Last 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.
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April 22, 2009
Our office maintains a very large Wills, Trusts & Estates and general Elder Law practice. See the video above and our New York Wills and Trusts website for more information.
He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.
He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.
The Surrogate held that the validity of the marriage in question is governed by New York law, and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.
I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.
Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.
Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize the “public acts, records, and judicial rulings” of other states.
Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.
The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)
Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.
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April 20, 2009
Update 3:31 PM: Eugene Volokh just posted about the 9th Circuit Panel’s decision’s likely effect on the Supreme Court’s potential consideration of cases relating to the incorporation of the 2nd Amendment against the states. He suggested that the CA gun show case is not a likely candidate for supreme court consideration because the government won on the bottom line and its law was upheld.
The nanchaku case that we’ve been posting on, Maloney v. Rice (it’s no longer captioned Maloney v. Cuomo) is still a strong possibility. Although Prof. Volokh correctly pointed out that the petition for cert was due next week, the news was just released that Justice Ginsburg made the decision to grant an application by the Plaintiff-Appellant, Mr. Maloney, to extend the deadline for their petition for cert until June 26th.
Picture courtesy of transylvaniaphoenix
Prof. Howard M. Friedman, at the Religion Clause blog, reported on the case of Sanders v. State of Texas, decided by the Texas state appeals court just over two weeks ago. In that case, Sanders was convicted of killing Angela Alex and her unborn child. He was convicted based on the Texas Penal Code § 1.07 which “prohibits intentionally and knowingly causing the death of any ‘individual’, and defines ‘individual’ as including ‘an unborn child at every stage of gestation from fertilization until birth.'”
Sanders challenged his conviction, arguing that TX’s definition of the killing of a fetus “at every state of gestation” is unconstitutional because it constitutes a violation the establishment clause of the First Amendment as incorporated against the states by the Fourteenth Amendment. However, the Texas appellate court upheld the TX statute because the statute’s “principal or primary effect” was not to advance religion since it had a valid secular purpose in that it “serves the State’s legitimate secular interest in protecting unborn children from the criminal acts of others.”
While some may find this surprising, many relatively pro-choice states have laws that classify the killing of a fetus as homicide or murder. For instance, the New York Penal Code § 125.00 defines homicide generally as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks…” (emphasis added)
Legislation was introduced on January 15, 2009, just three months ago, which would prohibit the killing of a fetus “at any state of gestation…” (emphasis added) The new language would be more similar to the Texas statute, classifying the non-consensual killing of a fetus at any state of gestation as homicide. Even if adoped, the new language would not take effect until November 1st of the year it is adopted and would not affect abortions performed consensually at the behest of the mother by a physician.
Only about one in seven New York residents believes that abortion by a physician should be prohibited. Nevertheless, the legislature stated that their intent was to give greater protection to pregnant women who are abused to the extent that the abuser’s attack causes her to lose her fetus. The permitting of doctor-performed abortions on one hand and the classification of causing the death of a fetus as murder on the other hand may seem inconsistent, but this dichotomy plays itself out in many other states around the country.
California, a strong pro-choice state, defines murder as “the unlawful killing of a human being, or a fetus…” California cases have defined a fetus as such under the statute at “about 7 or 8 weeks” gestation, when its major structures have been outlined. People v. Valdez (App. 3 Dist. 2005).
States’ classification of killing a fetus as murder is inconsistent with the legality of abortion only if the measuring stick one uses is “when life begins.” But if one considers that legislatures are using a different measuring stick, those positions do not seem as inconsistent. The common denominator that runs between these seemingly inconsistent rules is the legislature’s desire to protect the wishes and rights of pregnant women. Whether the mother wishes to terminate her pregnancy or to prosecute an abuser who terminates her pregnancy through the use of violence, in both cases the legislature’s desire is to honor those wishes.
The fact that even the most pro-choice states classify the killing of a fetus as murder in their criminal statutes indicates that such a classification is certainly not intended as an establishment of religious doctrine as state law. Rather, the fact that states consider non-consensual abortion to be murder while consensual abortion is perfectly legal indicates that in this area of the law, the interests, choices, and wishes of pregnant women are the overriding concern, rather than any attempt at a consistent definition of “when life begins.”
Picture courtesy of Dartmouth Independent.
You may recall that a little over a month ago we reported the news that Kirkland & Ellis’ DC office was going to handle the Nanchaku (“nunchuck”) 2nd Amendment Incorporation petition for certiorari to the Supreme Court. In that post, we discussed the DC v. Heller decision which held that the 2nd Amendment prohibits the Federal government from making laws that infringe on the individual right to keep and bear arms. However, the Supreme Court did not rule on whether the 14th Amendment incorporated that 2nd Amendment right against state and local governments, such that they too could not make laws infringing on the right to keep and bear arms.
The Supreme Court has yet to decide whether the 2nd Amendment is incorporated against the states, and there are three cases currently in the pipeline involving incorporation of the 2nd Amendment. They are the Chicago handgun case, the L.A. Gun Show on Public Property case, and the New York Nunchaku case.
David Kopel, of the Independence Institute and valued “Conspirator” at the Volokh Conspiracy, gave an 11 minute interview (mp3 format) on iVoices discussing those three cases and opining as to which is the most likely vehicle through which the Supreme Court may decide on the issue of incorporation of the 2nd Amendment.
According to David, the nanchaku case that we reported on, Maloney v. Rice, gives the Supreme Court its earliest opportunity to consider the 2nd Amendment incorporation issue. The other two cases are not as far along and the petition for cert in the Nunchakucase is being submitted this month.
Picture courtesy of Karate Depot.
As an office that has a very strong Matrimonial and Family practice, it is with great interest that we read Noeleen Walder’s recent article in the New York Law Journal (“NYLJ,” subscription required). She reported that the current non-modifiable status of § 516 child support agreements for non-marital children, may soon be changing.
Child Support agreements between the parents of children who were born in the context of marriage may be modified without court approval. But child support agreements made between parents of a child born out of wedlock may only be modified by court order, and not by mutual agreement, pursuant to § 516 of NY’s Family Court Act.
According to the NYLJ, the Appellate Division, First Department, in the unanimous decision in Barbara N. v. James H.N., 4399, invalidated a § 516 non-marital child support agreement. While not directly ruling on the constitutional question, the panel held that “to the extent that the statute precludes attempts to reverse support agreements for non-marital children, its constitutionality is questionable.”
What is the constitutional question? Child Support compromises are valid without court order for marital children but not for non-marital children. This poses an Equal Protection problem under the 14th Amendment. The panel suggested that § 516 does not offer equal protection under the law by treating marital children differently from non-marital children.
Based on this and other objections, some state legislators have proposed repealing § 516, and therefore A02578/S2975 is currently before the state Assembly and the Senate Codes Committee.
Picture courtesy of Gov Gab.