Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.