Search and Seizure Under Chief Judge Wilson

Will his elevation lead New York to greater protections of privacy and freedom from government interference?

By Jordyn Conway

Jordyn Conway is a third year student at Albany Law School, where she is serving the community as Pro-Bono Scholar in her final semester.

Prior to attending law school, Jordyn was employed as a planning consultant addressing municipal and land-use issues in New York State. She earned her bachelor’s and master’s degrees from the SUNY ESF at Syracuse University, and briefly studied environmental planning and policy at University College Dublin, Ireland.

In addition to her academic studies at the law school, Jordyn has served as the Co-Chair for the Women’s Leadership Initiative Fellowship, Director of Finance the Moot Court Program, Sub-Editor for the Government Law Review, Teaching Assistant for Professor Armstrong’s Torts course, and has interned for the New York State Supreme Court, 4th Judicial District. This summer she is working as Summer Associate for Whiteman, Osterman & Hanna, LLC.

 
It is anticipated that Chief Judge Rowan Wilson’s tenure as the leader of the New York Court of Appeals will take the state’s highest court in a more liberal direction, especially in consideration of the rights of the accused. As demonstrated in Chief Judge Wilson’s opinions, and even more notably in his dissents, he has expressed his views on how New York law should be interpreted and applied in cases where the protection of privacy related to search and seizure is at issue.

Overall, Chief Judge Wilson’s decisions have revealed that he has a rather liberal stance on Fourth Amendment federal issues and Article 1, Section 12 issues under New York’s state constitution. In multiple cases, Chief Judge Wilson has dissented where he felt the majority was too lenient in approving searches and that the standards for seeking or implementing a warrant needed to be heightened. Additionally, his dissents have argued for greater protections stemming from the state constitution rather than defaulting to the minimum protections offered by the federal Constitution.

This paper explores Chief Judge Wilson’s dissents in search and seizure cases to provide a legal analysis with regard to his views and how he might approach such issues in the future as Chief Judge of the Court of Appeals. 

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To read the paper, open HERE.

Chief Judge Lawrence H. Cooke: An Era of Progression in New York State

By Jaime M. Collins

Jaime Collins is a third-year student at Albany Law School. She graduated from the University of Albany in 2012 with a major in Political Science and a double minor in Chinese and History. She has been working at the New York State Assembly since 2012, and continues to do so while attending Albany Law.
Jaime is currently a member of the Albany Law Review; she is this year's Executive Editor for the annual New York Appeals issue. She has been interning at the Albany County District Attorney’s Office since this past summer. She previously interned at the Appellate Division, Third Department, for Justice Christine M. Clark.
Upon graduation, Jaime hopes to pursue a career as a Prosecutor.
This paper was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

This paper takes a look at some of the many landmark decisions written by Chief Judge Lawrence H. Cooke, Albany Law School class of 1938. Undeniably, many of his decisions have had a lasting impact on the jurisprudence of the New York Court of Appeals and especially the law of fundamental rights.

The first part of this paper is a brief introduction to Chief Judge Cooke’s journey to the high court. The second part is an examination of his landmark decisions, divided into three parts: first, an analysis of those decisions written by Chief Judge Cooke regarding a defendant’s fundamental right to counsel; second, an analysis of vehicle searches and a comparison to the Supreme Court’s rulings on the same topic; and third, an analysis regarding due process.

Chief Judge Cooke authored all of the cases that will be discussed. The paper closes with a few concluding observations.
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To read the paper, open HERE.

New York Search & Seizure in the Lippman Era

By Peter F. Stroe
Peter Stroe is a third year student pursuing a concentration in criminal law at Albany Law School. He received his B.S. in Criminal Justice, with a concentration in pre-law, from Utica College, and wrote his Bachelor's thesis on the pre-selection of guilt for indigent defendants when having appointed counsel.
While at Albany Law, he served as an Editor for the Center for Judicial Process, a Student Member of the Justice Jackson Committee, a Student Intern with the Albany County Office of the Public Defender, and Vice President of the law school's Cardozo Society.
He prepared this Presentation, for Professor Bonventre's Judicial Process Seminar, Fall 2014.

Jonathan Lippman was nominated to be New York's Chief Judge by Democratic Governor David Paterson on January 13, 2009. He was then confirmed by the state senate and sworn in on February 11, 2009. Replacing Judith Kaye in the center seat of the Court of Appeals, New York's highest court, Jonathan Lippman brought a wealth of knowledge and passion to usher in a new era of civil rights and liberties.

This paper will examine five significant cases to help examine the court’s jurisprudence in the area of searches and seizures. The cases will be discussed in chronological order. They cover the following topics: GPS tracking devices,  warrant requirements,  canine sniffs,  “founded suspicion,”  and the “exigency exception” to the warrant requirement.

The so-called “Lippman Era” could be said to have begun with People v. Weaver.  That was the first major search and seizure case that the new court decided with the participation of Chief Judge Lippman. Writing for the majority––and reversing both lower courts––Chief Judge Lippman held that the placement of a GPS tracking device and its subsequent monitoring of a car’s location did, indeed, constitute a “search” and, as such, required a warrant under New York’s Constitution.
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To read the paper, open HERE.

The New York Court of Appeals: Recent Search and Seizure Jurisprudence

By Mackenzie Keane Plaske
Mackenzie is currently a first-year associate at the law firm of Iseman, Cunningham, Riester & Hyde, LLP in Albany, New York, practicing primarily in the field of health care. She graduated magna cum laude from Albany Law School in May 2013.
While at Albany Law, Mackenzie participated in the Health Law Clinic and was a teaching assistant for Civil Procedure, Torts and Criminal Law.  Additionally, she was a Finalist in the Domenick L. Gabrielli Appellate Advocacy Competition.  As a member of the Albany Law Review, she also served as Executive Editor for New York Appeals during her third year.
This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2013. It is Mackenzie's second publication for the Center. (See The New York State Court of Appeals and the Exclusionary Rule: From the Kaye Court to the Lippman Court, March 5, 2012.)


The line between reasonable and unreasonable searches and seizures has proven difficult to delineate. Courts are unable to dictate with particularity when a search or seizure would be permissible or impermissible, because each situation calling for such an analysis presents unique facts and circumstances.

When interpreting and rendering decisions on search and seizure, the Court of Appeals may ground its opinions upon independent state constitutional grounds. Unlike other states, such as Florida, New York has not adopted a lockstep approach to constitutional analysis. Therefore, the Court of Appeals is free to provide more constitutional protection than that provided by the U.S. Supreme Court, and that is exactly what the Court of Appeals has done.

Sometimes, but not always, the Court’s decisions align with those of the U.S. Supreme Court. But, whichever way the decisions fall, the Court of Appeals cites its substantial interest in protecting the rights of the citizens of New York State.

This paper will explore some of the recent Court of Appeals decisions involving search and seizure rights that fall within the ambit of New York State Constitution’s prohibition on unreasonable searches and seizures.
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To read the paper, open HERE.

Ginsburg (and sometimes Scalia) on Search and Seizure

By Joshua Greenfield
Joshua Greenfield is a third year student at Albany Law. He graduated from Syracuse University in 2011 with a degree in Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He is currently a contributing member of the Center for Art Law website writing on various issues in the field of art law.
This essay was prepared for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.


Looking back on the last ten divided Supreme Court decisions in which Justice Ginsburg voted on the issue of search and seizure under the Fourth Amendment, it is evident that Ginsburg is, above all else, a proponent of greater individual and privacy rights.[1] Justice Ginsburg’s decisions are not guided by a need to ensure that law enforcement complies with procedure. Rather, it is the level of intrusion the government places on an individual that determines how she votes.

Her “stream of tendency,”[2] the underlying principle guiding her decisions, is based on greater individual freedom and personal autonomy. In every single divided case involving searches and seizures in the last ten years or so, Ginsburg has voted for greater individual protections from governmental intrusion rather than allowing law enforcement to exercise discretion.

The Arizona Supreme Court: The Honey Badger of State Constitutional Analysis

Grace Mellen, a third year law student at Albany Law School, graduated magna cum laude from SUNY Cortland with a degree in Political Science and a minor in History. Presently, she interns with The Honorable David A. Weinstein at the New York State Court of Claims. She has also interned with the New York State Office of the Attorney General. Grace is also a Senior Editor for the Center for Judicial Process.
Grace prepared this paper for Professor Bonventre’s State Constitutional Adjudication seminar, spring 2013.

Since the United States Supreme Court (“U.S. Supreme Court”) handed down the landmark Terry v. Ohio decision in 1968, permitting warrantless stop and frisks based on reasonable suspicion, the issue of search and seizure has been unsettled as states determine how to reconcile the Terry decision with their own constitutions.

Some states, such as Illinois, are comfortable applying the standards of the U.S. Supreme Court to their own constitution, as long as there is no glaring language or legislative history that would force them to do otherwise. Other states, such as New Jersey and Washington, have interpreted their constitutions to offer their citizens more protection against unreasonable searches and seizures, arguing that the provisions within their state constitutions mandate this enhanced protection.

This paper will examine whether the Arizona Supreme Court has chosen to follow the parameters established by U.S. Supreme Court under the Fourth Amendment to resolve search and seizure issues, or if they instead rely on the Arizona State Constitution as their guide. To do this, five cases involving search and seizure issues from 2004 to 2012 will be analyzed. In order to see if the Court follows a clear method of state constitutional analysis, this paper will consider whether the Court relies on the Arizona State Constitution or precedent from the Supreme Court of Arizona.

This paper will also examine whether the Court expands protection against unreasonable searches and seizures, or if it has merely followed the federal parameters set out by the U.S. Supreme Court.

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To read the entire paper, open HERE.

Application of De Bour by the New York State Court of Appeals

& More

By Andrea A. Long
Andrea Long, a 2013 graduate of Albany Law School, is an Assistant Corporation Counsel for the New York City Law Department.  While at Albany Law, she was the Executive Editor of the Center for Judicial Process, as well as an Associate Editor of the Albany Law Review. She was both the winner and Best Oral Advocate of the 2011 Gabrielli Appellate Advocacy Competition and was a member of the Albany Law School team that competed in the national Spong Invitational Moot Court Tournament. Andrea prepared this presentation for Professor Bonventre's State Constitutional Adjudication seminar, spring 2013.

The Court of Appeals' 1976 decision in People v. De Bour established requirements to justify increasing levels of police intrusions, from a simple approach and innocuous question to a full arrest and search.
The De Bour requirements, initially outlined and later reaffirmed in opinions by Chief Judge Sol Wachtler, have served as bedrock protections against arbitrary police encounters in New York--and have no parallel safeguards in U.S. Supreme Court jurisprudence.
Andrea Long's power point presentation takes a look at De Bour and it's reaffirmation and frequent application by New York's highest court, particularly significant today in light of the challenges to New York City's controversial stop & frisk policy. --vmb

(click to enlarge)

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To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

Essay: Courts versus NYC's Stop & Frisks

By Andrea Long
Andrea Long, a third-year student at Albany Law School, is the Executive Editor of the Center. She is a magna cum laude graduate of the Crane School of Music at SUNY Potsdam. Andrea is a Senior Editor on the Albany Law Review, she served as Project Director of the Education Pro Bono Project, and she works year-round as a law clerk in the Office of General Counsel of New York State United Teachers. She was both the winner and Best Oral Advocate of the 2011 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. In the Fall 2012 semester, Andrea will be a legal intern in the law school's Domestic Violence Prosecution Hybrid Clinic.


There have always been tensions between maintaining a safe society and abiding by the constitutional rights of its citizens.  These tensions have recently come to a head in New York City, in a situation one federal judge described as a “deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.”  Floyd v. City of New York, 2012 WL 1868637 (S.D.N.Y. May 16, 2012).

The New York City police department’s stop and frisk policies have been widely criticized, most notably by two Appellate Division decisions overturning weapons convictions obtained through what were held to be unconstitutional stops and frisks.  See In re Darryl C., 2012 WL 2383852 (N.Y. App. Div. 1st  Dep’t June 26, 2012); In re Jaquan M., 2012 WL 2532761 (N.Y. App. Div. 1st Dep’t July 23, 2012).

It is likely the stop and frisk policies will ultimately be resolved by New York’s highest court, the Court of Appeals, in the near future.  In order to understand the interplay between our Constitutional rights, police stop and frisk policies, and how judicial intervention may shape those policies in the future, some background on search and seizure law and police encounters is necessary.

The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  U.S. CONST. amend. IV.  To preserve a safe society and keep crime at a minimum, it is well-settled in both federal and New York case law that, in some situations, police have the authority to question, detain, search, or arrest individuals.

In order to avoid infringing unduly on an individual’s constitutional rights, New York Court of Appeals decisions have mandated that these invasions of privacy be justified by an increasing level of suspicion and cause. See People v. DeBour, 40 N.Y.2d 210 (1976); People v. Hollman, 79 N.Y.2d 181 (1992). To engage in a constitutional stop, a police officer must have reasonable suspicion to believe that the individual has committed a crime. A frisk requires reasonable suspicion that the stopped individual poses a risk to the officer’s safety.  To approach an individual and ask questions indicating criminality, the officer must at least have some reason to suspect that some criminal activity is taking place.

New York City’s aggressive program of stop and frisks has been widely criticized. It is said to target minorities and drug-ridden neighborhoods, and to involve stops and frisks without the requisite degree of suspicion.  Russ Buettner and William Glaberson, Courts Putting Stop-and-Frisk Policy on Trial, N.Y. TIMES (July 10, 2012), http://www.nytimes.com/2012/07/11/nyregion/courts-putting-stop-and-frisk-policy-on-trial.html.  The latest criticisms have come from the courts, specifically from judges on New York State’s mid-level appeals court, the Appellate Division.

The Appellate Division, First Department, which sits in Manhattan, recently overturned two weapons convictions, in each case due to a stop and frisk that, in the court’s view, occurred without the necessary level of suspicion.  In both cases, the majority opinions flatly rejected the argument that reasonable suspicion is formed through an individual’s presence in a high-crime area, or on the “hunch” of an officer.  These decisions suggest a judicial leaning toward reinforcing constitutional rights and drawing boundaries on New York City’s stop and frisk policy by way of the court system.

In one case, while commenting on the right against unreasonable searches and seizures, the court decried “[t]he gradual erosion of this basic liberty [that] can only tatter the constitutional fabric upon which this nation was built.”  In re Darryl C., 2012 WL 2383852 (N.Y. App. Div. 1st  Dep’t June 26, 2012).

In that case, a teenager was walking in an area of the Bronx that had recently been the site of multiple gang-related shootings.  A police officer, upon observing the individual holding some sort of black object, watched him put the object in his pocket and continue walking.  After these observations of what the court described as “unexceptional activity,” the officer approached the individual and began to question him about his destination and about the object he had placed in his pocket.  When the officer asked what the object was, he received an answer that he considered suspicious. At that point, the officer frisked the individual. A weapon was uncovered in the process.

The Appellate Division overturned the resulting weapons conviction. It explained that the question in the case was not whether the object found was incriminating. Rather, the question was whether the officer had authority to search the teenager in the first place. In an opinion that seems to show the court taking a definitive stance against the City’s current policy, the majority engaged in a lengthy analysis that emphasized the need for police officers to have justification for a stop and frisk that amounts to more than just “vague concerns” for safety.  The city has announced it will appeal the case to the Court of Appeals.  Buettner and Glaberson, Courts Putting Stop-and-Frisk Policy on Trial.

The majority in Darryl C opinion also cited the federal trial court’s decision in the Floyd case. There, the district judge pointed out that “the policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year.”  Floyd v. City of New York, 2012 WL 1868637.

The case of In re Darryl C. is illustrative of New York City’s policy because it describes seemingly generic, innocuous activity that led to a stop and frisk, presumably due to the appellant’s presence in a high-crime area rather than any more particular reason for suspicion.  That type of situation is exactly why New York City’s stop and frisk policy has been harshly criticized by an increasing chorus of the public, and now, by the judiciary.  As the public outcry grows and the police department continues to stand by its policy, it appears that it will be up to the courts to have the last word on just how far police officers are allowed to go in exercising a hunch.

The New York State Court of Appeals and the Exclusionary Rule

From the Kaye Court to the Lippman Court

By Mackenzie M. Keane

Mackenzie Keane, a second-year student at Albany Law School, is a member of the Law Review and an Associate Editor of the Center. Originally from Albany, she graduated magna cum laude from SUNY Buffalo where she majored in English and spent a summer studying in Spain. She has interned with the Albany County District Attorney's Office and Governor Cuomo's Office of General Counsel, and is a Research Assistant for Professor Bonventre, as well as a Teaching Assistant for his Criminal Law class.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

In the landmark Supreme Court decision of Weeks v. United States in 1914, the Court held that the exclusionary rule is inherent in the Fourth Amendment, which protects all citizens against unreasonable searches and seizures. The now famous “fruit of the poisonous tree” language first appeared in Nardone v. United States and has since been used to describe evidence linked to an illegal search or seizure.

The language of the Fourth Amendment took time to become a part of the New York State Constitution. The 1938 New York State Constitutional Convention was largely influenced by the events taking place in Europe at the time, including the social and political strife caused by the Nazi regime. The debate that ensued was a highly publicized and partisan one that threatened both constitutional and political consequences.

Then New York County District Attorney Thomas E. Dewey framed the constitutional argument as a dangerous one that would limit the ability of the State of New York to protect its citizens. Most supporters of the addition of the Fourth Amendment language to the New York State Constitution relied on the Supreme Court’s decision in Weeks v. United States, arguing that the protection of the exclusionary rule was inherent in the substantive protection of the Fourth Amendment. Despite the heated debate, the convention ultimately decided not to constitutionalize the exclusionary rule and to instead let the Legislature and the Court of Appeals debate its scope and limitations. Although the convention did not add the exclusionary rule to the New York State Constitution, state voters ratified the 1938 convention’s proposed constitution’s bill of rights provisions in 1938. Those provisions included search and seizure and wiretapping provisions.

The United States Supreme Court decision in Mapp v. Ohio extended the exclusionary rule protection to state criminal cases. Justice Clark argued the hypocrisy of the fact that federal prosecutors could not even consider using illegally obtained evidence, but state prosecutors could use that same evidence in their case, even though those state prosecutors are supposedly acting under the same Constitution as the federal prosecutors. Although the New York State Constitution’s adoption of the U.S. Constitution’s Fourth Amendment language would seem to frame the State’s adoption of the exclusionary rule as a constitutional issue, the Court of Appeals has never made clear whether its application of the rule is a constitutional interpretation or a common law rule of evidence.

A judge’s stance on the application of the exclusionary rule indicates much about her personal and political views. Calabresi’s commentary on the exclusionary rule simplifies the indication as follows: “To liberals, it is a pillar of privacy; it is essential to protect individuals from predations on the part of the police. To conservatives, it is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.”

Calabresi also mentions the interesting paradox of the “veracity” of evidence obtained in violation of search and seizure rights. Illegal evidence obtained from illegal wiretapping, warrantless searches, and vehicle stops without probable cause are examples of evidence that is inherently truthful because of the way in which it is gathered. And yet that evidence is barred from use by the prosecutor. The way that a judge votes on an exclusionary rule issue is very telling, because of the high stakes that accompany use of the rule. In reality, the judge isn’t simply voting on whether or not the exclusionary rule applies in a straightforward, application of law to facts approach. The judge is performing a costs versus benefits analysis of the gravity of the police misconduct and the danger of letting a criminal reenter society.*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.