more New York City's Stop & Frisks (Part 2: more New York vs. Supreme Court)

In this post, let's look at a few other situations in which New York's highest court, the Court of Appeals, requires some actual justification for a search, but the Supreme Court requires none--absolutely none.

The differences are particularly pertinent in the discussion of New York City's aggressive stop and frisk policy. What about that policy?

Well, according to the NYPD's own reports, nearly 700,000 people were stopped last year by the police in New York City.
Nearly 90% of those stopped turned out to be innocent of whatever they were presumably stopped for and, in fact, of anything else.
Less than 10% of those stopped were White.

Hmmm. No wonder there is a growing outcry.

[A recent discussion of the City's stop and frisk policy, on Northeast Public Radio's Vox Pop with me as the guest, is available at: Vox Pop : Open Forum – ‘Stop and Frisk’ with Albany Law School’s Vince Bonventre : 7/17/12.]

In the last post, we discussed recent decisions of New York's mid-level appeals court that invalidated 2 stop and frisks of teenagers in the Bronx. We considered the implications of those decisions being based on New York State case law, rather than that of the U.S. Supreme Court. In short, the added protection of search and seizure rights afforded by New York's case law makes Supreme Court decisions irrelevant. Beyond that, New York decisions that enforce such added protection cannot even be reviewed by the Supreme Court.
[See New York City's Stop & Frisks (Part 1), July 29, 2012.]

We contrasted the New York Court of Appeals' landmark DeBour decision and its progeny with corresponding decisions of the Supreme Court. In a few words: New York's high court requires some legitimate suspicion to justify incriminating questions and requests to search; the current Supreme Court insists that the federal Constitution requires no suspicion--indeed, no justification whatsoever.

Now, let's briefly review some other search and seizure situations in which the New York court and the Supreme Court take opposing views. In each one, the New York Court of Appeals (as the final authority on New York law) requires some actual justification for intrusive conduct by the police. The Supreme Court (as the final authority on the federal Constitution) requires none.

[And no, I'm not exaggerating. And no, don't blame me for what--in my view and I'm sure many readers will agree--are mostly dreadful search and seizure decisions of the Supreme Court. I didn't appoint them!]

Searches of private property:

Stewart F. Hancock, Jr.

The New York Court of Appeals requires a warrant and probable cause--i.e., reasonable ground to believe particular criminality or evidence thereof--before police may enter and search someone's private property. Seems pretty unexceptional. Unless there's a genuine emergency, police need a warrant, supported by probable cause, to search someone's property. (People v. Scott, 1992; court opinion by Judge Stewart F. Hancock, Jr.)

On the other hand, the Supreme Court requires no warrant, no probable cause, no reasonable suspicion, no legitimate hunch, nothing. Even if the property owner has posted No Trespassing signs and erected a fence! That's right. As long as the police stay outside the "curtilage"--i.e., the area immediately adjacent to the residence [peeping distance]--that Court requires no justification whatsoever.