By Christopher Dunn

As the highly publicized trial challenging the NYPD's stop-and-frisk program was winding down last month, the office of Mayor Michael Bloomberg offered to certain press outlets a "study" it had conducted that purported to reveal that the Southern District judge presiding over the trial -- Judge Shira A. Scheindlin -- grants suppression motions in a uniquely high percentage of cases.

According to the city's study, Judge Scheinlin has granted suppression motion in 60 percent of cases, as compared to about 30 percent for the Southern District judge with the next highest rate of granting suppression motions.

The mayor's office's efforts resulted in a major May 15 story in The New York Daily News, headlined "Judge Vs. The NYPD." More significantly perhaps, in its May 27 issue, The New Yorker magazine had a lengthy article, entitled "Rights and Wrongs, A Judge Takes on Stop-and-Frisk," that focused on Judge Scheindlin and reported, "According to a study prepared by the mayor's office, Scheindlin suppresses evidence on the basis of illegal police searches far more than any of her colleagues -- twice as often as the second-place judge."

That New York City would resort to such a transparent effort to influence Judge Scheindlin or taint her in the eyes of the public or the Second Circuit is remarkable. Setting aside, however, the propriety of its actions, that the city succeeded in generating publicity about Judge Scheindlin's suppression rulings warrants an examination of the rulings the city included in its study to assess the legitimacy of its suggestion that she is biased against the NYPD.

The city provided to reporters a Westlaw printout entitled "Litigation History Report for Scheindlin, Hon. Shira A." That report listed 19 cases, of which 15 were criminal cases presenting suppression motions upon which Judge Scheindlin had ruled since 1996. According to the judge, as reported by The Daily News, to look only at these 15 reported cases is completely misleading because most of her suppression rulings do not result in published opinions and nearly all of her unpublished rulings are denials of suppression motions.
But what about the 15 published decisions? Given that the City highlighted these cases, one would expect that at least this small and selective sample would depict a judge biased against the NYPD. A review of these cases, however, suggests otherwise.

The Six NYPD Cases

Of the 15 suppression rulings from Judge Scheindlin identified by the city, six involved challenges to searches conducted by NYPD officers. Recognizing that the United States Attorney Office, which represents the government in criminal prosecutions in the Southern District, is not shy about appealing adverse rulings and that no one would describe the Second Circuit as biased against the NYPD, the appellate histories of suppressions rulings by Southern District judges is a critical benchmark for assessing those rulings.

In the six NYPD cases included in the city's study, there were three appeals. In none did the Second Circuit reverse a decision by Judge Scheindlin granting a suppression motion. The court did reverse Judge Scheindlin in one case, but there she had denied the suppression motion. In the other two cases, the court affirmed Judge Scheindlin rulings denying suppression motions.

The case where the Second Circuit reversed Judge Scheindlin is the most recent of her suppression rulings identified by the city, so it is worth examining in some detail. In United States v. Simmons the suppression motion arose out of a report to the NYPD by a tenant that his roommate had threatened him with a gun. Officers arrived at the apartment and entered with the tenant's consent. After the tenant told the officers the roommate was in a bedroom down a hallway, they went to the door of the room, found it open, and claimed to have seen a gun in plain view on the bedstand. The roommate then came out of the room, was questioned by the officers, and told them there was a gun in the room under papers on a chair. Without a warrant, the officers entered the room, retrieved the gun, and arrested the roommate, Robert Simmons.

Simmons moved to suppress, alleging the officers had unlawfully entered the apartment and, separately, his bedroom. In an unpublished decision, Judge Scheindlin rejected those arguments, concluding that consent existed for entry into the apartment, that the public-safety exception to the Fourth Amendment permitted the questioning of the roommate about the gun, and that exigent circumstances justified the search of the bedroom. On appeal, the Second Circuit, in an October 2011 opinion by Judge Barrington Parker, agreed that entry into the apartment and the questioning about the gun were permissible but reversed Judge Scheindin's holding that exigent circumstances justified the warrantless entry into Simmons' bedroom to retrieve the gun. And responding to a dissent from Judge Ralph Winter suggesting that alternative grounds for affirmance existed because Simmons had impliedly consented to entry to his bedroom, Judge Parker stated in a footnote, "I do not believe the record can support a finding of express or implied consent."

This was not the end of the matter, however, as on remand the government took up Judge Winters' argument and asserted that Simmons had impliedly consented to the search when he voluntarily told the officers the specific location of the gun. Judge Scheindlin agreed in an April 2012 ruling. After expressly accepting the credibility of the NYPD officer who claimed to have seen what he thought was a gun in plain view, Judge Scheindlin adopted the aggressive pro-government position about consent outlined by Judge Winter, quoting his dissent:

Defendant's statements constituted implied consent to the officer's entering his bedroom and securing the gun. Informing the police of the precise but concealed location of the gun -- under papers and on a particular chair -- had no purpose other than to facilitate the immediate seizure of the weapon. . . . A defendant's directions to a firearm amounts to, or may be found to amount to, implied consent, at least for the limited purpose of retrieving the gun.

As for the discussion about consent by Judge Parker in his opinion for the court, Judge Scheindlin deemed that to be dictum because his statement about consent used "I" instead of "we," suggesting he was speaking only for himself.

The two other rulings by Judge Scheindlin in NYPD cases to reach the circuit both resulted in affirmances of her denial of suppression motions. The more recent, United States v. Stone, involved a stop of a pedestrian by NYPD officers assigned to the Street Crime Unit, the same unit involved in the 1999 shooting of Amadou Diallo that triggered the original class action lawsuit brought against the NYPD's stop-and-frisk program. In Stone the officers claimed to have seen the defendant walking down the street with what appeared to be a heavy object in his pocket, leading them to approach him, at which point he ran but ultimately was apprehended and found to be in possession of a gun. The defendant contradicted the officers' accounts, but Judge Scheindlin credited their testimony and rejected the defendant=s suppression motion, even though she believed that race may have played a role in the original decision to focus on the defendant. The Second Circuit summarily affirmed.

The other NYPD suppression ruling from Judge Scheindlin to reach the circuit arose out of the stop of a car that NYPD officers claimed had run a red light. After stopping the car, the officers smelled marijuana and learned the driver did not have a valid license. An officer then frisked the driver, found bullets in a pocket, and subsequently found a gun in a trunk compartment. The defendant moved to suppress, with Judge Scheindlin stating that the "issue raised at the hearing is solely one of credibility" about the circumstances of the stop. She credited the testimony of the officers and denied the suppression motion; the Second Circuit summarily affirmed.

In the three other NYPD cases, the government did not appeal decisions by Judge Scheindlin granting suppression motions. The most recent dates back to 2003 and involved a dispute about whether tenants in apartment had in fact consented to a search that produced a gun, with Judge Schleindlin crediting the tenants= testimony and concluding that no valid consent was obtained. In a 1996 case Judge Schendlin suppressed a gun found in a livery car that police stopped without suspicion or consent as part of a roving taxi-safety program. (After this decision, the NYPD revamped the program so that the only cars being stopped were ones whose owners or drivers enrolled in the program and consented to being stopped.) Finally and also in 1996, she suppressed "a small package containing a tiny amount of marijuana" found following a stop and frisk and a large gun the police claimed to have subsequently found after the defendant was taken to the precinct, holding that information from an anonymous source describing a suspect was too vague to have justified the stop of the defendant. (In suppressing, Judge Scheindlin raised questions about the origins of the gun, given that the original frisk was sufficiently thorough enough to discover the marijuana.)

The Non-NYPD Rulings

The nine other cases identified by the city in its "study" involved searches by various federal officers. Two of those cases went to the Second Circuit, with Judge Scheindlin being reversed in one and affimed in the other.
The reversal -- the only reported reversal of a ruling by Judge Scheindlin granting a suppression motion -- involved a dispute about whether federal officials had made sufficient efforts before seeking to use a wiretap to investigate a defendant. Judge Scheindlin found that the affidavit presented by the officers was insufficient, but the Second Circuit disagreed and reversed. In doing so, the Court described it as "an exceptionally close case."

The other non-NYPD case to reach the circuit involved a search by Amtrak police at Penn Station of a passenger's backpack after he told the officers they could look in it. Judge Scheindlin squarely rejected the defendant's claim that his consent did not encompass actually searching the contents of the backpack, and the Court of Appeals summarily affirmed.

That leaves seven non-NYPD cases where there were no appeals. In two cases Judge Scheindlin denied suppression motions entirely. In four she granted suppression: one involving the search of an apartment based upon a report to officers that a fugitive who was not a tenant had been seen in the apartment recently; one involving the legal question whether an "order" obtained by probation officers for the search of the home of a person on supervised release actually qualified as a warrant based on sufficient suspicion; one involving whether a Chinese-speaking tenant gave consent to INS officers to search his apartment for an illegal alien; and one involving FBI agents reading written materials pursuant to what was supposed to only be an inventory search. Finally, in one case involving multiple warrants and the search of beepers seized as part of an arrest, Judge Scheindlin granted suppression motions for four categories of evidence and denied them for three.

Lessons Learned

A sample of 15 published suppression rulings from a Southern District judge over the course of 17 years tells one virtually nothing about that judge's approach to suppression, given how many suppression rulings do not result in published opinions. But setting that aside, even the 15 cases singled out by the City in its purported study do not provide any support for the suggestion that Judge Scheindlin is biased against the NYPD. Whatever concerns the city may harbor about how the judge will rule on the pending stop-and-frisk case, an attempt to impugn her integrity with these cases seems as unfounded as it is inappropriate.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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