non-misleading speech.

They also challenged the Code’s new requirement that attorneys representing clients contemplating bankruptcy may not advise those  individuals, if they are below a certain income level, to take on any new debt. Milavetz asserts that this rule unconstitutionally interferes with the lawyer/client relationship. It also prevents attorneys from advising clients to consolidate debt by taking out a new loan, a strategy which may help keep some people out of bankruptcy altogether.

Milavetz even said that if the high court doesn’t come down on their side, holding the challenged provisions of the Bankruptcy Code to be unconstitutional, “we will handle no more consumer bankruptcy cases…”

Hopefully the Supreme Court will indeed find these overeager provisions of the 2005 Bankruptcy Code amendments unconstitutional.

If you need help with a Bankruptcy, Foreclosure, and Mortgage Modification matter in the New York area, please give us  a call at 800-344-5431 or you can click here to contact us by e-mail.

Picture courtesy of  Milavetz, Gallop & Milavetz, P.A.

In the United States today there are more than more than twenty-two hundred (2,200) juveniles who are incarcerated as adults. These juveniles are serving life sentences without the ability to obtain parole (to be released from jail prior to the end of their sentence). Among the twenty-two hundred (2,200) juveniles, there are some prisoners who are as young as thirteen (13) years old.

In 2005, the United States Supreme Court, in a close decision (5-4), held that an individual who committed a crime when he or she was younger than eighteen (18) years of age cannot be executed. The court held this was unconstitutional.

On Monday, November 16, 2009, attorneys representing two minors sentenced in the State of Florida argued before the United States Supreme Court that the theory behind the prior death penalty decision in 2005 should also be extended to minors receiving life sentences.

The theory behind the death penalty decision of the United States Supreme Court was based on two key factors: (1) minors are not as culpable for this crimes as adults and they can be reformed and (2) The Supreme Court held that it would be “cruel and unusual punishment” to execute minors. Cruel and unusual punishment is banned by the 8th Amendment to the United States Constitution.

Terrence Graham and another individual robbed a restaurant. He is in jail for this crime. In 2004, when he was only seventeen (17) years of age, he was sentenced to life in prison without parole. This action was taken because he violated the terms of his probation by committing another robbery at gun point.

Joseph Sullivan, committed a burglary when he was thirteen years old. He thereafter was convicted of sexual battery against a seventy-two year old woman. Joseph Sullivan, a mentally disabled individual, has been convicted of several serious felonies and seventeen criminal offenses overall.

In the aforementioned two cases, both of the juveniles were given life sentences for crimes that did not involve homicides. It should be noted that more than 135 countries throughout the world do not allow life sentences for juveniles.

The United Nations Treaty prevents the imprisonment of children without the possibility of parole. All of the countries who are members of the United Nations with the exception of the United States and lonely Samoa have executed this treaty.

Is our society mature and sophisticated enough to deal with errant juveniles without warehousing them in prisons for their entire life?

-Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of acslaw.org

arrest car police officer handcuffs

Have you ever failed to pay all or part of a ticket, and then unknowingly had your license suspended, and then continued to drive using that suspended license?[1] Have you ever hung out in a club or bar where people were using drugs?[2] Do you know anyone who has failed to keep their property clean?[3] If so, it is possible for the police to arrest you and, until recently in New York City,[4] strip search you!

The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor.[5] The three crimes listed above (and many others) qualify as misdemeanors, and so if the police observe you committing one of them, they are permitted to, but are not obligated to, arrest you.

The New York City Department of Corrections made it a practice to strip searchall misdemeanants charged with drug or weapons crimes who were detained upon arrest as well. The City claimed that “like felony detainees, [these misdemeanants] could never legitimately claim that they had a ‘right’ not to be strip searched.”[6] 

Unfortunately, there are major problems with the City’s logic. The 4th Amendment to the U.S. Constitution, as applied against the States by the 14th Amendment, prohibits the government from conducting “unreasonable” searches and seizures. Claiming that the Dept. of Corrections violated this Constitutional provision, a group of arrestees who had been strip searched at Riker’s Island without any individualized inquiry as to whether they were likely to be hiding weapons or contraband, sued the City of New York for violation their Constitutional right not to be searched “unreasonably.”[7]

Mark Hamblett, in the New York Law Journal, pointed out Southern District Judge Gerard Lynch’s recent finding in this case that the city is liable for violating the Constitutional right of those arrestees.[8]He pointed out that the Second Circuit Court of Appeals recently held that “it is ‘long-standing precedent’ that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized ‘reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’”[9]

Judge Lynch reaffirmed the notion that the Constitutional default setting of the police should be “Do Not Search” mode. Deviations from that require some specific, individualized justification. The police must have some specific reasons to justify a “reasonable suspicion” that a detainee may be in possession of either contraband or a weapon that poses a danger to the police.

The bottom line is that it is better not to commit any misdemeanors to begin with. But if you are arrested for one, the police need some specific facts on which to base a suspicion that you in particular have contraband or weapons (that would be revealed by a strip search) in order to conduct a strip search. If the police find anything illegal during a strip search, and the search was conducted without “reasonable suspicion,” you may be able to have that evidence suppressed. So be sure to hire a good criminal defense attorney to help you with this or any other criminal defense matter.


[1]NY Veh. & Traf. § 511(1) (West 2009)

[2] NY Penal § 240.36 (West 2008)

[3] NY Penal § 240.45 (West 2008)

[4]McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)

[5]NY Crim. Proc. § 140.50 (West 2004)

[6]McBean at *6.

[7]McBean at *1-2.

[8]McBean at *6.

[9]Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)

Common Law Marriage Versus Regular Marriage

The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will  inherit from his wife if she dies without a Last Will and Testament. 

Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968). 

New York’s Recognition of Out-of-State Common Law Marriages

Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well,[1] pursuant to the “full faith and credit” clause of the Constitution. 

For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid.[2] This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”[3] 

Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.”[4] Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.[5] 

Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage. 

Common Law Marriage Under Pennsylvania Law

“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”[6] “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement. This means that making statements affirming or acknowledging a pre-existing marriage status or verbally expressing the intent to get married in the future do not qualify. 

Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage status, Pennsylvania law will create a rebuttable presumption that a common law marriage exists when the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was in (1) Constant Cohabitation and a (2) reputation of marriage “which is not partial or divided but is broad and general”[7] 

Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward, after the date of that case.[8] However, other Pennsylvania courts may not be bound by its decisions,[9] and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.[10] 

But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid.[11] This means that if the couple made their private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to Sept. 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were held to be binding precedent. 

Conclusion

If a couple has (1) made statements to each other to effect their marriage, (2) has lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes. 

As always, these legal issues are complicated, and it is worth noting that our office has extensive experience in matrimonialand estate law. If you need legal representation in general, or if you find yourself in a situation where you may have legal rights under the theory of common law marriage in the divorce or estate contexts, please do not hesitate to contact our office.


[1] See, e.g., In re Steiner, 786 N.Y.S. 2d 83, 84 (N.Y. App. Div. 2nd Dept. 2004); Sears v. Sears, 700 N.Y.S. 2d 626, 627 (N.Y. App. Div. 4th Dept. 1999); Lancaster v. 46 NYL Partners, 651 N.Y.S. 2d 440, 443 (N.Y. App. Div. 2nd Dept. 1996); Tornese v. Tornese, 649 N.Y.S. 2d 177, 178 (N.Y. App. Div. 2nd Dept. 1996).

[2]Tornese at 178.

[3]Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904  (N.Y. App. Div. 2nd Dept. 1996); In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001).

[4] Carpenter at id.; In re Landolfi at id.

[5]In re Landolfi at id.

[6]Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).

[7] Id.

[8]PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).

[9]Stackhouse v. Stackhouse, 862 A.2d 102, 104-05 (Pa. Super. Ct. 2004).

[10]Staudenmayer at 1020 (1998).

[11] Id. at 108.

Picture courtesy of ehow.com.

spotlightTwo articles that originally appeared on this blog were recently featured at GetLegal.com.

One article which originally appeared here was published at GetLegal at the very end of last month: COMMENTARY:  Fetal Homicide Laws & Legal Abortion – The Common Denominator

The other article which originally appeared here was published this past Monday: Driving While Intoxicated (DWI) Without Actually Driving

Picture courtesy of Daron Sutton.

beth din rabbinic tribunal artibrationAs reported here, and as Mitchell Rubenstein predicted, the Appellate Division of the Supreme Court will consider a teacher’s appeal of a Kings County Supreme Court’s nullification of a rabbinical arbitration panel’s decision in an employment case.

Following a dispute between the Hebrew Academy of Five Towns and Rockaway and one of its teachers, Nachum Brisman, regarding the school’s decision to terminate his employment, both sides agreed to have their dispute arbitrated by a well-known rabbinic panel, the Beth Din of America. The rabbinic panel’s arbitration decision favored the teacher in the dispute and when the teacher brought the decision to the Kings County Supreme Court to enforce the decision, it instead vacated it. Judge Balter’s decision can be read here.

Now, Brisman has appealed the lower court’s vacature of the arbitration before the Appellate Division. Three major orthodox Jewish organizations, the Orthodox Union, Agudath Israel of America, and Torah U’Mesorah, joined together last week to file a “Friend of the Court” brief, arguing that the Appellate Division should reverse Judge Balter’s vacature of the arbitration panel’s decision.

You can read the amicus brief here.

The organizations’ amicus brief emphasized that their support of Brisman’s appeal “should not be construed as advocacy on behalf of either party with respect to their underlying claims.” Rather, they clarified in the brief that they are advocating for the reversal of the Supreme Court’s vacature of the rabbinic arbitration agreement in order to prevent the weakening of the rabbinic arbitration system in general.

Indeed, it is difficult to fathom how the court could nullify an arbitration decision that both parties had agreed in advance to abide by. Such a decision seems to encourage the losing party in any kind of arbitration decision to appeal any decision if he knew that the state courts would vacate any decision that the losing party was unhappy with, as long as he could convince the court that the arbitration panel’s decision is “irrational.”

We will see if the Appellate Division agrees. Update 2/19/10: It does!

Picture courtesy of vosizneias.com

long arm statuteNorm Simon and Samantha Ettari wrote an article for Monday’s edition of the Metropolitan Corporate Counsel magazine regarding how New York’s long-arm statute (§ 302(a)(1)) may give New York courts jurisdiction over non-New Yorkers by merely sending e-mail to someone in New York!

Mr. Simon and Ms. Ettari surveyed a number of recent cases that relate to whether’s New York’s jurisdiction statute  gives the state jurisdiction over foreign parties, even where that party’s only contact with New York was by phone, e-mail or other electronic communication.

A leading case cited by the authors is Deutsche Bank Sec., Inc. v. Montana Bd. of Inv. In that case,  an out-of-stater used an electronic messenging service to transact a deal with a trader, based in the trader’s home office in New York. Under those facts, the Court of Appeals held that  “proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.”

However, recent New York Supreme Court cases have held that e-mail, and even telephone conversations alone will not support New York long-arm jurisdiction without something more. The authors cited one recent case,  CPI NA Parnassus B.V. v. Ornelas-Hernandez, Index No. 600997/08 (Sup. Ct. N.Y. Co. Feb. 6, 2009), where a business deal was transacted electronically, but the two out-of-state parties dealt with a third party based in New York. In that case, the court found a sufficient nexus between the transaction from which the litigation arose, the parties, and the state. However, the same judge ruled in Shahidsaless v. Ebadi,  Index No. 115835/07 (Sup. Ct. N.Y. Co. Jan. 14, 2009) that one meeting in New York by two out-of-state parties, along with an e-mail exchange between them was not sufficient to establish jurisdiction.

The authors concluded that the courts consider many factors when determining long-arm jurisdiction based on electronic or other contacts with parties in New York.  The cases mentioned indicate that small differences in the facts of a situation can make all the difference in ambiguous cases.

As always, you may contact our office with any questions about  this or a related matter.

Picture courtesy of peripersonalspace.

gps-tracking-car-device-police

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept.  People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the  Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking  device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case,  Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police.  LINK.

Picture courtesy of consumertracking.com. As always, if you need help with any criminal matter, you are invited to contact our office.

zelinsky_edwardEdward Zalinsky, a Tax professor at Cardozo Law School (Yeshiva University’s law school in New York City), wrote an interesting article at the Oxford University Press Blog.

In it, he explained how he sometimes telecommutes from his home in Connecticut to his job in New York City. He did not include the income he made that he felt was attributable the work he performed in Connecticut. He argues that the Due Process and Commerce Clauses of the Constitution prevent New York state from taxing income earned outside of its borders.

He has taken his case all the way to the New York Court of Appeals, but he was not successful. He argues that, especially now, people should be encouraged to telecommute in order to help prevent the spread of Swine Flu.

Here’s the article: Swine Flu, Telecommuting and New York’s Extraterritorial Taxation of Nonresidents’ Incomes

police-search-car-incident-lawful-arrest-belton-gantLast week, the Supreme Court announced the groundbreaking decision of Arizona v. Gant, significantly limiting the police’s ability to conduct searches of automobiles  “incident to a lawful arrest” without either a warrant or probable cause. Before the Gant case, however, New York courts have consistently interpreted the State Constitution much more strictly, in this regard, than the Supreme Court had interpreted the U.S. Constitution.

This post will explore whether the new Gant decision makes the national rule regarding incident-to-arrest searches more lenient, as strict as New York’s rule, or stricter than New York, which would invalidate the New York rule to the extent that it was more lenient than the new Gant rule. This post will conclude that the Supreme Court’s new rule in Gant is still more lenient than New York’s rule, and that New York’s search-incident-to-arrest jurisprudence will probably not be affected by the holding in Gant.

For a nice summary of the development of the Supreme Court’s rules with regard to searches of automobiles incident to a lawful arrest, see the first part of Evidence ProfBlogger’s post at PrawfsBlawg,  Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests.

In short, before Gant was decided on Tuesday, the national rule, established by the Chimel case, was that  was that incident to any lawful arrest, police may  search “the area from within which he [an arrestee] might gain possession of a weapon or destructible evidence.”  In the context of car arrests, the Court, in New York v. Belton, made a bright line rule that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” This right was automatic. It did not depend on the arrestee’s actual ability to reach a weapon or destructable evidence, nor did the police have to show probable cause or reasonable suspicion that the car was likely to contain evidence or a weapon.

These cases set a very low bar for what would constitute an “unreasonable search and seizure” in the context of a search-incident-to-arrest of an automobile. But New York has consistently interpreted its own Constitution more strictly, not adhering to the lenient bright line rule set by Belton.

People v Blasich, 541 N.E.2d 40 (1989), and, later, People v. Galak, 616 N.E.2d 842 (1993), have interpreted the New York State Constitution‘s [s]ecurity against unreasonable searches, seizures and interceptions” provision (Article I, § 12) as follows: The Court of Appeals has held that the “search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution… exist[] only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence.” Blasich.

Alternatively, the Court held that police may search the car, even where the arrestee factually cannot reach it, where they have

probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” (emphasis added) 

The Blasich court further held that “the proper inquiry in assessing the propriety of [the] search is simply whether the circumstances gave the officer probable cause to search the vehicle… Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.” In other words, it is immaterial whether the probable cause justifying the car search is also probable cause of the same offense that justified the initial arrest. As long as there is probable cause of some crime justifying the automobile search, the police may search it.

The question is whether the Supreme Court’s Gant decision last week brings up the U.S. Constitutional test for searches incident to arrest to the point where it is stricter than, more lenient than or the same as New York’s rule.

In order to answer that question, we must first understand what level of certainty the Supreme Court now requires the police to have that they will find evidence in the arrestee’s car. According to Gant, the police may only search an arrestee’s vehicle when when he “is unsecured and within reaching distance of the passenger compartment the time or the search”, or when it is “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added) 

How certain must they be that evidence of the offense of arrest may be found in the car? The same level of certainty as “probable cause?” “Reasonable suspicion?” Some new test?

 Orin Kerr offers a fundamental discussion of this question in a post at The Volokh Conspiracy, entitled When Is It “Reasonable to Believe” That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?.

In that post, he rules out the idea that “reason to believe” means probable cause because if that is what it meant, the search would be justified under the “automobile exception” to the warrant requirement irrespective of the “search incident to a lawful arrest” exception. Furthermore, he points out that Justice Alito’s dissent specifically distinguishes the “reason to believe” standard from “probable cause,” indicating that he understood the majority’s “reason to believe” test to be something other than probable cause.

I would add that even though the New York Court of Appeals in Blasich, above, uses the phrase “reason to believe” to mean “probable cause, I do not think it is necessarily relevant in determining the Supreme Court’s intended meaning when using the phrase “reasonable to believe.”

Professor Kerr also reasons that it is unlikely that Terry‘s “reasonable suspicion” test is the underlying meaning of “reason to believe.”  As applied to the car search context, “reasonable suspicion” would probably be defined as “whether ‘a reasonably prudent man in the circumstances would be warranted in the belief’ that there was evidence relevant in the arrest in the passenger compartment of the car.” Prof. Kerr opines that this standard would seem difficult to apply in the context of a determination of whether a search for evidence is reasonable, in contrast with its simpler application in a Terry frisk, when the officer has to make a quick decision about whether the person in front of him may be concealing a weapon.

Prof. Kerr concludes that “reasonable to believe” is probably something less than probable cause, but it is not clear to him exactly what level of certainty it is. 

“Reasonable to believe” is most likely less than probable cause. Partly, this is because, as Prof. Kerr pointed out, Justice Alito understood the majority this way in his dissent (and Stevens opinion in Gant also takes note of how influential the Brennan dissent in Belton was in shaping courts’ interpretation of the Belton majority). Also, if the majority opinion had intended to invoke the big gun, the probable cause standard, it should have and probably would have done so explicitly.

But there is another reason why this author believes that the court requires less than probable cause to justify the car search when the arrestee is secured. The fact that the court requires that the officer have a reasonable belief that evidence of the “offense of arrest” might be found in the car indicates that this level of certainty is not synonymous with probable cause. Because if it were, then the probable cause of whatever offense would justify the search of the car under the automobile exception, without the need to invoke the incident-to-arrest exception.

It is evident that the Court is trying to grant added protection to defendants by requiring that the reasonable belief must be that evidence of the offense of arrest will be found specifically because the justification for the search is something less than probable cause. Such a stringency in the search-incident-to-arrest doctrine would not be needed if probable cause that evidence would be found in the car were present and the automobile exception applied.

The court probably requires “offense of arrest” specific reasonable suspicion in order to limit the use of “pretextual stops,” where police pull someone over for some traffic offense, for which the driver could be arrested, because they want to find  evidence of some unrelated offense, in  a search of the vehicle in incident to that arrest.

All of that being said, it appears that New York’s rule is still stricter than the Supreme Court’s rule.

It may appear from the Court of Appeals’ Blasich decision, mentioned above, that New York is more lenient than the Gant case because it allows searches of secured arestees’ vehicles for any offense, while Gant only allows searches for evidence of the offense of arrest.

This is not so, however, because Blasich explicitly stated that the search of a secured arrestee’s car for evidence of any offense is not justified “as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.”  The New York rule, therefore, permits car searches supported by probable cause that evidence of any offense will be found, using the automobile exception. While Gant holds that police must reasonably believe that evidence of the offense of arrest might be found.

This author believes, therefore, that in situations where a suspect has been secured and police do not have probable cause that evidence of some crime will be found in the car, New York will continue to apply the stricter rule that police may not search the vehicle without a warrant. While outside New York, the new Gant rule will be followed that would allow a search of a secured arrestee’s vehicle when police have a reasonable belief that evidence of the offense for which the suspect was arrested might be found in the car.

Picture courtesy of howstuffworks.

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