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Winter 1996
   
The Court Criminals Love
Peter Reinharz
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For hours, Marrhonda G. had been standing alone in the departure area of Manhattan's Port Authority Bus Terminal, a multicolored laundry bag at her feet. As Police Officer Joseph DeFelice watched, lines of departing passengers walked past the teenager and onto their buses. DeFelice suspected that Marrhonda, who looked 13 or 14 to him, was a runaway. He went up and asked where she was headed. Connecticut, she said; but the officer pointed out that she'd already missed that bus. The girl then said she was waiting for a friend whom she couldn't name, heightening the officer's suspicion that she was a run-away. He asked her to come to the Youth Services Office with him, and Marrhonda agreed. 

But as she started to follow the officer, she dropped her bag. This lack of street smarts convinced DeFelice that the girl was an out-of-town runaway; he advised her not to leave her property unattended. She picked up the drawstring and began to drag the heavy bag across the floor toward the Youth Services Office. When DeFelice asked Marrhonda what was in the bag, the girl said her aunt had packed it and had told her not to open it. At the office, DeFelice told Marrhonda to leave the bag near the door and come to a desk in the rear of the room.

After DeFelice tried unsuccessfully to call the girl's aunt in Connecticut, Marrhonda changed her story yet again: she was in town to spend a few days with her boyfriend, whose last name and address she didn't know. Making this story even less plausible, she added that she was 15.

While DeFelice was questioning Marrhonda, a sergeant walked in, and since Marrhonda's bag was blocking the entrance, he picked it up and put it on the table. To balance it, he put his hand against the bag's bottom, where he felt the butt and trigger guard of a semiautomatic weapon. The sergeant called DeFelice over. "Feel this," he said. The policemen opened the bag and found two 9-millimeter semiautomatic handguns, one .38-caliber semiautomatic handgun, one .44-caliber revolver, and 150 rounds of ammunition. A gun courier, they realized, Marrhonda G. was arrested and taken to Manhattan Family Court, where she was convicted on several counts of possession of a loaded firearm.

But the conviction didn't stand. In 1991 the New York State Court of Appeals, the state's highest court, ruled that the officers had violated Marrhonda's rights by opening her bag. What makes this ruling so remarkable is that the Court of Appeals, as it has done over and over again, suppressed evidence that the U.S. Supreme Court would have found perfectly acceptable.

In recent years the U.S. Supreme Court has struggled to strike a balance between the rights of criminal suspects and the legitimate needs of law enforcement authorities. At the same time, however, New York's highest tribunal has gone in exactly the opposite direction. It has expanded the state's version of the exclusionary rule—the legal principle that prosecutors can't use evidence police gathered illegally—in ways undreamed of even during the Warren Court's wildest era of judicial activism. 

Like its federal counterpart, the state's exclusionary rule originally aimed to deter unconstitutional police action: police won't be tempted to acquire evidence or confessions illegally, went the reasoning, if they can't use such evidence in court. But in New York, the Court of Appeals has extended the rule far beyond this purpose. Using the state's Constitution in support of a political agenda, New York's highest court has ensured every criminal defendant protections well beyond those mandated by the U.S. Supreme Court, leaving police and prosecutors handcuffed and sending violent criminals back to their terrorized communities. 

Few New Yorkers realize that the ultimate arbiter of criminal procedure and defendants' rights in state court, where most criminal trials take place, is often the New York Court of Appeals. While the U.S. Supreme Court's interpretation of the federal Constitution guarantees the minimum rights of any defendant, state high courts are free to extend additional rights to citizens on trial in their own courts based on their own interpretations of the state constitution. As long as such a decision raises no questions under federal law and rests on "independent state grounds," it is outside the jurisdiction of the U.S. Supreme Court and remains the final law of that state. As a result, New York courts unreasonably and counterproductively suppress evidence that the rules governing federal and other states' courts would allow to be admitted.

Take, for example, the New York Court of Appeals' overzealous interpretation of the familiar Miranda warnings. As everyone who's watched TV cop shows knows, the U.S. Supreme Court requires police, when arresting a suspect, to advise him of his right to a lawyer before questioning him. Once a suspect has a lawyer in a criminal case, officers can't question him about that case without the attorney present. 

In the early l980s the New York Court of Appeals, in the case of People v. Bartolomeo, added another requirement: officers couldn't question any suspect who was represented at that time by a lawyer on any other criminal case. Naturally, the rule benefited only repeat offenders, since they were the ones who already had counsel on other criminal cases. If a recidivist confessed to another crime in the absence of his lawyer, his confession was subject to suppression—and the case against him to dismissal—because the court had extended this bizarre protection to habitual criminals. 

Nearly a decade after Bartolomeo, the Court of Appeals, in a four-to-three decision, reversed its original ruling because of "the questionable policy behind it." Noting that the benefit of Bartolomeo ran exclusively to the multiple offender, the court's majority explicitly considered the decision's baleful effect on public safety and acknowledged that the rule provided a New York suspect with protections "far more expansive than the federal counterpart." But during almost ten years before the court did the right thing, no one can know how many cases prosecutors never filed, how many violent criminals went free, because Bartolomeo stymied the police.

And though the court, by a bare majority, finally came to its senses in this one instance, dozens more such rules are still doing their incalculable damage. Worse, a majority of the judges now sitting on the Court of Appeals are all too willing to extend still further protections to criminal defendants, regardless of public safety. New York's prosecutors and police are bound by singularly restrictive rules in obtaining warrants, conducting searches, seizing evidence, and managing identification procedures like lineups.

These rules, according to the Court of Appeals' majority, enhance New Yorkers' rights beyond the minimal guarantees of the federal Constitution. One associate judge of the court, Vito Titone, notes with satisfaction that courts in several states have taken "an active role in extending to state citizens greater protections than the federal Constitution has been deemed to afford. The result has been an emerging perception that state courts are a more hospitable forum than are their federal counterparts for those who seek expanded protection of human rights and civil liberties." 

The logic the Court of Appeals uses as it "expands" the "human rights and civil liberties" of New York defendants is profoundly flimsy—as is its grasp of real-life policing. Consider the judges' reasoning in the case of Marrhonda G., the gun smuggler nabbed by Port Authority police. Under federal law, the removal of the weapons from the girl's bag when officers felt a gun is permissible under the "plain touch" or "plain feel" doctrine. This rule is an extension of the "plain view" principle, which allows officers to seize illegal items without a warrant if they are in plain view. By analogy, so long as the officers were not violating any other of Marrhonda's rights when they touched the bag—and they could not have been, since the sergeant was moving the bag to unblock an aisle, not to search it—their sense of touch would suffice in any federal court as probable cause to open the bag and retrieve the guns. 

New York's Court of Appeals opted to protect the rights of a teenage gun smuggler by rejecting the well-established federal plain touch doctrine. "The underlying justification for the plain view exception cannot logically be extended to concealed items which are discoverable only by touch," the court insisted. Further, since the guns, sitting in a bag by the door, posed no imminent threat to police, the officers had insufficient "exigent circumstances" to open the bag without a warrant. The judges therefore opined that the officers should have questioned Marrhonda about the bag's contents or gotten either a warrant or the girl's consent to search.

The judges' reasoning in rejecting "plain touch," along with their suggestions about how the police should have behaved, reflects the court's obliviousness to the realities of police work. The court stated that police can't know for sure they are dealing with a gun unless they actually see it. Yet officers frequently use senses other than sight as the basis for a search, and the courts have upheld their authority to do so. For instance, the U.S. Supreme Court, and even an earlier New York State Court of Appeals, held that the sense of smell—in a case involving burning marijuana—was enough to justify searching the interior of a car and all closed containers therein. Similarly, the sound of gunshots is enough to allow officers to detain and search individuals found near where the shots originated.

Suppose the officers questioned the girl further or asked her consent to search the bag, as the court proposed. Most likely, Marrhonda G. would not have volunteered more information— she had already claimed not to know what was in the bag—and she would have denied possessing a gun. Surely the officers—both trained firearms experts—would still have had probable cause to believe that a gun was in the bag. And law enforcement authorities routinely, and legally, search luggage without consent on far less suspicion. New York law permits a search of a bag based on the beep of a metal detector in an airport or courthouse—a signal nowhere near as conclusive as a police officer's feeling a gun. 

The judges' silliest suggestion was that the officers should have gone to court to get a warrant to open the bag. Such a requirement can only inconvenience an innocent suspect. Instead of allowing the officers to open the bag immediately to determine

whether the gun was real, the Court of Appeals—in the name of individual liberty—would have them wait hours, even all night, for a warrant, during which time they would have had to detain the girl. In effect, the Marrhonda G. case upheld the sanctity of the suitcase over the privacy of the person.

Why would the Court of Appeals, on such flimsy grounds, suppress an arsenal of illegal firearms and ammunition during a time of rising violent crime? Some of the judges on the Court of Appeals have been explicit in answering: ideology drives their extension of rights to criminal defendants in New York State.

Vito Titone, the associate Judge who has led the court's rejection of federal standards for law enforcement, has written: "I would be less than candid if I failed to acknowledge that the transition from the Warren Court to the Burger-Rehnquist Courts, with the attendant shift in the Supreme Court's philosophy, is perhaps the single most important factor behind the heightened attention to state constitutions." 

Similarly, Chief Judge Judith Kaye wrote while still an associate judge, " Considerations of policy have . . . led the New York Court of Appeals to depart from federal precedents in search and seizure cases. Its departure from Fourth Amendment precedents has been expressly predicated upon policy considerations, particularly the perception that the Supreme Court of late had changed the federal standards, muddying the rules and diluting judicial supervision of the warrant process, thereby 'heightening the danger that our citizens' rights against unreasonable police intrusions might be violated "'

In rejecting the U.S. Supreme Court's Fourth Amendment decisions as insufficient protections for the citizens of New York State, the Court of Appeals has based its decisions restricting police procedures on Article I, Section 12 of the New York State Constitution. Is the state Constitution so different from the federal one that such different results are inevitable? Hardly: the Fourth Amendment and the parallel state provision read exactly the same. The difference lies entirely in the eye of the judicial beholder. 

While the Supreme Court recognizes that the right to be secure from unreasonable searches and seizures is a guarantee against police abuses, the Court of Appeals has gone far beyond this purpose in its limitations on the exclusionary rule. By doing so, the court has reshaped criminal procedure in New York State, creating a myriad of escape clauses for violent offenders and stifling effective law enforcement.

Perhaps no case better illustrates the point than the Court of Appeals' zeal in suppressing a loaded handgun possessed by Benigno Class. Two New York City cops on patrol in the Bronx pulled Class over for speeding and driving with a cracked windshield. Class got out of his car and produced a license and an insurance card but no registration. While one of the officers 42 talked with Class. his partner walked to Class's car to examine the vehicle identification number (VIN), a unique number mounted on the dashboard of every car sold in the United States. Federal regulations require the VIN as a means of deterring auto theft. When the officer looked through the windshield, he saw that papers on the dashboard covered the VIN. As he reached into the car to move the papers, the officer noticed a gun protruding from beneath the driver's seat. He seized the weapon and arrested Class for possession of a loaded handgun. 

Prior to trial, Class's attorneys moved to suppress the gun, which, they claimed, the police had seized illegally. The trial judge agreed, but the Appellate Division (New York's intermediate appellate court) overturned the ruling and reinstated the indictment. The Court of Appeals, in a decision Judge Kaye wrote, reversed the Appellate Division, suppressed the gun, and dismissed the charges against Class. The court, this time relying primarily on federal constitutional precedent, reasoned that the intrusion into the car—slight as it was—was a search, and so the officer had no right to reach in to move the papers. It was irrelevant, said the court, that the VIN was supposed to be kept in view. "The absence of any legitimate expectation of privacy in the VIN itself is not determinative of the issue presented," Judge Kaye wrote. "The fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it."

Since the decision rested principally on federal case law and not on independent state grounds, the district attorney was able to appeal to the U. S. Supreme Court. The justices reversed the decision. Since Class had no " privacy interest" in the VIN, they held, the officer had not violated his rights. Justice Sandra Day O'Connor, writing for the Court, explained: "A motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle, and the individual's reasonable expectation of privacy in the VIN is thereby diminished." A defendant's "efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist."

Accordingly, the Supreme Court sent the matter back to the Court of Appeals for further proceedings. The New York court, now under orders from the Supreme Court to enter the gun into evidence, could have been expected to return the case to the trial court with an order to go ahead with the prosecution of Benigno Class. Instead, the Court of Appeals rejected the conclusion of the High Court in Washington and turned to the state's version of the Fourth Amendment to suppress Benigno Class's gun. Two American courts, relying solely on identical constitutional language, came to opposite conclusions in the same case: is this what Judge Kaye had in mind when she wrote that state judicial activism avoids "muddying the rules"? 

In effect, New York's high court carved out a new privacy right in an area specifically designed for public and law-enforcement inspection. This decision is as puzzling as it is disturbing. No one denies that police have the authority to demand a driver's license, registration, and insurance card, even though, since motorists often keep these items in their wallets or purses, such items would appear to be invested with a greater privacy interest than the VIN. Indeed, the Court of Appeals has defeated the very purpose of mounting a VIN on the dashboard—easy viewing to deter and solve auto theft. A criminal in New York can obscure the VIN, using the extra security of the state Constitution to aid in his crime. Surely the drafters of the state Constitution, when they copied the Fourth Amendment verbatim, could not have intended to create a panoply of local protections that act as partners in criminal activity. 

In a similar vein, the Court of Appeals extended New York's right to privacy so that upstate farmers can cultivate drugs openly with little concern for police interdiction. Although the U.S. Supreme Court has for over ten years accepted an "open fields" doctrine that limits the expectation of privacy in open farmland and meadows, New York's Court of Appeals, in People v. Scott, found that by posting No Trespassing signs around a field of marijuana, a farmer created an invisible fence to keep police from seeing his illegal enterprise. The Scott ruling suppressed more than 200 marijuana plants seized from Guy Scott's 165-acre farm. Turning traditional legal thinking on its head, the majority opinion in the case made a painstaking effort to discredit the U.S. Supreme Court's view that a farmer growing illegal substances in the open has no reasonable expectation of privacy.

In a scathing dissent, two judges made clear that the majority opinion's variance from the U.S. Supreme Court's commonsense search-and-seizure law was a step into the jurisprudential abyss. "The Court's declaration of independence from the Supreme Law of the Land . . . propels the Court across a jurisprudential Rubicon into a kind of Articles of Confederation time warp," wrote Judge Joseph Bellacosa. "The Court has not articulated 'sufficient reasons' . . .

warranting a departure from the United States Supreme Court's decisions. The test, as the Court now frames it, is not to be found in any settled method of analysis adopted in our prior decisions. but in this Court's new, exclusionary view that the United States Supreme Court's rulings do 'not adequately protect fundamental constitutional rights."' 

New York's high court, now wholly appointed by former governor Mario Cuomo, has consistently displayed a lack of concern for how its decisions may jeopardize the safety of police officers. No area has proved as contentious—or as unnerving to the officer on the beat—as the limitations the court has placed upon police during street encounters and pat-downs of suspects. Traditional U.S. Supreme Court analysis allows officers to frisk a suspect if they have reasonable suspicion that he has committed or is about to commit a crime. In the 1968 case of Terry v. Ohio, a unanimous Warren Court authorized officers to conduct a self-protective pat-down of a suspect they had seen casing a store. The cops found a firearm under the defendant's topcoat. Based on this case, state and federal courts began permitting police to take precautionary measures when they had reasonable suspicion that criminal activity was afoot, endangering officers or citizens. 

But the Court of Appeals sharply curtailed such efforts in its 1989 People v. Miguel Torres decision. In that case, police had received an anonymous tip that a homicide suspect was at a Harlem barbershop. The caller described the suspect, his clothing, and the car that he was driving and even mentioned that he was carrying a shoulder bag containing a gun. Detectives went to the scene, where they watched Miguel Torres, who fit the caller's description, leave the barbershop with a green shoulder bag. As he entered a car— also accurately described by the caller—detectives approached with guns drawn and removed Torres from the car. One detective reached into the car and picked up Torres's bag. He noticed that the bag was heavy and discerned the shape of a gun against the cloth. He opened the bag and found a small-caliber revolver with ammunition. Convicted of illegal firearms possession, Torres appealed to the state's highest court.

Several years earlier, the U.S. Supreme Court had adjudicated a case that posed similar issues. In Michigan v. Long, police testified that they had observed the defendant driving erratically. They followed his car, which soon swerved into a ditch. After checking the suspect for sobriety and taking license information, the policemen escorted him back to his car. Spotting a large hunting knife in the vehicle, one of the officers checked the rest of the car for weapons. He found a large cache of marijuana in the passenger compartment and in the trunk. The Supreme Court allowed the search, holding that the officer's inspection of the car for weapons was appropriate after he'd seen the knife. The Court reasoned that because the suspect could have reentered the car and had immediate access to other weapons, had they been there, the search was a simple matter of self-protection. 

But in the Torres case, the Court of Appeals rejected this commonsense approach on state constitutional grounds. The New York court held that the search of Torres's car and bag— even when it was reasonable to believe a weapon was present—was inconsistent with New Yorkers' expanded constitutional rights. New York State, the court decided, would not extend the Terry v. Ohio rationale for self-protective searches to any area beyond the body of the suspect, such as, in this case, the interior of a car and a bag beyond the suspect's immediate grasp.

The court in Torres had nothing but scorn for the judgment of police on the scene. The majority dismissed the officer's fear that the suspect could return to his car and grab a gun as a "far-fetched scenario." Yet a federal court foresaw exactly that scenario in an earlier case from South Dakota, in which the judges sensibly recognized the officers' need to secure the car for their own protection.

Even more disconcerting, one judge in Torres wrote a concurring opinion expressing his outrage that the detectives—who believed they were approaching an armed murder suspect—had their guns drawn. Such an action, he opined, was so "unreasonable" that it justified reversing the conviction, whether the search was lawful or not. 

By contrast, the federal courts have recognized that a mere pat-down of a suspect's outer clothing doesn't necessarily eliminate the danger to an investigating officer and nearby citizens. In Michigan v. Long, the U.S. Supreme Court recognized that a gun may be secreted in a bag at the feet of a suspect, under the driver's seat of a car, or anyplace within the exclusive control of the offender. The Supreme Court rightly declared that it would be " unreasonable" to prohibit a police officer from doing what was necessary to ensure his safety and that of bystanders. 

The Court of Appeals in Torres also failed to recognize another law- enforcement reality: a suspect may pose a threat to an officer who has just released him. Suppose an officer questions an armed and dangerous felon and, finding no probable cause to arrest him, lets him go on his way. Upon release, the suspect may be angry or fearful enough to reach for his concealed weapon and attack the officer. While the U.S. Supreme Court allows officers to protect themselves from such a threat, Torres keeps them within this zone of danger. 

The dissenting judge in Torres, Joseph Bellacosa, who also wrote the dissent in the Scott marijuana farm case, pointed to the everyday dangers of street encounters for police officers and suggested that the court's limitations on police work are like something seen through the looking glass. "The finely spun and bifurcated analysis of the majority may work in the cloister, but it does not work and is not warranted on the hard streets. The dangers may be 'far-fetched' to Judges in the protected enclave of the courthouse, but not to cops on the beat." Recognizing the U.S. Supreme Court's concern about extending privacy rights so far that suspects have ready access to weapons, Bellacosa continued: "It is not reasonable to hold that police officers—thrust into this kind of emergency situation where their official duty obligates them to act and where the difference between life and death is often measured in seconds—must differentiate on the spot between finely spun legal doctrines of authority to frisk. The majority rule allows a person, reasonably suspected of carrying a gun in a tote bag, to avoid a frisk of the container by merely dropping the bag through a car window and unnecessarily leaves the investigating officer holding a different bag of continuing jeopardy."

Sadly, Judge Bellacosa was alone in understanding—or choosing to recognize—the dangers of police work. His colleagues on the court seem all too willing to weigh their ideological agenda more heavily in their scales than the lives of police officers. 

Street encounters between police and suspects is a prime area in which the Court of Appeals has swept aside the commonsense judgment of cops and erected instead an absurd, hopelessly confusing framework of legal rules. Perhaps the strangest such case is People v. Howard, in which the court suppressed a handgun and heroin because police actually had chased a suspect who ran away from them when they tried to question him. The two cops, on patrol in an unmarked car, saw Archie Howard crossing a Bronx street, clutching a ladies' vanity case. The officers testified that he made "furtive" glances in their direction as they drove down the street. In an area known for burglary, this understandably was enough to arouse the cops' suspicion.

Howard kept looking over his shoulder at the officers as he crossed the street. Then, suddenly, he turned around—still glancing at the cops—and walked the other way. The officers turned their car around and drove next to him, asking if they could speak with him. He ignored them; they asked again. Howard then ran away from the police car through the city streets. One officer and a bystander gave chase, and during this pursuit Howard threw the vanity case to the ground. The cops caught Howard and recovered the case he had thrown away; inside, they discovered heroin and a loaded handgun. A trial court convicted Howard of possession of drugs and a weapon. 

In a four-to-three decision, the Court of Appeals decided that citizens who aren't being arrested or detained have the right to refuse to speak with police officers and that police have no right to pursue those who refuse to speak with them. Such pursuit, said the court, constitutes an illegal seizure of the person. Since the officers had no reason to believe that the defendant had committed a crime, the court decided they had no right to pursue him; his "furtive" glances and his fleeing at the sight of police did not constitute reasonable suspicion or probable cause. Thus, the court suppressed the heroin and the handgun. Even though Howard had thrown them away before the cops caught him, they had been obtained in the illegal seizure that the court construed the chase to have been. 

The Howard decision set forth a principle that a defies common sense: the mere fact that a suspect runs from police is not enough to justify pursuing him. An officer must stifle his instinctive reaction to chase, unless he can objectively show that he has actual knowledge or heightened suspicion of criminality, other than the fact that the person is running away from him. The judges said the officers should have kept Howard "under observation," although they failed to disclose how police officers can keep a fleeing suspect under observation without pursuing him. 

Because police must make on-the-spot decisions in ambiguous situations fraught with danger, they need simple rules that clearly define the limits of their authority and allow them to exercise common sense. Instead, in People v. DeBour, New York's Court of Appeals devised a convoluted, four-tiered set of rules designed to provide police, prosecutors, and judges with a category for every type of street encounter. Each tier describes a heightened level of suspicion, and prescribes a maximum police response. This set of rules, which defines "reasonable suspicion" and "probable cause" with Talmudic subtlety and complexity, is the framework the court used in coming to the Howard decision. Of course, in the real world, street encounters do not lend themselves to such intricate analysis, and judges and prosecutors—not to mention ordinary policemen—have found the lines separating these tiers" brain-numbingly confusing.

One senior Appellate Division fudge has described the Court of Appeals' analysis in these matters as "confusing" and ignoring "the reality of these rapidly escalating street encounters." That judge further opined that the court's deviation from U.S. Supreme Court precedent "succeeds only in improperly limiting the ability of law enforcement personnel to perform the duties with which they are charged." When an Appellate Division judge with years of experience—and with the ability to examine all the facts with hindsight—expresses frustration with judicial rules regarding encounters between police and civilians, what are the thoughts of a young patrol officer who must decide the appropriate response in a split second? 

Subsequent to the Howard case, the U.S. Supreme Court expressly rejected the idea at the center of Howard—the notion that an individual has been " seized" when he runs from an officer without prompting. In order for someone to be "seized" under federal law, either an officer must exert physical force or the suspect must submit to the officer's authority. Thus, the U.S. Constitution does not require suppression of a fleeing suspect's discarded property, like Archie Howard's gun and heroin, since no illegal seizure took place. In New York State, however, the Supreme Court notwithstanding, the Howard decision stands. 

In wielding the state Constitution as a sword of suppression, the Court of Appeals has lost sight of the original purpose of the exclusionary rule. According to both federal and state case law, the rule is grounded in the need to deter illegal police conduct. Prohibiting the use of evidence obtained in violation of individual rights gives police officers and prosecutors a powerful incentive to strive in good faith to keep within the Constitution's limits and not to use unconstitutional means to obtain evidence. The exclusionary rule was not intended to punish honest mistakes. It wasn't meant to penalize officers for taking actions that a reasonable, informed person, acting in good faith, might take, even though a court, second-guessing them in hindsight, might later judge those actions unconstitutional. That's why the federal courts have always allowed a "good faith exception" to the exclusionary rule. But New York State's Court of Appeals, by sweeping away the "good faith exception" to the exclusionary rule, has transformed the exclusionary from a check on police misconduct into a tool to protect criminals from the reasonable actions of conscientious cops. 

On this rejection of a good faith standard, the Court of Appeals, in People v. Melvin Johnson, reversed the conviction of a confessed murderer. Police had arrested Johnson on a warrant based on an informant's tip that he had fatally shot a store owner during a robbery. Even though Johnson told police that he had committed the crime, the Court of Appeals overturned his conviction because the informant did not meet the "reliability" requirements to support the arrest warrant. Because the arrest was improper, the court reasoned, the confession was tainted and the conviction invalid. 

In rejecting the informant's tip, the Court of Appeals chose to follow a federal precedent that the U.S. Supreme Court had already overturned. That old law, known as the Aguilar-Spinelli test, required courts to consider how reliable an informant is, and how he could know what he claimed to know, before admitting evidence that police had obtained by acting on his information. The High Court in Washington rejected the rule as too restrictive because it failed to take into account many other important factors, such as the officer's

experience in assessing an informant's credibility or the need for immediate police action. The Supreme Court's new rule created a commonsense standard requiring judges to evaluate probable cause based on the "totality of the circumstances" and on whether the police had acted in good faith. The New York Court of Appeals, in deciding to follow the rejected old standard as a matter of state constitutional law, reasoned that using the obsolete federal standard would in some magical way ensure " precision and predictability in judicial review". 

When the Supreme Court overturned the Aguilar-Spinelli test, it explicitly did so in furtherance of the exclusionary rule's underlying purpose. "If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments," Justice William Rehnquist wrote. "Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule. Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." 

New York's high court, however, adopted a rule of "strict liability": if the court holds a police action illegal, it must suppress the evidence that came from that action, even if the officer reasonably believed he was acting properly. Recognizing that the exclusionary rule was designed to deter illegal police conduct, the Court of Appeals nevertheless concluded that allowing the introduction of the confession into evidence would place a " premium" on illegal police action, creating an incentive for officers to engage in illegal conduct. This is nonsense: the good faith test targets precisely those officers who deliberately misuse their authority.

Extending the exclusionary rule beyond its original deterrent purpose can only inhibit effective police action. Well-intentioned cops are forced to guess—often in a split second—whether their actions are in compliance with the Court of Appeals' standards. And if officers' good faith isn't the issue, then the deterrent effect of the rule is diluted. Such an analysis doesn't protect future "victims" of these "abuses," since police officers will never know of their transgression until a court has defined the violation in retrospect. An officer may never have considered violating the rights of a defendant—and under federal law there may in fact be no violation. Such rights come into existence only when state judges snatch them from thin air. 

The Court of Appeals' rejection of the good faith exception also reflects a double standard. That a reasonable, informed police officer didn't intend to violate a suspect's rights makes no difference to New York's courts. But in order to win a conviction, prosecutors must show that the defendant intended to commit a crime.

Again and again, New York's highest court has 48 rejected the U.S. Supreme Court's sensible standards in pursuit of a political agenda. In the name of protecting New Yorkers' "human rights and civil liberties," the court has vacated the convictions of firearms smuggler Marrhonda G. armed felons Benigno Class and Miguel Torres, drug dealer Guy Scott, confessed killer Melvin Johnson, and many others. Lower courts enforcing these precedents, and prosecutors acting on the knowledge that evidence will be suppressed, have had to free many hundreds of dangerous offenders. At a time when violent crime is among New Yorkers' top concerns, it is outrageous that the state's high court would ignore the cries of help from crime victims, past and future.  The court's zeal to extend "civil liberties" is profoundly misguided, for the more such rights New Yorkers "enjoy," the more they must live in fear. The court ought to consider just who reaps the benefits of its decisions. The measure of its success or failure is the level of violent crime in our streets.

Sadly, there's little New York's citizens can do to ameliorate the damage that the Court of Appeals has done. Governor Pataki has called on the Legislature to enact criminal justice reforms. But most of the court's decisions are based on the state Constitution. Amending the Constitution takes years: two successive legislative sessions must approve any amendment before New Yorkers can vote on it. And the electorate has no power to remove Court of Appeals judges before their 14-year terms have elapsed. If none of the current judges retire early, Cuomo appointees will continue to make up the court's majority until 2003—two gubernatorial terms hence. The court can continue to pursue an ideological agenda long after its rejection by the voters.

The power to make immediate change rests squarely with the Court of Appeals itself. Even though the court took ten years to reject Bartolomeo's protections for multiple offenders, it did so in a single opinion. The court could easily revise its other pernicious decisions—if it had the will to do so. The Court of Appeals must ask whether New Yorkers can continue to bear the cost of the “rights” it so zealously presses up them.

 

 

 
The New York State Court of Appeals has turned the 'exclusionary rule' into an all-purpose protection for wrongdoers.
City Journal Winter 1996.
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