September 9, 2009
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? Have you ever hung out in a club or bar where people were using drugs? Do you know anyone who has failed to keep their property clean? If so, it is possible for the police to arrest you and, until recently in New York City, strip search you!
The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor. 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.”
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.”
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.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.’”
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.
NY Veh. & Traf. § 511(1) (West 2009)
 NY Penal § 240.36 (West 2008)
 NY Penal § 240.45 (West 2008)
McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)
NY Crim. Proc. § 140.50 (West 2004)
McBean at *6.
McBean at *1-2.
McBean at *6.
Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)
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.
Picture courtesy of howstuffworks.
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
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.
April 1, 2009
On March 4th, Senator Schneiderman, et al, introduced a number of revisions to the Rockefeller era strict drug laws to the New York State Legislature. The law were originally introduced during the tenure of the then-Governor of New York, Nelson Rockefeller in 1973. The laws provide for mandatory sentencing minimums for various drug offences.
Perhaps fearing that he would not be able to garner enough support to pass these changes as a stand-alone bill, Governor Paterson and the legislature are making these amendments to the NY PenalCode part of their vote on the budget.
The new law would give judges more sentencing leeway with narcotics offenders. They could be sentenced to local jails, probation, a military-style “shock camp” or a prison-run drug treatment facility.
Many have lamented the dramatic increase in the U.S. prison population from 300,000 in 1973 to about 2.3 million today. One obvious reason is the large number of drug offenders. Certainly by defining fewer things as criminal, or sentencing drug offenders to treatment rather than jail time, we can expect that the prison population to go down.
According to Malcom Smith, the New York State Senate Democratic Majority Leader, prisoners costs taxpayers about $45,000 per inmate per year. And according to Sheldon Silver, it would only cost the State about $15,000 to pay for treatment in lieu of jail time.
Perhaps only time will tell if these changes will result in more crime through lighter sentencing or will be even more effective than current laws, while saving the State some much-needed money.
As always though, anyone who is facing drug charges should use a lawyer with significant criminal defense experience.
March 12, 2009
The Chicago Tribune has just picked up on a story from over a month ago at mysanantonio.com. The Texas town of Tenaha is using a state forfeiture law that gives the police the right to seize any property used in a crime to bolster that department’s budget. Police officers have been using this law to stop cars traveling through their tiny (pop. about 1000) town and they have taken property from over 140 drivers between 2006 and 2008.
They apparently told people that if they didn’t sign their property over to the police, they would press charges against them for money laundering or other crimes. One waiver said “In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time…”
Cynically, the mayor of the town said that the seizures allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station… “It’s always helpful to have any kind of income to expand your police force.”
Without probable cause that a crime has taken place, and exigent circumstances to justify why the police must search the car without a warrant, police may not search a person’s car unless they have a “reasonable suspicion” that a person poses a danger to the police officer. And even then, they may only pat down a person or search in their immediate vicinity to the extent that such a search may help them find any weapons that could be used against them. They may not search outside of that scope searching for evidence of any crime however. Terry v. Ohio.
In some cases, the only “factual basis” for the drug or money laundering “charges” was the presence of larger sums of money in the car. And even for that, they would have had to search the car to find the motorists’ expensive property or cash without any “reasonable suspicion” of a threat to the police officer. In such a situation, that would be unconstitutional as well.
Normally, the remedy for the police’s violation of someone’s 4th Amendment rights would be suppression of any evidence obtained throught that violation. But in this case, since the individuals chose to sign over their property to the police, and no charges were filed, there is no evidence to suppress. Thus, the only remedy for a violation of these people’s Constitutional rights is by civil remedy, a §1983 discrimination case.
Thus, David Guillory, attorney for the so-far eight plaintiffs in the lawsuit against the town of Tenaha, filed a §1983 Complaint in District Court seeking compensation for the town’s violation of his clients’ Fourth Amendment Constitutional rights.
In an effort to prevent such abuses by towns in the future, the Texas Senate Criminal Justice Committe has recommended several changes to the forfeiture laws there (p.71), including a shift of the burden of proof to the government in order to seize assets:
If the facts are proven to be as egregious as Mr. Guillory and the aforelinked articles suggest, I very much hope he is successful in his case against the town and that the State adopts more stringent rules to prevent abuses like these from happening in the future.
Picture Courtesy of Chicago Tribune
As I posted on Jan. 30th, the Second Circuit Court of Appeals recently decided the case of Maloney v. Cuomo. Jim Maloney (pictured, right) was charged with possession of nunchaku (“nunchucks”) in his Long Island, New York home. He challenged the constitutionality of New York’s ban on nunchaku possession on 2nd Amendment grounds. But the 2nd Circuit held that the 2nd Amendment’s prohibition against laws that infringe on the right to “keep and bear arms” (as interpreted in DC v. Heller) does not apply to state laws.
I have been in touch with Mr. Maloney, since my earlier post, about his plans to take his case to the Supreme Court. The good news is that the D.C. office of Kirkland & Ellis, LLP has taken the case and will handle Mr. Maloney’s petition. They will argue that the 2nd Amendment, like most other individual rights, should be incorporated against the States. Thus, he hopes that the Supreme Court will prohibit state infringement of the individual right to own a weapon, just as it prohibits Congressional infringement. Mr. Maloney has agreed to write a guest post, giving us some background on the New York nunchaku ban, his case, and his future plans with regard to his upcoming petition before the Supreme Court:
New York enacted a ban on nunchaku back in 1974, after the new phenomenon of martial-arts movies had made nunchaku suddenly popular among serious martial artists and gang members alike.
New York’s legislature and Governor (Malcolm Wilson) hastily decided to impose a total ban on the instrument. The sponsor of the bill to ban “chuka sticks,” Assemblyman Richard Ross, wrote that the nunchaku “is designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.” New York City Mayor Beame expressed virtually identical sentiments. Police chiefs and DAs from around the state all weighed in with similar comments, all condemning “chuka sticks.” Manhattan District Attorney Frank Hogan (Robert Morgenthau’s immediate predecessor) wrote that “there is no known use for chuka sticks other than as a weapon.”
Against this strong tide to ban nunchaku only two voices of dissent emerged. The State of New York’s own Division of Criminal Justice Services sent a memorandum to the Governor dated April 4, 1974, pointing out that nunchaku have legitimate uses in karate and other martial-arts training, and opining that “in view of the current interest and participation in these activities by many members of the public, it appears unreasonable–and perhaps even unconstitutional–to prohibit those who have a legitimate reason for possessing chuka sticks from doing so.” Both the Criminal Justice Services memorandum and a similar one from the New York County Lawyers’ Association recognized that nunchaku have legitimate uses, and urged that the legislation be redrafted to permit martial artists to possess nunchaku. But the memoranda did not accomplish their objective, and the total ban was enacted, going into effect on September 1, 1974.
However, within just a few years, courts in other jurisdictions began to recognize that nunchaku have legitimate uses. For example, in 1982, the Supreme Court of Hawaii wrote: “Given the present day uses of nunchaku sticks, we cannot say that the sole purpose of this instrumentality is to inflict death or bodily injury. . . . We believe that nunchaku sticks, as used in the martial arts, are socially acceptable and lawful behavior, especially here in Hawaii where the oriental culture and heritage play a very important role in society.” State v. Muliufi, 64 Haw. 485, 643 P.2d 546.
A year later, the District of Columbia Court of Appeals wrote: “Since we are making a ruling concerning a weapon which apparently has not previously been the subject of any published opinions in this jurisdiction, it is worth making a few further observations about the nunchaku. Like the courts of other jurisdictions, we are cognizant of the cultural and historical background of this Oriental agricultural implement-turned-weapon. We recognize that the nunchaku has socially acceptable uses within the context of martial arts and for the purpose of developing physical dexterity and coordination.” In re S.P., Jr., 465 A.2d 823, 827 (D.C. 1983).
Back in New York, the total ban on any and all possession of nunchaku, even in the privacy of one’s home for peaceful martial-arts practice, has continued to the present day. Most disturbingly, enforcement efforts targeting in-home possession have increased since the start of the new millennium.
A press release from the Office of the Attorney General of the State of New York dated October 17, 2002, indicated that a settlement between a martial-arts equipment supplier in Georgia and the New York Attorney General included the conditions that the company provide then-Attorney General Eliot Spitzer with a list of New York customers who had purchased “illegal” weapons, including nunchaku, and that the company deliver written notice to their New York customers advising them to surrender those illegal weapons to law enforcement agencies.
According to the press release, a similar settlement was reached with another martial-arts equipment supplier in 2000. The press release quoted Spitzer as saying that such weapons, which include nunchaku, “have no place on our streets or in our homes.” (Worry about your own home, Eliot.)
There have been at least two recent criminal prosecutions for simple in-home possession of “chuka sticks” here on Long Island, where I live.
In August 2000, Nassau County police performed a warrantless search of my home in Port Washington while I was not present, found a pair of nunchaku, and charged me with misdemeanor possession of same. Although I was never convicted of any crime, the charge lingered for nearly three years before being disposed.
In 2003, just after the charge was dismissed, and finding myself with “standing” to challenge the constitutionality of New York’s nunchaku ban as applied to simple in-home possession (and being an attorney with a background in constitutional law), I brought a case in federal court in the Eastern District of New York.
The court explicitly recognized that the criminal charge against me for possession of nunchaku “was based solely on in-home possession, and not supported by any allegations that the plaintiff had used the nunchaku in the commission of a crime; that he carried the nunchaku in public; or engaged in any other prohibited conduct in connection with said nunchaku.” The court concluded: “Thus, the only criminal activity alleged against the plaintiff was his possession of the nunchaku in his home.” Unfortunately, the court found that there is no constitutional right protecting that interest.
On appeal to the Second Circuit, that court held that the Second Amendment does not protect the right to bear arms as applied against the states, and that the state had a rational basis for prohibiting possessing nunchaku. They never addressed my specific argument that the state lacked a rational basis for prohibiting simple in-home possession. See the Elliot Schlissel New York Law Blog’s initial post, “Can New York Legally Forbid You to Own Nunchucks?” At this time, the D.C. office of Kirkland & Ellis LLP has agreed to represent me pro bono in filing a petition for certiorari which due in late April. Updates about the case may be found on my dedicated website, www.nunchalukaw.com.
The other local prosecution for simple in-home possession of nunchaku occurred in Suffolk County, and the events began right around the time that the prosecution against me was being disposed. According to a federal civil-rights complaint, on January 25, 2003, Suffolk County Police broke down the door of the home of a Hispanic family in Brentwood and began executing a search warrant to find “drugs” that were suspected at the location because of “frequent traffic” to and from the home. As it turned out, no drugs were found even after a thorough search including the use of dogs. The family’s home-based Avon business explained the frequent visitors to the home. But the police did find an old pair of nunchaku hanging in a closet, and the man of the house, who admitted to owning them, was subsequently charged with misdemeanor possession.
The charges against him were not disposed until March 2006,w hen he was given an ACD (“Adjournment in Contemplation of Dismissal”). As of the date of this post, the civil-rights case against the Suffolk County Police is scheduled to begin trial before Judge Wexler of the Eastern District on March 9, 2009.
It is clear form the foregoing that New York can and will enforce the criminal statutes, enacted in 1974, that ban possession of the nunchaku even in one’s home. Eliot Spitzer’s civil actions against the martial-arts equipment suppliers, coupled with the two recent prosecutions on Long Island for in-home possession, make it clear that martial artists who wish to acquire and keep nunchaku in their homes for practice or self-defense must risk the possibility of criminal charges that could lead to a year in prison for doing so. That has been the state of affairs in New York for some 35 years.
Whether it will continue is a question that will (I hope) soon be up to the Supreme Court.
-James M. Maloney is an attorney and solo practitioner in Port Washington, New York.
(Mr. Maloney makes no admission, nor should any be inferred, that the above-photo was taken in NY)