Tuesday, September 17, 2013

By Jill Paperno
Second Assistant Monroe County Public Defender

As the weather turns, it appears that the Rochester Police Department is embracing new methods of engaging in pretext stops.  So we see less stops for walking in the street when the sidewalk was available, and failure to have a bell on a bike (which are only ticketed in certain parts of the city as far as I can tell – I haven’t seen any in the Browncroft, Park Avenue or South Wedge areas, for example).  And we are now becoming familiar with the requirements for when to signal a turn (also apparently not an issue in the aforementioned areas).  Unfortunately, New York law permits pretext stops and turns a blind eye to the racial disparity in how the stops are conducted (People v. Robinson, 97 N.Y.2d 341, 346 [2001])

The most common pretext stop I have seen recently is the “failure to signal a turn within 100 feet.”  These are cases in which our clients have signaled a turn, but the officer claims it wasn’t soon enough.  This violation is set forth in 1163(b) of the Vehicle and Traffic Law, which states that:
(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section eleven hundred sixty, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided. (b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. 
Of course, sometimes people decide to turn at the last minute.  And many of us do not signal a turn prior to 100 feet, or do not even know what the 100 feet distance looks like.  And I’m guessing, if you live in a suburb (or the aforementioned areas) you can turn at the last minute and not know how to measure 100 feet without getting stopped.  But there are segments of our population who are stopped every day, and then detained for lengthy periods, as police create excuses for searching their vehicles following the failure to signal prior to 100 feet.  (My favorite recent excuse for a search - the passenger was moving his hands toward the center console while the car was being driven!)

Although police may stop a vehicle when there is a legitimate traffic violation, their authority to detain the vehicle and search are not unfettered.  We often cite People v. Marsh when opposing these extended stops and searches.  In Marsh the Court of Appeals stated:
The search for weapons is a special exception to the proscription against warrantless searches, and it should not be extended beyond its purpose of securing the safety of the officer and preventing an escape. A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted. We can only conclude that, even though the ‘rules of criminal law are generally applicable’ to traffic violations (People v. Byron, 17 N.Y.2d 64, 66), the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction. (cites omitted).
People v. Marsh, 20 N.Y.2d 98, 101-02 (1967)
Once the police stop a vehicle for a traffic violation, if there is no additional basis for stopping, detaining and searching, the police must issue the traffic ticket and let the person continue on his or her way.  In People v. Banks the Court of Appeals stated:
A traffic stop constitutes a limited seizure of the person of each occupant (cites omitted). For a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance (emphasis added, cites omitted) . While the stop was justified in the instant case, the length and circumstances of the detention were not. Consequently, the evidence ultimately seized must be suppressed (cite omitted). 
Trooper Cuprill’s observations of Jones’ seat belt violation justified the initial stop of Jones and defendant in the vehicle. However, once Cuprill’s license and stolen vehicle radio check came back negative and he prepared the traffic tickets for the seat belt violations, the initial justification for seizing and detaining defendant and Jones was exhausted (cite omitted). The Trooper nevertheless retained their licenses, effectively forcing them to remain at the scene while he awaited the appearance of the backup Trooper he had requested. This continued involuntary detention of defendant and Jones and their vehicle constituted a seizure in violation of their constitutional rights, unless circumstances coming to Cuprill’s attention following the initial stop furnished him with reasonable suspicion that they were engaged in criminal activity (cites omitted)Contrary to the holdings of the courts below, defendant’s nervousness and the innocuous discrepancies in his and Jones’ answers to the Trooper’s questions regarding the origin, destination and timing of their trip did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality (cites omitted).  
People v. Banks, 85 N.Y.2d 558, 562 (1995).

In People v. May, the Second Department further detailed what police may and may not do during a traffic stop, citing Banks:
To begin, the officers’ initial approach of the Impala, their request for limited information and documents, and their detention of the vehicle for purposes of calling in a computer check and drawing up a summons were proper based upon the traffic violation (cites omitted). However, a traffic stop constitutes a limited seizure of a vehicle’s occupants (cites omitted), and the length of any subsequent detention must be reasonably related to the circumstances which first justified the stop (cites omitted).
In Banks, the Court of Appeals reversed a denial of the defendant’s suppression motion where the defendant’s car was pulled over on the Thruway for a seat belt violation, and thereafter detained while the Trooper who stopped them called for back-up to search the vehicle. The Court held that
the defendant’s nervousness and the innocuous discrepancies between the driver’s and the passenger’s answers regarding the origin, destination and timing of their trip did not provide a basis for reasonable suspicion of criminality (cite omitted). In Barreras, this Court reversed the denial of the defendant’s suppression motion, where the defendant’s car had been pulled over for going through a stop sign, and although his papers were in order, the officer, suspecting further illegality but unable to supply an objective reasonable foundation for his suspicion, continued his questioning and then asked for permission to search the car. We held that “ ‘[o]nce defendant’s papers were all found to be in order, the officers, without more, were obligated to issue the stop-sign summons and allow defendant to resume his journey, i.e., the initial justification for seizing and detaining defendant ... was exhausted’ (253 A.D.2d at 373, 677 N.Y.S.2d 526).” 
People v. May, 52 A.D.3d 147, 150-51 (2008).

What can be done do to challenge these stops short of a New York City style class action?  Investigate and litigate.

First, when you get one of these cases, check to see if there are any city surveillance videos in the area, and even perhaps red light cameras.  To determine whether there is an RPD video camera nearby, contact Corporation Counsel and email your request to the attorney who handles RPD matters, asking whether there was a camera in the area, and asking that any video be preserved.  You should do this as soon as possible, as the video is only preserved for a limited time.  You must then obtain a judicial subpoena duces tecum to obtain the video.  Even if the video does not reflect the signal or lack of signal, it might reflect other facts inconsistent with the officers claims about your client’s conduct.

Next, consider having an investigator measure the distance of 100 feet in the area, and getting aerial views of the area.  Check the local businesses to see if they have video cameras.  I am guessing that the police are overestimating the 100 feet distance.  So, if Wikipedia is right and a full size car is 197 inches, then the distance is about 6 car lengths.  Then note the buildings and other landmarks in the area.  Can the officer identify where the signal was first turned on?  Of course they can’t - first, because they won’t remember the area, and second, probably, because your client actually did signal enough in advance.

Make sure you move for the suppression hearing.  This is going nowhere if you aren’t moving to suppress whatever was seized.  And remember, if your client is a passenger, you have a right to challenge the stop of the car.  (People v. Millan, 69 NY2d 514).

At the hearing,  consider introducing the overhead map of the location and having the officer mark where the stop occurred if you believe the officer cannot do it, or if the officer is likely to estimate incorrectly.  Have your investigator ready to testify to the location of the 100 feet mark.  Consider whether there are other reasons the defendant may not have signaled - they had just decided to turn for some reason (not to do with the police following them - left the potato salad on the counter, forgot to put the garage door down, hankering for an ice cream).  If you have videos, review them before the hearing and listen for whether the officer’s testimony is inconsistent with the video.  Consider introducing the video as evidence to discredit the officer as to locations, times, actions, physical features of the area, etc.  If the officer followed the defendant for a lengthy period just waiting for an opportunity to stop him/her (probably him), cross examine the officer about all of the things your client did right - stopping at lights or signs, signalling other times, etc.

Remember that even if the police had a right to stop the car for the traffic violation, the stop must be limited, and the police cannot ask if the defendant had a weapon based solely on the traffic stop.  “Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.”  People v. Garcia, 20 N.Y.3d 317, 324 (2012).

The language of People v. Edwards, where the Court of Appeals injected “objective reasonableness” into this morass of race-based traffic stops presents a formidable hurdle to get over when challenging such stops:

“The initial stop of defendant’s vehicle was permissible and the police officers’ subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers’ actions (see, People v. Wright, 98 N.Y.2d 657, 658–659 [2002]; People v. Robinson, 97 N.Y.2d 341, 350 [2001]).” People v. Edwards, 14 N.Y.3d 741, 742 (2010).

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