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Legislative Memo: Search Protections Elimination

This bill proposes several amendments to the criminal procedure law, two of which would significantly diminish the legal constraints upon law enforcement officials when interacting with civilians and when conducting searches and seizures.

The proposed legislation would bar a criminal court judge from suppressing evidence that had been obtained in violation of Constitutional standards unless the accused could demonstrate that the law enforcement official demonstrated “bad faith” in committing the constitutional violation. The bill would also significantly broaden a police officer’s authority to stop and question a person even in the absence of a reasonable suspicion criminality is afoot.

The supporting memorandum for this bill states that in the face of the threat of terrorism, the protections against what New York courts have deemed unconstitutional police actions compromise the public safety. This rationale is misguided in at least two fundamental respects.

First, the proposed criminal procedure rules would apply to all criminal investigations, not only those related to terrorism, and would radically diminish the constitutional guidelines that are intended to deter overzealous and abusive police practices in all manner of police interactions with civilians.

Second, this radical scaling back of constitutional protections governing the authority of the police to detain, question, frisk and search is being proposed even as the federal government has given law enforcement agents extraordinary new powers to investigate suspected acts of terrorism.

These new powers include authority to monitor Internet activity; utilize “roving” interceptions of telephone and computer communications, even in investigations that do not involve allegations of terrorism; and conduct unannounced clandestine searches of private residences.

These new federal powers will be executed through close collaboration between federal agents and local law enforcement officials. The Federal Bureau of Investigation has undertaken a highly publicized effort to work in partnership with the New York City Police Department, which now has its own Antiterrorism Task Force.

Even as federal antiterrorism agents are given vastly expanded unchecked powers, the NYPD has recently obtained through the courts limitations on the authority of an oversight panel that was responsible for reviewing and documenting the department’s surveillance of political activity.

This new collaboration between federal and state law enforcement suggests that New York’s law-enforcement personnel, at the state and local levels, will now operate with greatly enhanced investigative and prosecutorial powers. And these new powers will be exercised under extraordinary pressure to investigate and prosecute acts of terrorism, which under New York law includes certain offenses that involve the intent to intimidate or coerce a civilian population or to influence the policy of a unit of government by intimidation or coercion.

Under this statutory definition, a person who makes a contribution to the educational activities of a political organization that, unbeknownst to that person, is associated with terrorism could be charged with providing support for terrorism; likewise, a person who provides financial services, or transportation, to a member of such an organization.

These circumstances raise certain threshold questions regarding S.2773: To what extent will local law enforcement professionals participate, as partners, in the exercise of the new, expanded investigative powers given federal agents?

Have federal and state law enforcement agencies provided training that will assist police professionals in distinguishing between those who espouse (or who may be associated with those who espouse) unpopular views and those who facilitate acts of terror? What have these agencies done, if anything, in response to reports that persons are being charged under antiterrorism statutes for alleged crimes that have nothing to do with terrorism?

As of March 2003, there has not been a single hearing before the New York State Legislature regarding the nature of the new partnership between federal and state law enforcement officials. The legislature simply does not have information necessary to answer the foregoing questions.

It would seem, therefore, particularly unwise to dismantle constitutional protections in the criminal procedure law without a comprehensive understanding of the nature and scope of federal and state antiterrorism investigations and prosecutions undertaken since September 11, 2001.

As to the specific provisions in S. 2773, the bill proposes to rewrite the New York Court of Appeals’ interpretation of the state constitution as regards the criminal procedure law; and in so doing, the legislature would overstep its role and usurp the role of the court. Specifically, this bill would overrule longstanding legal precedent regarding the constitutional protections that govern searches and seizures, substituting the legislature’s interpretation of the constitution for the court’s. (See Section 4, Subd. 4)

In hundreds of legal rulings New York courts have defined the scope of constitutional protections governing this type of police activity; nevertheless, this bill would prohibit the courts from issuing a suppression order unless the accused can demonstrate the police officer who committed the constitutional violation was acting in “bad faith.”

The sponsor of this bill contends that the existing case law governing searches and seizures is lax and insufficiently precise. The proposed “bad faith” rule regarding suppression of evidence would, however, establish so minimal a standard as to all but eliminate the constitutional constraints upon a police officer’s discretion in undertaking searches and seizures.

It should be noted that New York’s Court of Appeals has ruled explicitly that the exclusionary rule is based upon the state constitution. What’s more, the Court of Appeals has also held that a good-faith exception to the exclusionary rule is unconstitutional.

In People v. Bigelow, 66 N.Y.2d 417 (1985), the court observed that under a good-faith exception, “ . . . the exclusionary rule’s purpose is completely frustrated, a premium is place on the illegal police action and a positive incentive is provided to engage in a similar lawless act in the future.”

With this bill, then, the legislature seeks to reinterpret the state constitution to its own liking, diminishing the constitutional protections against improper police practices, and in so doing arrogating to itself the role of the judiciary.

In support of this proposal the sponsor’s memorandum states, without documentation, the proposition that “reliable evidence” is commonly excluded in the prosecution of violent felonies. An informal survey of criminal defense attorneys with extensive litigation experience in New York indicates that it is extremely rare that a suppression order results in the acquittal of, or dismissal of charges against, a defendant accused of a violent felony.

It is incumbent upon the sponsors of this legislation to address this factual question with some degree of empirical certainty before advancing this legislation.

Section 1 of this bill would replace the current common law standard regarding a police officer’s authority to stop, question, and arrest. Under that standard a police officer may request information from an individual based upon an “objective, credible reason,” not necessarily indicative of criminality. People v. Hollman, 79 N.Y.2d 181, 184 (1992) Before a police officer engages in more pointed questioning, such that the person approached would believe he or she is suspected of wrongdoing, the police officer must have a “founded suspicion criminality is afoot.” Id.

Section 1 of this bill provides that a police officer is authorized to approach a person based upon an “objective, credible reason not necessarily indicative of criminality.” (The Hollman standard) However, this bill would then permit the police officer, upon making such an approach, to “take such other actions as the police officers deems appropriate.”

This provision, as with the aforementioned “bad faith” exception to the rule regarding suppression of evidence, would so diminish the constitutional protections of due process, association, privacy, speech and expression as to make these rights illusory.

In particular the provision, in Section 1 of the bill, that would permit a police officer to “take such actions as the officer deems appropriate,” even in the absence of signs of criminality, would all but invite overly aggressive and intrusive police practices – notwithstanding the bill’s reference to limiting such conduct to what is constitutionally permissible. This provision would precipitate great confusion in the law, and quite possibly chaos in the streets, regarding the scope of a police officer’s authority when interacting with non-suspects.

Here, again, the sponsor’s memorandum cites several carefully selected cases that present a distorted view of the “street level” reality. The Court of Appeals in 1994 upheld the legal standard regarding police interactions with civilians. And the recent history of police practices in New York City suggests the standard is necessary to constrain overzealous and abusive police practices.

That history indicates that failure to educate and train police officers regarding the legal basis for approaching and interacting with civilians undermines the effectiveness of the police, not to mention the rights and liberties of civilians.

In the mid-1990s, the New York City Police Department had implemented a policy of aggressive investigation and prosecution of so-called “quality-of-life” infractions. The policy led to well-documented abuses: A 1998 New York Times study of arrest data showed a dramatic increase in the number of improper arrests made by New York City police. According to the Times’s analysis, district attorneys rejected – that is, refused to prosecute — charges in more than twice as many cases as had been rejected in the prior four years.

A study of the NYPD’s “stop and frisk” practices undertaken by the Attorney General’s office, concluded that citywide approximately one-quarter of all UF-205 forms (which police officers are required to complete after various “stop” encounters) did not state a sufficient basis to justify the stop. The report also found that after accounting for the differing crime rates among various racial groups, blacks were stopped 23 percent more often than whites, across all crime categories.

There was also a steady increase in police brutality lawsuits during this period, with a staggering cost to the city – approximately $40 million in 1999, alone. The Attorney General’s report concluded that, “Civil rights without personal safety is a mirage; policing without respect for the rule of law is not policing at all.”

Finally, it must be noted that the sponsor’s memorandum in support of this bill relies heavily upon cases involving drug possession as justification for eliminating due process protections in the criminal procedure law. Under current law prosecutors and police have little difficulty incarcerating even non-violent drug offenders for severe mandatory sentences.

There are now more than 18,000 persons incarcerated in New York prisons for drug offenses. It is now well documented that New York’s drug laws are enforced in a manner that has a severe disparate impact on African-Americans and Latinos.

(Studies demonstrate that the overwhelming majority of persons who sell and use drugs are white; and yet African-Americans and Latinos represent approximately 93 percent of all persons incarcerated for drug offenses.) There is also ample research that demonstrates treatment, education and job training are far more effective than incarceration in deterring drug use and reducing the rate of recidivism among drug offenders.

Despite a broad consensus among legislators and policy makers that the Rockefeller Drug Laws must be reformed, the inability of the governor and legislature to enact such reform was one of the most widely noted failures of the 2002 legislative session. It is unconscionable that the Senate would propose eviscerating the rules of due process in criminal matters – which will inevitably lead to a growing population of non-violent drug offenders – without having made a good-faith effort to enact meaningful reform of the Rockefeller Drug Laws.

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