Monday, February 25, 2013

People v. Pealer: Time for a Second Look at Pretextual Stops?

As any criminal defense attorney and prosecutor knows, in determining the legality of a stop, a police officer's motivation in stopping the vehicle is irrelevant.  The stop will pass muster, and the evidence yielded therefrom will not be suppressed, so long as the officer can articulate an objectively reasonable basis for stopping the vehicle.  See Whren v. United States, 517 U.S. 806 (1996); People v. Robinson, 97 N.Y.2d 341 (2001).  

From the court's standpoint, the difficulty of applying a subjective standard for assessing the legality of a vehicle stop is obvious, as it would burden the  lower courts with the task of finding, as matter of fact, the officer's real motivation in stopping the vehicle.  By contrast, an objective standard is very easy to apply.  A broken taillight, an excessively tinted window, an illegal turn, or a failure to signal, among the other countless violations that sit on the books, all constitute objective - and, hence, legitimate - reasons to stop a vehicle.  Suffice it to say that an objective standard has benefited police officers.  With little more than a hunch that a vehicle contained contraband, police officers could stop the vehicle for the most minor of infractions, and the evidence yielded from the stop could be admitted into evidence. 

Since then, however, the courts, and the greater public, have begun to scrutinize police stops from both a legal and policy matter.  The NYPD's liberal use of stop and frisks, and its aggressive enforcement of the Clean Halls program, the system by which private landlords formally grant access to the police department so they may root out suspected drug activity, have angered the public, especially those living in the poorer areas of the city.  

In this environment, it was only a matter of time before one police officer pushed the outer boundaries of Whren and Robinson, and a judge would do more than raise his eyebrow. In People v. Pealer, a case the Court of Appeals decided just last week, the police officer pulled over the defendant's vehicle after noticing a Finger Lakes Community College sticker in the rear window, a violation of Vehicle and Traffic Law 375(1)(b)(i), which provides that "[t]he use or placing of posters or stickers on windshields or rear windows of motor vehicles other than those authorized by the commissioner, is hereby prohibited."

The legality of the stop was not at issue since the Court addressed the question of whether, under Crawford v. Washington, the admission of the calibration reports, which measure the accuracy of the breathalyzer instrument, could be admitted into evidence in the without the in-court testimony of the technician who created the records.  The court held in the affirmative, but what caught my eye was Judge Pigott's dissent in which he wrote that the stop failed to pass muster under Whren and Robinson because the display of the window sticker constituted only a de minimis violation of the Vehicle and Traffic Law.  Judge Pigott pointed out that the statute is rarely, if ever, enforced, as evidenced by the untold number of vehicles that currently travel on the road each day and which display a school sticker on the read window as a show of school spirit and pride.  

This, in turn, prompted Judge Smith to write separately to explain that, while he agreed that the reason for the stop was "as transparent as the sticker," "under Whren and Robinson that does not matter." Judge Smith argued that the Court cannot avoid the more unpleasant effects of Whren and Robinson by characterizing certain violations of the Vehicle and Traffic Law as de minimis.  In Judge Smith's view, Whren and Robinson bestow on trial courts a measure of predictability, which will be lost if courts are burdened with the task of deciding whether an officer exercised good judgment in enforcing the Vehicle and Traffic Law.

Will this exchange foreshadow change in the area of pretextual stops?  Perhaps it is too early to tell.  One thing, though, is for sure: in New York, where police stops have come under greater scrutiny, the environment is ripe for the Court to reexamine its precedents on pretextual stops.  

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