In the Winter issue of City Journal, Family Court chief prosecutor Peter Reinharz decried the New York State Court of Appeals for imposing higher standards for the admission of evidence in criminal trials than those accepted as reasonable by the U.S. Supreme Court ("The Court Criminals Love"). Sure enough, the Court of Appeals did it again in May in the case of People v. Gonzalez.

Eyewitnesses to a brutal shooting in the Hunts Point section of the Bronx had fingered William Gonzalez and Sean DeJesus as the culprits. With Gonzalez in custody, detectives went to DeJesus' apartment, where they were admitted by his sister, Kim. Informed that her brother was wanted in connection with a shooting, she told the officers that he had shown her daughter a gun and that Gonzalez had also been staying in the apartment. Kim agreed to let them see her brother's room and pointed out his bed and Gonzalez's. Having patted down Gonzalez's bed, one of the officers lifted the mattress, where he discovered a blue canvas duffel bag, zipped closed. Inside he found a sawed-off shotgun and several cartridges—the evidence that the Court of Appeals ruled could not be used against Gonzalez.

The court did not dispute that Kim DeJesus had consented to a search of the apartment. Rather, it relied on a finer doctrinal point. In a series of cases, the Supreme Court has held that a third party's consent to the search of premises does not extend to a closed container if that person does not enjoy "mutual access" to it. The court decided that the officer had opened the duffel bag without consent and had thus violated the Fourth Amendment's prohibition of "unreasonable searches and seizures."

This application of the doctrine was ludicrous under the circumstances, however, and overlooked far more relevant Supreme Court rulings. The crucial point is that as soon as the experienced officer picked up the duffel bag, he could tell that the object inside could be a firearm. In the context of his investigation, this was quite enough to establish what the Constitution calls "probable cause." At that moment, consent became irrelevant.

But it's a sign of changing times that, in defending its decision, the Court of Appeals went out of its way to cite an occasion almost 15 years ago when Justice William Rehnquist had joined an opinion applying the closed-container doctrine—as if to say, "See, conservatives support this, too." It would have done better to observe that Chief Justice Rehnquist later concurred in the 1993 case of Minnesota v. Dickerson, which established that such a discovery of evidence "through the sense of touch" does not offend the Fourth Amendment.

The Court of Appeals gave further signs that the times may be changing. On the same day that Gonzalez was announced, the court ruled in favor of an officer who had reached into a young suspect's jacket and removed a concealed handgun from his waistband, allowing a second officer's suspicion to be imputed to the first. That day the court also upheld the police's search of a bag of narcotics that a drug dealer had stashed in an alley while he plied his trade on the nearby street. It decided that the suspect could have no "reasonable expectation of privacy" in these circumstances.

Experienced court-watchers stress that the two cases could have easily gone the way of Gonzalez. It is tempting to wonder whether the intense publicity surrounding recent judicial foolishness in the area of criminal justice may not be concentrating some minds even within the aristocracy of the robe. The mild but inexorable power of public opinion may be enough to curb judicial extravagance without compromising judicial independence.


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