This was originally posted on the SGR Blog.
Court of Appeals Disagrees (4-3)
Our Courts regularly hold evidentiary hearings to determine whether evidence seized by the police without a warrant should be suppressed. A recent case reached our State’s highest Court after the Supreme Court denied a motion to suppress drugs found during a traffic stop– and the Appellate Division agreed. Four Judges of the Court of Appeals affirmed in a brief opinion. But three Judges dissented in a far more detailed recitation of the facts followed by an even more comprehensive legal rebuttal.
Reginald Blandford appealed the denial of his motion to suppress marijuana found during a traffic stop of his vehicle. In the course of a stop predicated on the observation of traffic violations—the legality of which (according to the majority decision) Blandford did not contest before the Court of Appeals.
The Court found that Blandford consented to a search of the backseat of his vehicle. Instead of conducting that search, the police officer walked his dog around the car’s exterior, and, in mere seconds, the dog alerted to the trunk. Blandford argued that law enforcement lacked a founded suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior canine sniff search.
A canine sniff search of a vehicle’s exterior is lawful if police possess a founded suspicion that criminal activity is afoot. Determinations regarding the existence of a founded suspicion of criminality involve mixed questions of law and fact. Therefore, the appellate review was “limited to whether there was evidence in the record supporting the lower courts’ determinations.” And that rule applied where the facts were disputed, where credibility was at issue, or where reasonable minds might differ as to the inferences to be drawn.
Based on the evidence presented at the suppression hearing, including the officers’ observations prior to and during the stop, there was record support for the determination that a founded suspicion of criminal activity existed. Thus the stop was beyond further review.
WILSON, J. and two other Judges (dissenting):
When people meet, they often shake hands. If more familiar, they may clasp hands and bring their bodies momentarily together, tapping each other on the back. Sometimes, people fully embrace, acknowledging their companionship before beginning a conversation or parting ways. Those common greetings are among the most basic and bedrock forms of human interaction, more profound than words. They are how people greet each other, acknowledging their shared connections as acquaintances, friends, or family.
On an ordinary November afternoon, outside the On the Way convenience store in Elmira, New York, Reginald Blandford greeted someone this way. Instead of seeing his handshake or hug as a greeting, however, two officers interpreted his actions as a drug sale. They already suspected Blandford might be involved in drug sales and they knew the On the Way store was in an area where drug sales occurred.
A state trooper followed Blandford as he drove away. When he noticed that one of Blandford’s two rear license plate lamps was out, the trooper pulled Blandford over. The trooper then relied on Blandford’s behavior outside the On the Way store, along with other observations before and during the traffic stop, to determine he had the appropriate level of suspicion to detain Blandford. At the same time, he brought a drug-detection dog to sniff the exteriorof Blandford’s car. That canine sniffled to the discovery of marijuana in the car.
Three Judges dissented and would have suppressed the evidence because both the New York and the United States constitutions protected individuals from such intrusions on their reasonable expectations of privacy under those circumstances.
Blandford caught the attention of law enforcement before the afternoon of his arrest. Investigator Backer “knew [Blandford] was involved in the illegal sale of narcotics” from “general police knowledge.” Backer attempted to summon a state trooper to stop Blandford on the afternoon of the arrest, whom Backer believed was driving without wearing his seatbelt. No trooper arrived before Blandford parked at the On the Way convenience store, which Backer described as a “trouble spot in the city.” Backer radioed Trooper Shive, describing Blandford’s car, noting the alleged seat belt infraction, and telling Shive that he thought “there may be some criminal activity afoot” outside the On the Way store. Shive understood that to mean actions that might suggest potential “hand-to-hand dealing,” but that “could be just as simple as loitering.”
By the time Shive arrived, Blandford was inside the store. Several other people were outside the store. After a few minutes, Blandford emerged. As Blandford walked to his car, Backer observed him doing “a handshake, type hug thing” before entering the driver’s side of his car. Shive similarly observed “handshakes, high fives, hugs, whatever,” along with the “exchanging of [unheard] verbiage.” Though the behavior “in and of itself” did “not necessarily mean anything,” Shive’s suspicion was aroused.
Shive and Backer observed Blandford leaving the store and sitting in Blandford’s car’s front passenger seat. Shive began following Blandford’s car– and he noticed that one of its two license plate lamps was out, a violation of Vehicle and Traffic Law § 375 (2) (a) (4) under certain conditions. Shive activated his emergency lighting. Blandford then did a “slow roll response,” where his vehicle “didn’t immediately come to a stop.” While “the slow roll was going on,” Shive saw Blandford make “furtive movements” inside the car, “ducking down in his seat, moving about within his seat, and at a point reaching over the passenger’s seat, doing something appearing to be down in the floorboard area and/or the backseat,” though he could not see physically where Blandford’s final reach was.
Blandford stopped, and Shive had him exit the car to conduct a roadside interview. Blandford explained that he was giving the person in his car, Gerdeep Singh, a ride home and that Singh’s family owned the On the Way store. Blandford also mentioned his wallet, money, and going to the store to make purchases. Despite those innocuous responses, Shive felt that he and Blandford “kind of talked in a circle.” He recognized that giving Singh a ride home and going to the On the Way store to buy items were plausible explanations for why Blandford went to and exited the store.
Nevertheless, Shive found it suspicious that Blandford said he went to the store to buy something but left with no visible purchases. Shive decided he had a “founded suspicion that criminal activity was afoot” and asked Blandford for consent to search his vehicle. Blandford gave “mixed consent,” granting Shive permission to search the backseat area, his driver’s seat area, and part of the passenger compartment only—the very areas in which Shive said he saw “furtive movements.” Shive looked into the car. The passenger compartment produced nothing of interest; he did see Blandford’s wallet in the rear. Finding no hint of criminality so far, Shive did not tell Blandford he was free to go. Instead, he retrieved his drug-detection dog and had the dog sniff the exterior of the car. The dog alerted to the trunk, leading the trunk to be opened. Once the trunk was opened, the dog alerted to a bag inside the trunk. Shive then conducted a warrantless search of the bag, in which he found marijuana. He released Singh and detained Blandford.
Blandford was charged with one count of criminal possession of marijuana in the second degree. He moved to suppress the marijuana, arguing that Shive did not have the proper level of suspicion to detain him to conduct the canine search of his car. After the Court denied suppression, Blandford pleaded guilty to one count of attempted criminal possession of marijuana. He was sentenced to 1.5 years in prison, in a “shock incarceration” program, followed by two years of supervision.
Blandford appealed. The Appellate Division, with one Justice dissenting, affirmed, holding that “taken together, the trooper’s observations of defendant . . . created a founded suspicion that criminal activity was afoot” and that Shive, therefore “properly extended the stop beyond its initial justification” to “conduct the canine search.”
When Shive was asked why he stopped Blandford, he answered under oath: “I’m conducting a pretext stop.” Without any real evidence, but just “general police knowledge.” The officers believed Blandford was selling marijuana, so they watched him. They could almost stop him for a seatbelt violation, but Shive and his dog did not arrive in time. When following him after he left the store, it was their good fortune that one of his two license plate lights was not illuminated, giving Shive a basis to stop him. Blandford consented to let them search part of his car in a further bit of luck. In a bit of bad luck, that produced no results. But they ended up getting what they had wanted: the ability to have a drug detection dog sniff the car, the result of which gave them a reason to arrest Blandford and seize the evidence against him.
Of course, Blandford’s car was parked for a while, in plain view of Shive and Backer, outside the convenience store. The store was known as a trouble spot. A handshake or hug is sometimes used to convey drugs. Why couldn’t Shive have just walked up with his dog and had the dog sniff the car? Well, the Fourth Amendment would prohibit that. How about the handshake and hugs, the passenger, and Blandford exiting the store with no purchases — all that happened before Blandford left the parking lot — why not just take a stroll by and let the dog get a good whiff? Sorry, the Fourth Amendment still would have prohibited that. Once Blandford’s car was moving again, the officers needed some basis to stop it. This time, one infers that Blandford was wearing his seatbelt because the officers did not stop him on that basis and issued no citation for that infraction. Driving with one non-functioning license plate light bulb is a traffic infraction, so Shive had a basis to stop the car to issue a citation. Shive did not stop the car because he wanted Blandford to get a new lightbulb.
Blandford’s case illustrated a troubling aspect of police behavior: law enforcement can pursue someone they suspect of criminal behavior without a founded suspicion of criminality, wait for the right moment to stop that person for a minor traffic infraction, and then serve up a stew of flavorless facts to transform a stop in which they have no intrinsic interest into the search they sought before they had any evidentiary basis to suspect wrongdoing. Although the case illustrated that problem, according to the dissent, its resolution should be much simpler than a resolution of the systemic problem. Here, the officers did not possess information sufficient to justify the canine search.
The police may stop a vehicle 30 minutes or later after sunset if one of its license plate lights is not working. The cost/benefit calculus of permitting police stops on that basis may be questionable—but that was a legislative choice.
The first traffic infraction allegedly observed by law enforcement was Blandford driving without a seatbelt while he was on his way to the convenience store. The Appellate Division upheld the denial of suppression in part because Shive was entitled to rely upon Backer’s previous observation that Blandford was driving without a seatbelt. This separate traffic violation also provided probable cause for Shive’s stop. That analysis was incorrect. Shive could ordinarily rely on Backer’s information about the alleged seatbelt violation to pull Blandford over. But Blandford parked and exited his car before Shive arrived. Once he left his car, entered and exited the store, and began driving anew, the prior seatbelt infraction could not be used to justify a later stop. The Appellate Division’s rationale would allow officers to pull someone over hours or even days after they initially observed that person driving without a seatbelt or committing any other traffic infraction.
Shive may have understood that he could not stop Blandford based on the prior seatbelt infraction. Accordingly, Shive followed Blandford in the hope of finding a new traffic infraction or some other basis to stop the car. New York’s Vehicle and Traffic Law states that motor vehicles, except motorcycles, are required to have a white light illuminate their license plate for at least fifty feet from the car’s rear under certain conditions. Those conditions include when the vehicle is driving on a public highway from one half-hour after sunset to one half-hour before sunrise, “or . . . at such other times as visibility for a distance of one thousand feet ahead of [the] motor vehicle is not clear”. On the evening that Shive pulled Blandford over for his allegedly unilluminated license plate, a half-hour had not yet passed since sunset. Nevertheless, the Appellate Division credited Shive’s testimony that “it was fully dark at the time of the stop,” on which basis the Appellate Division found that it was “‘objectively reasonable’ for the trooper to conclude that the requisite visibility did not exist and that a traffic violation had been committed.”
Thus, the legality of this stop could not be justified by the prior seatbelt infraction or by more than 30 minutes passing from sunset; it turned not on Shive’s testimony that forward visibility was less than 1000 feet, but on the Appellate Division’s conclusion that it was reasonable to believe that, if it was “fully dark,” visibility was less than 1000 feet.
The dissent concluded that the stop of Blandford was pretextual. And Trooper Shive swore it was. The officers guessed correctly that Blandford possessed drugs; whether a seatbelt infraction or license plate bulb failure or, some other flaw existed was irrelevant to the officers, so long as it provided a basis to stop his car. Pretextual, however, does not mean unlawful.
Though the stop was lawful, the canine search for which Shive prolonged the stop violated Blandford’s constitutional rights under the New York and federal constitutions.
Under the New York Constitution, the level of suspicion required before law enforcement can conduct a canine search of the exterior of a lawfully stopped vehicle is a “founded suspicion that criminal activity is afoot.” The Appellate Division held that “taken together, the trooper’s observations of defendant engaging in behaviors commonly seen in outdoor drug transactions at a location known for such activity, his ‘slow roll response’ and furtive movements after the trooper initiated the stop and his evasive, inconsistent answers to the trooper’s questions created a founded suspicion that criminal activity was afoot.” For the Appellate Division, Shive, therefore, properly extended the stop beyond its initial justification to conduct the canine search. Because determinations regarding the existence of founded suspicion of criminality involve mixed questions of law and fact, the standard of review was “whether there was evidence in the record supporting the lower courts’ determinations.” In affirming the Appellate Division, the majority held that “[t]here is record support for the determination that a founded suspicion of criminal activity was afoot” justifying Shive’s canine search. The dissent disagreed because the facts relied upon by the lower courts did not support a founded suspicion that Blandford was engaged in criminal activity.
Blandford’s handshake or hug with at least one person outside the convenience store did not support any suspicion of criminality. Neither officer observed Blandford deliver or receive contraband when they saw him greet at least one person outside the store. Both acknowledged that his conduct could have been completely innocent. Unless the police may detain anyone who hugs or shakes hands outside of a store known to the police to have been the site of drug transactions, those facts cannot be a basis for stopping Blandford. Such a rule would fall more harshly on communities of color and low-income communities: shaking hands as you enter Saks will likely not result in your detention. Because neither Shive nor Backer observed any exchange of contraband, it was improper for the trial court to consider Blandford’s handshake or hug as a factor supporting its finding that there was a founded suspicion of criminality afoot justifying Shive’s canine sniff.
And the record did not support a finding that Blandford gave “inconsistent answers to the trooper’s questions.” According to Shive, Blandford told him that he was giving Gerdeep Singh, his fellow passenger, a ride home and that Singh’s family owned the store. Nothing in the record suggested those statements were untrue. Blandford talked about his wallet and money, and he indicated that he was in the store to buy items. The trooper observed his wallet in the car, which matched Blandford’s statement that his wallet was in the back of the car. Because Shive “didn’t observe anything that [Blandford] bought,” he claimed that he and Blandford “just kind of talked in a circle.” Again, nothing is inconsistent or suspicious about entering a store and leaving emptyhanded. Perhaps the store did not have what Blandford wanted. Perhaps it cost too much. Perhaps he got diverted by giving Singh a ride home. And even if Blandford’s statements were inconsistent, which they were not, discrepancies were not enough to give rise to a founded suspicion of criminality afoot. Blandford’s statements were not inconsistent, and the Appellate Division erred in factoring his statements into its ultimate finding that a founded suspicion of criminality afoot existed for Shive to conduct the canine search.
All that remained was Blandford’s “slow roll” while making “furtive movements.” Perhaps those observations would justify stopping Blandford, but that was not at issue because he was stopped for a non-functioning license plate lightbulb. Shive concluded that the slow roll and furtive movements around the floorboards and back made him suspicious that criminal activity was afoot. The issue here was whether at the time Shive determined to continue the stop and fetch his drug-sniffing dog, he had a reasonable suspicion that criminality was afoot. At that point, Blandford had consented to a search of the passenger section of his car. Shive found no contraband. He found Blandford’s wallet in the rear, which would explain the “furtive movements” and slow roll. He learned that Blandford was driving home someone related to the owner of the On the Way store. Those facts should also have been taken into account in determining whether at the time the trooper decided to prolong the stop and conduct a canine sniff, he had a founded suspicion that criminality was afoot. Whatever suspicions he might have had from the slow roll and furtive movements had proved unfounded. The officers pointed to no fact suggesting that drugs might have been squirreled away in an inaccessible part of the passenger compartment or the trunk. Instead, the facts known to Shive after he conducted the search and spoke with Blandford suggested that no criminal activity was afoot.
The United States Supreme Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made the [U.S.] Constitution’s shield against unreasonable seizures.” The Court specifically held that a canine sniff conducted by an officer after a traffic stop was completed, without the owner’s permission, was improper. The Court noted that “[a]n officer may conduct certain unrelated checks during an otherwise lawful traffic stop” but “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” A canine search for drugs is not among the ordinary inquiries incident to the traffic stop.
Thus, the critical question was not whether the dog sniff occurred before or after the officer issued a ticket but whether conducting the sniff prolonged — i.e., added time to — the stop. Because the officer in the Supreme Court case prolonged the traffic stop to conduct the canine sniff, the Court held that there needed to be reasonable suspicion of criminal activity to justify detaining the driver beyond completion of the traffic infraction investigation. Thus, under the federal constitution, an officer must have reasonable suspicion of criminal activity to justify prolonging a traffic stop to conduct a canine search of an automobile.
Determining whether Shive’s canine search passed muster under that test involved two central questions: first, whether Shive prolonged the traffic stop to effectuate the canine search; and second if he did, whether he had a reasonable suspicion of criminal activity to justify it. There was no question that Shive prolonged the stop to conduct the canine search—he had to return to his vehicle to get the dod, with Blandford not free to leave in the interim. And the Appellate Division made a factual finding that the trooper “extended” the traffic stop “beyond its initial justification” to conduct the canine search.
Thus, the issue devolved to the second question: did the trooper have a reasonable suspicion to warrant a canine search? The federal “reasonable suspicion” standard is higher than the standard under the New York Constitution for police to make inquiries — “a founded suspicion that criminal activity is afoot.” And implicated the higher level of suspicion (required for police officers to complete a forcible stop and detention) as a “reasonable suspicion that a particular person has committed or is about to commit a felony or misdemeanor.” Since the record did not support a finding that there was a founded suspicion, it also could not support a finding that there was a reasonable suspicion, which is a higher standard.
Because the federal standard required a higher level of suspicion than the State, which was decided five years before the federal standard, the New York standard could no longer be good law. Whether articulated in that way or, instead, by saying that the canine search here was unlawful under the federal standard but not the New York standard did not have any practical importance.
Blandford’s brief raised several policy considerations about police practices in communities of color, arguing that “[t]his case is about . . . how we as a society want to treat persons of color in their neighborhoods and when they step into cars.” He contended that existing laws, and their judicial interpretations, have led law enforcement officers to “stitch together disparate innocuous facts” to satisfy the founded suspicion standard they need to meet for certain intrusions. An objective reader of the facts would have to conclude that the officers here were not concerned that Blandford would be injured because he was not wearing a seatbelt or that his license plate could not be read with only one working lightbulb. Instead, they suspected—for unknown reasons –that he was dealing drugs. It was not reasonable to believe their suspicion was based on his hugs, his fruitless shopping at a convenience store, or his giving a friend a ride. After searching his car and speaking with him, it could not have been based on a slow roll or furtive movements. It must have been based on something else—something they suspected well before that November afternoon. Because that “something else” was not in the record, the dissent was left to wonder how benign or pernicious that suspicion might have been.