When the police make what appears to be a trivial traffic stop, the court still has to make a proper analysis lest the court become a rubber stamp for the police. People v. Davis, 2024 NY Slip Op 24041, 2024 N.Y. Misc. LEXIS 644 (Queens Crim Ct. Feb. 15, 2024):
The court’s responsibility to meaningfully review the factual basis for police conduct in situations like this is critical to preserving “the interest of individuals in living their lives free from governmental interference.” (People v. Howard, 50 NY2d 583, 589, 408 N.E.2d 908, 430 N.Y.S.2d 578 [1980]). Automobile stops alleging excessively tinted windows are common and can have major consequences. (See, e.g., Alysia Santo, The Marshall Project, When ‘Broken Windows’ Meets Tinted Windows, Aug. 17, 2015, https://www.themarshallproject.org/2015/08/17/when-broken-windows-meets-tinted-windows [noting that in 2014, the NYPD issued an average of 204 tickets for tinted windows each day, every day]; see also id. [“Critics see a law that disproportionately targets people of color and provides a pretext to churn revenue and fish for other violations or crimes.”]; David D. Kirkpatrick et al., Why Many Police Traffic Stops Turn Deadly, NY Times, Oct. 21, 2021 [“The problem is especially acute at so-called pretextual stops, [Kalfani Ture, a criminologist and former police officer] argued, where officers seek out minor violations — expired registration, a dangling air freshener, tinted windows — to search a car they consider suspicious.”]; Philip V. McHarris, The Nation, I Experience a Hollowing Fear Any Time I’m Stopped by Police, Nov. 19, 2020 [“Gutting the Fourth Amendment has turned tiny traffic violations into abusive traffic stops and coercive searches for millions of Black drivers like myself.”]).
In fact, here the police intrusion based upon purportedly excessive tints escalated into violence against a New Yorker who was sitting peacefully in his own lawfully parked car. At the very least, a suppression court must fulfill its responsibility to determine whether an officer’s conclusion that the tints were unlawful was reasonably warranted. The alternative—simply adopting the officer’s conclusion—reduces the court to a rubber stamp.
Nonetheless, in December of 2022, the Appellate Term for the Second Department’s 2nd, 11th, and 13th Districts concluded otherwise. (People v. Neklatov, 78 Misc. 3d 1, 183 N.Y.S.3d 686 [App. Term, 2d Dep’t 2022]; but see id. at 6 [Weston, J., dissenting] [arguing that an officer’s mere statement that he observed “excessively tinted windows” is alone insufficient because it is a conclusion that requires factual support]). This court is required to follow that decision. For that reason, and for that reason alone, the People here meet their burden to establish probable cause of a traffic violation and justification for the officers’ temporary detention.
Constrained to find that the officers’ detention was lawful, the court is likewise constrained to find that there was probable cause for the arrest. If the detention was lawful, Mr. Davis was not entitled to resist the officers’ commands to lower his window or open his door. As a result, the People established probable cause for obstructing governmental administration.
[Referred to in the Treatise as the reviewing court become a rubber stamp for the police. 2 Search and Seizure § 54.04 n. 8, citing Aguilar at 111 (“Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.”)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)