Respondents Brief — New York v. Class

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Fo E PA Ee cagamaties

No. 84-1181

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

—_—_— -—_

NEw YORK,

Petitioner,

Vv.

BENIGNO CLASS,

Respondent.

On Writ Of Certiorari

To The Court of Appeals

Of The State of New York

BRIEF FOR RESPONDENT

Mark C. CoGAn

WILLraM E. HELLERSTEIN*

The Legal Aid Society

15 Park Row—18th Floor

Miriam J. HIBEL New York, New York 10038

On the brief (212) 577-3420

Attorneys for Respondent

* Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

| BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the judgment of the New York Court of

Appeals was based on adequate and independent state

grounds where the court’s opinion was expressly predi-

cated on the state constitution and relied on a long line of

that court’s prior search and seizure rulings.

2. Whether Officer McNamee violated respondent's

Fourth Amendment right to be free from unreasonable

searches and seizures when, upon stopping respondent's

ear for a traffic infraction and lacking any reason to

believe that the car was stolen, he opened the door,

entered the vehicle, reached inside, and moved papers on

the dashboard, in order to search for the vehicle identi-

fication number.

3. Whether petitioner's claims, raised for the first

time before this Court, that (1) a motorist lacks a reason-

able expectation of privacy in a vehicle when he has no

license, and (2) the police are entitled to search a

motorist’s vehicle whenever they are authorized to place

the person under arrest for a traffic infraction, are not

properly or adequately presented for this Court’s review

and, in any event, are meritless.

ill

TABLE OF CONTENTS

Page

a i

TABLE OF AITTHORITIES. ... 2.2... cc cccccccccccccces Vv

Teen nn cccccncceces l

CONSTITUTIONAL PROVISIONS INVOLVED ............ l

SEMTMRIOTT OF THe CAGE ..... ccc ccc cc ccc cccccccs l

SUMMARY OF ARGUMENT............cccccecececeees 6

Dee ee. ccc ucccccccecces i)

POINT I

THE JUDGMENT OF THE NEW YORK COURT

OF APPEALS WAS BASED ON ADEQUATE

AND INDEPENDENT STATE GROUNDS

WHERE THE COURT’S OPINION WAS

EXPRESSLY PREDICATED ON THE STATE

CONSTITUTION AND RELIED ON A LONG

LINE OF THAT COURT’S PRIOR SEARCH

AND SEIZURE RULINGS. .................. 9

POINT II

OFFICER McNAMEE VIOLATED RESPOND-

ENT’S FOURTH AMENDMENT RIGHT TO BE

FREE FROM UNREASONABLE SEARCHES

AND SEIZURES WHEN, UPON STOPPING

RESPONDENT’S CAR FOR A TRAFFIC

INFRACTION AND LACKING ANY REASON

TO BELIEVE THAT THE CAR WAS STOLEN,

HE OPENED THE DOOR, ENTERED THE

VEHICLE, REACHED INSIDE, AND MOVED

PAPERS ON THE DASHBOARD, IN ORDER TO

SEARCH FOR THE VEHICLE IDENTIFICA-

Ee 15

A. When Officer McNamee opened the door of

respondent's car and entered it to look for the

VIN, and thus exposed private areas not other-

wise visible, he conducted a search governed by

the Fourth Amendment. .................. 16

Table of Contents—Continued

Page

B. Officer McNamee conducted an unreasonable

search when, lacking probable cause or a rea-

sonable suspicion that respondent's car was

stolen, he searched the car forthe VIN. .... 22

POINT III

PETITIONER’S CLAIMS, RAISED FOR THE

FIRST TIME BEFORE THIS COURT, THAT (1)

A MOTORIST LACKS A REASONABLE EX-

PECTATION OF PRIVACY IN A VEHICLE

WHEN HE HAS NO LICENSE, AND (2) THE

POLICE ARE ENTITLED TO SEARCH A

MOTORIST’S VEHICLE WHENEVER THEY

ARE AUTHORIZED TO PLACE THE PERSON

UNDER ARREST FOR A TRAFFIC INFRAC-

TION, ARE NOT PROPERLY OR ADE-

QUATELY PRESENTED FOR THIS COURT'S

REVIEW AND, IN ANY EVENT, ARE MER-

4) Perrier 34

A. Petitioner may not raise in this Court —_

issues that were not presented to, passed on by,

or factually developed in, the state courts. .. 34

B. On the merits, the State’s assertion that an

unlicensed motorist lacks a reasonable expecta-

tion of privacy in a vehicle he lawfully possesses

NITE, ck kok cecdeccdcsvesenvescsse 41

C. On the merits, the “search incident to arrest”

doctrine does not apply where the police,

although authorized to arrest a motorist for a

traffic infraction, do not take such action. ... 46

en i id aces wancuneséanecuanesissun 49

TABLE OF AUTHORITIES

CASEs: Page

Abel v. United States, 362 U.S. 217 (1960) ............ 47

Almeida-Sanchez v. United States, 413 U.S. 266

RRP IER pearener eee evan nee es aes ar 22, 23, 27

Brown v. Texas, 443 U.S. 47 (1979) .................. 29

California v. Carney, 471 U.S. —_, 85 L.Ed.2d 406

ES See a ee re en ee ee er 22, 26

Cardinale v. Louisiana, 394 U.S. 4387 (1969) .......... 36

Carroll v. United States, 267 U.S. 132 (1925).......... 22

Chimel v. California, 395 U.S. 752 (1969)............. 46

Colonnade Catering Corp. v. United States, 397 U.S. 72

FECES ERs PEC EPR St -Pe eer Ir eee 23

Colorado v. Nunez, ___. U.S. ___,, 79 L. Ed. 2d 338

ERS re rt Deere een. mie 15

Commonwealth v. Evans, ___ Pa. Super. ____, 494 A.2d

tC rictetcueciuued i euacarcewuks kite se 28

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 26

Cotton v. United States, 371 F.2d 385 (9th Cir. 1967)... 21

Delaware v. Prouse, 440 U.S. 648 (1979). ...... 7, 16, 23-29

Dewey v. Des Moines, 173 U.S. 193 (1899) ............ 40

Draper v. United States, 358 U.S. 307 (1959).......... 13

Florida v. Casal, 462 U.S. 637 (1983) ................ 13

Florida v. Royer, 460 U.S. 491 (1983). ................ 28

Fuller v. Oregon, 417 U.S. 40 (1974). .............04.. 41

Hayes v. Florida, 470 U.S. ___, 84 L.Ed.2d 705

ES a ee nae 19, 35

Herb v. Pitcairn, 324 U.S. 117 (1945). ................ i)

Hill v. California, 401 U.S. 797 (1971). ............... 35

Hudson v. Palmer, 468 U.S. —___, 82 L.Ed.2d 393 (1984) 45

Illinois v. Andreas, 463 U.S. 765 (1983) .............. 33

Illinois v. Gates, 462 U.S. 213 (1983).......... 8, 35, 36, 40

Johnson v. United States, 333 U.S. 10 (1948) .......... 45

Katz v. United States, 389 U.S. 347 (1967) ............ 20

Maine v. Thornton, 466 U.S. ___., 80 L.Ed.2d 214(1984) 15

McDonald v. United States, 335 U.S. 451 (1948)....... 44

McGoldrick v. Compagnie Generale, 309 U.S. 430(1940) 35

Michigan v. Long, 463 U.S. 1032

dG houceucecsuscesadsenends 6, 7, 9, 14, 25, 32, 47

Table Of Authorities—Continued

CASES: Page

Mincey v. Arizona, 437 U.S. 385 (1978). ............ 22, 49

New Jersey v. T.L.O., 469 U.S. ——, 83 L.Ed.2d 720

i ited eke dieh ee hhasnndksiehesas cqleenes 26

New York v. Belton, 453 U.S. 454 (1981)...... 22, 25, 37, 46

New York v. Quarles, 467 U.S. ——, 81 L.Ed.2d 550

dss ae teehee éesedesensencnqneuanneet 32

Ohio v. Johnson, 467 U.S. —_, 81 L.Ed.2d 425 (1984). 14

Payton v. New York, 445 U.S. 573 (1980).............. 22

Pennsylvania v. Mimms, 434 U.S. 106 (1977). ....... 31-33

People v. Belton, 55 N.Y.2d 49, 482 N.E.2d 745

Terr err rT TTT Ter TT TT 13.14

People v. Brewer, 112 Mich. App. 670, 317 N.W.2d 218

SE cen cnc dnecdsesheketenesecdnkhsseenseass« 21

People v. Brooks, 405 Mich. 225, 274 N.W.2d 430 (1979) 20

People v. Class, 63 N.Y.2d 491, 472 N.E.2d 1009 (1984). 4

People v. Class, 97 A.D.2d 741, 468 N.Y.S.2d 892 (1st

BE, FED 6d vcdcccccctconscocccceseseccccecee 4

People v. Cruz, 34 N.Y.2d 362, 314 N.E.2d 39 (1974)... 10

People v. David L., 56 N. Y.2d 698, 436 N.E.2d 1324, cert.

denied, 459 U.S. 866 (1982) ........ccccccccccees 10

People v. Dodt, 61 N. Y.2d 408, 462 N.E.2d 1159 (1984). 38

People v. Elwell, 50 N.Y.2d 231, 406 N.E.2d 471 (1980). 18

People v. Erwin, 42 N.Y.2d 1064, 369 N.E.2d1170(1977) 48

People v. Evans, 43 N.Y.2d 160, 371 N.E.2d 528 (1977). 47

People v. Gokey, 60 N.Y.2d 309, 457 N.E.2d 723 (1983) 14, 37

People v. Howell, 49 N.Y.2d 778, 403 N.E.2d 182

| SPPTTTICITeTCC Trier eT ee Tee 43, 48

People v. Johnson, 64 N.Y.2d 617, 474 N.E.2d 241 (1984) 37

People v. Long, 419 Mich. 636, 359 N.W.2d 194 (1984).. 14

People v. Long, 413 Mich. 461, 320 N.W.2d 866 (1982).. 14

People v. M=rsh, 20 N.Y.2d 98, 228 N.E.2d 783

Dh dechacceatnssanieedssenesanens 6, 10-12, 36, 39

People v. Miller, 43 N.Y.2d 789, 373 N.E.2d 286 (1977),

, Ay A.D.2d 425, 385 N.Y.S.2d 457 (1st Dept.

People v. Perel, 34 N.Y.2d 462, 315 N.E.2d 452 (1974). 10, 11

People v. Piper, 101 Ill.App.3d 296, 427 N.E.2d 1361

SE 6 564.56 6006065460 6k Nes uedes Cbedeeondeser 20

vii

Table Of Authorities—Continued

CASEs: Page

People v. Smith, 59 N.Y.2d 454, 452 N.E.2d 1224

beens bndbadeheheetinbsdeebanee ss ae 14, 37

People v. Sullivan, 29 N. Y.2d 69, 272 N.E.2d 464 (1971) 10

People v. Troiano, 35 N. Y.2d 476, 323 N.E.2d 183 (1974) 12

People v. Valoppi, 61 Mich. App. 470, 233 N.W.2d 41

a ae ie Rk i il a 21

People v. Weintraub, 35 N.Y.2d 351, 320 N.E.2d 636

eal ee ek cn ete 11

Rakas v. Illinois, 489 U.S. 128 (1978)................ 8, 42

Raley v. Ohio, 360 U.S. 423 (1959) ...............0... 40

Scott v. United States, 436 U.S. 128 (1978)............ 41

Shirley v. Commonwealth, 218 Va. 49, 235 S.E.2d 432

EES ey et en 21

Sibron v. New York, 392 U.S. 40 (1968)........... 8, 13, 47

Simpson v. United States, 346 F.2d 291 (10th Cir. 1965) 20

South Dakota v. Opperman, 428 U.S. 364 (1976)...... 22, 45

Spinelli v. United States, 393 U.S. 410 (1969) ......... 13

Stanley v. Illinois, 405 U.S. 645 (1972) ............... 40

State v. Casal, 410 So.2d 152 (Fla. 1982).............. 13

State v. Cohn, 284 So.2d 426 (Fla. Dist. Ct. App. 1973). 20

State v. Green, 680 S.W.2d 474 (Tenn. Crim. App. 1984) 28

State v. McGann, 124 N.H. 101, 467 A.2d 571 (1983)... 20

State v. Moore, 66 Hawaii 202, 659 P.2d 70 (1988) ...... 20

State v. Sedacca, 252 Md. 207, 249 A.2d 456 (1969)..... 21

State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980). 20

State Farm Mutual Automobile Insurance Co.v. Duel,

I i eda ten 35

Steagald v. United States, 451 U.S. 204 (1981).... 35, 40, 41

Terry v. Ohio, 392 U.S. 1 (1968). .... 7, 14, 19, 21, 23, 30, 32

Texas v. Brown, 460 U.S. 730 (1983)............. 17, 18, 20

United States v. Biswell, 406 U.S. 311 (1972).......... 23

United States v. Brignoni-Ponce, 422 U.S. 873 (1975). 27, 29

United States v. Brown, 535 F.2d 424 (8th Cir. 1976)... 20

United States v. Chadwick, 433 U.S. 1 (1977) ......... 47

United States v. Duckett, 583 F.2d 1309 (5th Cir. 1978). 20

United States v. Forrest, 620 F.2d 446 (5th Cir. 1980)... 20

viil

Table Of Authorities—Continued

CASES: Page

United States v. Graham, 391 F.2d 439 (6th Cir.), cert.

SE, BE , ED nb. de00ds oeeceusees ce 21

United States v. Harris, 479 F.2d 508 (5th Cir. 1973)... 28

United States v. Hensley, 469 U.S. ___, 83 L.Ed.2d 604

ee Se ee oS ce eeaawenabeeel 31

United States v. Jacobsen, 466 U.S. ___., 80 L.Ed.2d 85

Ts bie i Cott eeedecteneuneewwEnes 7, 16-18

United States v. Jamerson, 549 F.2d 1263 (9th Cir. 1977) 28

United States v. Johnson, 431 F.2d 441 (5th Cir. 1970).. 21

United States v. Karo, 468 U.S. —__, 82 L.Ed.2d 530

ESS SP Rr re rer a ere 18

United States v. Kitowski, 729 F.2d 1418 (11th Cir. 1984) 21

United States v. Knotts, 460 U.S. 276 (1983) .......... 17

United States v. Martinez-Fuerte, 428 U.S. 543

DE er tie Deon Ded eteevadeeu tees 26, 27, 29

United States v. Matlock, 558 F.2d. 1328 (8th Cir.), cert.

CE, Ge Gs TEE 6 406 o6écescccocecccecs 28

United States v. Ortiz, 422 U.S. 891 (1975)............ 27

United States v. Place, 462 U.S. 696 (1983)... 17, 18, 23, 28

United States v. Polk, 433 F.2d 644 (5th Cir. 1970) ..... 21

United States v. Powers, 439 F.2d 373 (4th Cir.), cert.

Ce ee, SEED sic niycnnseeeedoeces 21

United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972).. 31

United States v. Robinson, 414 U.S. 218 (1973)... 12, 46, 47

United States v. Ross, 456 U.S. 798 (1982). ........... 7, 22

United States v. Roy, 734 F.2d 108 (2d Cir. 1984)....... 45

United States v. Villamonte-Marquez, 462 U.S. 579

et ee De ies we aw bs 28

United States v. Ware, 457 F.2d 828 (7th Cir.), cert.

SE, Ge es PEED node cccscvcccocccoces 21

United States v. Williams, 440 F.2d 1235 (6th Cir.), cert.

denied, 404 U.S. 887 (1971) ... ccc ccc cccccccess 28

United States v. Wood, 500 F.2d 681 (5th Cir. 1974). .... 21

United States v. Zemke, 457 F.2d 110 (7th Cir.), cert.

denied, 406 U.S. 947 (1972). ........... cece eee 20, 21

Wainwright v. Sykes, 483 U.S. 72 (1977). .........-45- 38

Webb v. Webb, 451 U.S. 493 (1981). ..............46. 35, 38

Table Of Authorities—Continued

CASEs: Page

Welsh v. Wisconsin, 466 U.S. ___, 80 L.Ed.2d 732(1984) 43

Whitely v. Warden, 401 U.S. 560 (1971)............... 31

Wilson v. Cook, 327 U.S. 474 (1946) ...............0.. 40

Wood v. State, 632 S.W.2d 734 (Tex. Crim. App. 1982) . 21

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S

Nhe b'98-0446005 640040 66640b05060 e000 15

CONSTITUTIONAL AND STATUTORY PROVISIONS:

United States Constitution, Amendment IV .......... 1,18

United States Code, Title 28, Section 1257(3).......... l

United States Supreme Court, Rule 21.1(a)........... 41

United States Supreme Court, Rule 34.1(a)........... 41

New York Constitution, Article I, Section 12 1, 6, 10, 13-15

New York City Traffic Regulations §60(a)............. 2

New York Penal Law §70. meeeg (McKinney Supp.

ST Gila ch bcenbbnsdes ds tinkhaonianeedeee 4

New York Penal Law §265. 02(4 4) (McKinney Supp.

PM citi geuubedénutundddunanetdesecss 4

New York Vehicle & Traffic Law §155 (McKinney Supp.

iit edichadeceesndbindeenesendenssc 48

New York Vehicle & Traffic Law §375 (McKinney Supp.

hi ciusieuseeveudind sndbenedebedheces 48

New York Vehicle & Traffic Law §401 (McKinney Supp.

bis 6devbeedennesacded 5, 6, 9, 13, 28, 30, 36

New York Vehicle & Traffic Law §509 (McKinney Supp.

PR UC idicuckduesdedvaseadadeseetioes 43, 48

New York Vehicle & Traffic Law §1180 (McKinney Supp.

ct ekadsgauenns ab6hbbdudseessse-o+

OTHER AUTHORITIES:

Black’s Law Dictionary (5th Ed. 1979) ............... 16

Galie, State Constitutional Guarantees and Protection of

Defendants’ Rights: The Case of New York,

1960-1978, 28 Buffalo L. Rev. 157 (1979) .._....... 12

W. LaFave, Search and Seizure: A Treatise on the Fourth

Eee TF

JURISDICTION

Petitioner asserts that this Court has jurisdiction

under 28 U.S.C. § 1257(3). Respondent maintains that

the Court lacks jurisdiction because the judgment of the

New York Court of Appeals was based on adequate and

independent state grounds (see Point I, post).

CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution, Amendment IV,

provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects against unreason-

able searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

The New York Constitution, Article I, Section 12,

provides, in relevant part:

The right of the people to be secure in their per-

sons, houses, papers and effects, against unreason-

able searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

During the afternoon of May 11, 1981, Police Officers

Lawrence Meyer and William McNamee were on routine

patrol. They observed respondent driving a 1972 Dodge

Charger with a cracked windshield 5 to 10 miles an hour

over the speed limit, a speed Officer McNamee deemed

“too high for the streets.”! The officers pulled respondent

1 Officer Meyer testified that respondent was traveling at a speed of

35 or 40 miles an hour (A. 13). Since the standard speed limit within

over in a routine traffic stop (Meyer: A. 11-13, 16;

McNamee: A. 21-23).

Respondent parked his car at the side of the road;

Officer Meyer parked his vehicle directly behind it.

Respondent exited his car, closed the door, and joined

Officer Meyer at the rear of respondent’s vehicle.

Respondent gave Meyer the car's registration and insur-

ance papers, but informed Meyer that he had no driver's

license (Meyer: A. 12, 15).2 Meanwhile, Officer McNamee,

unaware of respondent’s lack of a license, walked over to

respondent's car and opened the door on the driver's side

in order to locate the vehicle identification number (VIN)

(Meyer: A. 12, 15-17; McNamee: A. 21, 24, 26-27). While

McNamee searched for the VIN, respondent continued

speaking with Officer Meyer (McNamee: A. 26-27).

Officer McNamee opened the door of respondent's car.

He first looked, unsuccessfully, for the VIN on the door

panel, and then on the dashboard. A piece of paper on the

dashboard prevented him from inspecting the VIN from

outside the car. To see the number, McNamee reached

inside the vehicle and moved the paper. The officer testi-

fied that, while doing so, he looked down and saw a gun

handle sticking out from under the front seat of the car

(McNamee: A. 21, 25-26). Respondent later admitted that

the gun belonged to him (Class: A. 36).

Officer McNamee provided no explanation for his desire

to inspect the VIN. Neither did Officers McNamee or

New York City is 30 miles per hour [New York City Traffic Regula-

tions § 60(a)], the dissenting Justice in the Appellate Division and the

entire Court of Appeals found that respondent was proceeding at a

speed of 5 to 10 miles per hour over the speed limit (A. 49, 55, 61).

2 At the suppression hearing, respondent answered “No” to the

prosecutor's question whether “[(oJn that day, [he was] a licensed

operator.” The judge presiding at the hearing precluded further

inquiry into whether respondent ever had a driver's license (A. 36).

Meyer ever voice any suspicion that respondent’s car was

stolen. Indeed, there was no testimony that the officers

ran a radio check on respondent’s vehicle to determine

whether it had been reported stolen.2 McNamee, the

officer who searched for the VIN, was not in possession of

the vehicle’s registration or insurance card. Nor did he,

upon finding the VIN, check the number against anything

or copy it down so he could compare it to these documents

(McNamee: A. 25-27). Indeed, neither officer claimed to

have checked the VIN against anything else. Notably,

there was no testimony that Officer McNamee’s search for

the VIN was required by any standard police procedures

or regulations.

Once Officer McNamee found the gun, he showed it to

Meyer, who then arrested respondent for possession of

the weapon. The officers also gave respondent a summons

for being an unlicensed driver and for driving a car with a

cracked windshield (Meyer: A. 17-19). Respondent was

neither arrested for the two traffic infractions nor even

issued a summons for speeding. Nor was there any testi-

mony that he would have been arrested for the traffic

infractions had he not been arrested for possession of the

gun.

In its ruling denying respondent’s motion to suppress

the gun, the court specifically found that “there was no

reason to believe the vehicle [respondent] was driving was

stolen” (A. 45). The court nonetheless concluded that

Officer McNamee’ actions were “reasonable and prudent

under the circumstances.” This finding was based on two

facts: respondent’s conduct in exiting his vehicle and walk-

ing over to the police, and respondent's lack of a driver's

3 In fact, as the State concedes (Br. for Pet. at 37), the car was not

stolen. It belonged to respondent's brother-in-law (Class: A. 32).

Everything in the car’s documentation was in order (McNamee: A.

28).

license, which was not then known to McNamee (A.

45-46).

After the court denied his suppression motion, re-

spondent pleaded guilty to criminal possession of a wea-

pon in the third degree. New York Penal Law § 265.02(4)

(McKinney Supp. 1984-1985). Although this crime is a

felony in New York, respondent was sentenced only to a

five year term of probation, after the court found the

existence of mitigating circumstances. New York Penal

Law § 70.02(5)(b) (McKinney Supp. 1984-1985). In 1984,

respondent was discharged from probation.

Respondent appealed the judgment of conviction, con-

tending that the police violated his right, under both the

New York and United States Constitutions, to be free

from unreasonable searches and seizures, when Officer

McNamee entered respondent’s car to inspect the VIN

without having any reason to believe that the car was

stolen. The New York Suprem2 Court, Appellate Divi-

sion, affirmed the judgment without opinion (A. 48-49).

People v. Class, 97 A.D.2d 741, 468 N.Y.S.2d 892 (1st

Dept. 1983). Justice John Carro dissented, writing that

respondent’s conduct did not create any suspicion suffi-

cient to justify Officer McNamee’s intrusion into the car

(A. 49-51).

Respondent then appealed to the New York Court of

Appeals, which, by a5 to 2 decision, reversed the order of

the Appellate Division, granted respondent’s motion to

suppress, vacated his guilty plea, and dismissed the

indictment (A. 53). People v. Class, 63 N.Y.2d 491, 472

N.E.2d 1009 (1984). In an opinion written by Judge Judith

Kaye, the court held that Officer McNamee violated

respondent's rights, under the New York Constitution

and the Fourth Amendment, to be free from unreasonable

searches and seizures when he entered respondent's car

to search for the VIN.

First, the court held that Officer McNamee’s noncon-

sensual entry into respondent’s car to view the VIN con-

stituted a search (A. 57). Second, the court recognized

both the governmental interest in VIN inspections and

the fact that such inspections usually entail a “lesser

invasion of privacy than a full-blown search” (A. 58).

Although the court suggested that these factors might

justify a requirement of less than probable cause, it con-

cluded that they could not justify completely eliminating

the constitutional requirement of a factual predicate for

the search. Thus, since Officer McNamee possessed nei-

ther probable cause nor any reason to believe that

respondent's car was stolen, his entry into the vehicle was

unconstitutional (A. 56-59). Third, the court rejected the

State’s argument that the “public nature” of a VIN ne-

gates any expectation of privacy. The court explained that

the requirement that manufacturers place VINs on vehi-

cles “does not automatically sanction police intrusion into

private space” in order to read the number (A. 58). The

court further held that New York Vehicle & Traffic Law

§ 401 (McKinney Supp. 1984-1985), which permits a police

officer to demand of a motorist information necessary to

identify the vehicle and owner, does not authorize an

officer to intrude into a private vehicle in order to obtain

such information. Rather, the statute authorizes police

officers only to demand information of a motorist, and

requires the motorist to provide it (A. 60).

In dissent, Judge Hugh R. Jones argued that there was

no expectation of privacy with respect to a VIN, and

concluded that an officer is entitled to enter a vehicle to

inspect the VIN upon lawfully stopping a motorist for a

traffic infraction (A. 61-63).

Throughout the litigation of this case in the New York

courts, the State has asserted, as the sole basis for

upholding Officer McNamee’s entry into respondent’s

vehicle, that a police officer, upon stopping any motorist

for a routine traffic infraction, has the right to intrude into

the car to inspect the VIN, even if the officer lacks any

reason to believe that the car is stolen. Now peititioner

contends, for the first time, that (1) an unlicensed

motorist lacks a legitimate expectation of privacy in his

vehicle, and (2) a police officer may search the passenger

compartment of a vehicle whenever he is authorized to

arrest a motorist for a traffic violation even if he does not,

in fact, make an arrest (Br. for Pet. at 34n.*). As these

issues were never previously raised, the state courts had

no occasion to rule on them.

SUMMARY OF ARGUMENT

1. The judgment of the New York Court of Appeals

rested on an adequate and independent ground in state

law: the court specifically held that state law—Vehicle &

Traffic Law § 401 (McKinney Supp. 1984-1985) — did not

authorize the police conduct at issue and that Article I,

Section 12, of the New York Constitution, which protects

the public against unreasonable searches and seizures,

prohibited it. The New York constitutional provision has

its own well-established identity, independent of the

Fourth Amendment. Therefore, the judgment of the

Court of Appeals is beyond this Court’s review because it

rested on an adequate and independent ground in state

law. Michigan v. Long, 463 U.S. 1032, 1041-1042 (1983).

The New York Court of Appeals’ reliance on New York

law on this point is clear from the face of its opinion. Since

its decision in People v. Marsh, 20 N. Y.2d 98, 228 N.E.2d

783 (1967), the New York Court of Appeals has held that,

as a matter of state constitutional law, a search of a

motorist or his vehicle may not be predicated upon a

motorist’s commission of an ordinary traffic infraction. In

the instant case, the court relied on Marsh and its pro-

geny to support its conclusion that Officer McNamee vio-

lated respondent’s right to be free from unreasonable

searches and seizures, as guaranteed by the New York

Constitution, by entering his vehicle to inspect the VIN.

2. Since Officer McNamee neither suspected, nor had

reason to believe, that the car was stolen, his entry into

respondent's car violated respondent’s right to be free

from unreasonable searches and seizures.

Officer McNamee’s entry into respondent’s vehicle for

the purpose of looking for the VIN constituted a “search”

within the meaning of the Fourth Amendment because

the officer intruded upon respondent’s legitimate and rea-

sonable expectations of privacy when he entered the vehi-

cle, revealing information contained within the car that he

could not have ascertained without making the intrusion.

United States v. Jacobsen, 466 U.S. , 80 L. Ed.2d 85,

94 (1984).

As a general rule, an officer may not search the interior

of an automobile unless he has probable cause. United

States v. Ross, 456 U.S. 798 (1982). Nor may an officer

engage in a lesser intrusion upon a motorist’s expectation

of privacy in a vehicle unless he has an objectively reason-

able basis, founded on specific and articulable facts, to do

so. Michigan v. Long, 463 U.S. 1032 (1983); Delaware v.

Prouse, 440 U.S. 648 (1979); Terry v. Ohio 392 U.S. 1

(1968). Since Officer McNamee possessed neither proba-

ble cause nor any articulable basis for his action, such as a

belief that respondent’s car was stolen, he violated the

Fourth Amendment when he intruded into the car.

3. Because the State’s claims were neither asserted in

the state courts nor passed on below, this Court should

not consider the State’s present assertions that (1) an

unlicensed motorist lacks a legitimate expectation of pri-

vacy in his vehicle, and (2) a police officer may search the

passenger compartment of a vehicle whenever he is

authorized to arrest the motorist for a traffic infraction,

even where the officer does not arrest or intend to arrest

the motorist (Br. for Pet. at 34 n.*). /llinois v. Gates, 462

U.S. 218, 221-224 (1983).

In any event, these arguments should be rejected

because they lack precedent and justification and would

negate the substantial protections afforded by the Fourth

Amendment. First, petitioner’s “unlicensed motorist”

theory ignores the fact that a driver has a legitimate

expectation of privacy in a vehicle lawfully in his posses-

sion, which gives him standing to litigate the constitu-

tionality of any intrusion therein. Rakas v. [llinois, 439

U.S. 128, 139 (1978). Second, petitioner's reliance on the

“search incident to arrest” doctrine is misplaced.

Although the police could have placed respondent under

arrest solely on account of his traffic infractions, they did

not do so and there is no basis to believe they would have

done so. Moreover, the “search incident to arrest” doc-

trine is premised on the minimal expectation of privacy

that survives after an officer makes an arrest, the police

officer’s need to protect himself and prevent his prisoner

from escaping, and the need to preserve evidence. There-

fore, the doctrine is simply inapplicable in a case where,

as here, the officers merely stop a motorist for an ordinary

traffic infraction and make the arrest only after con-

ducting their search and based solely on the evidence

seized as a result of that search. Sibron v. New York, 392

U.S. 40, 67 (1968).

ARGUMENT

POINT I

THE JUDGMENT OF THE NEW YORK COURT OF

APPEALS WAS BASED ON ADEQUATE AND INDEPEN-

DENT STATE GROUNDS WHERE THE COURT’S OPINION

WAS EXPRESSLY PREDICATED ON THE STATE CONSTI-

TUTION AND RELIED ON A LONG LINE OF THAT

COURT'S PRIOR SEARCH AND SEIZURE RULINGS.

Because of limitations on its jurisdiction and in view of

the rule against rendering advisory opinions, this Court

has no power to review judgments of state courts that rest

on adequate and independent state grounds. In order

“scrupulously to observe the long standing rule [against

reviewing] a judgment of a state court that rests on an

adequate and independent ground in state law,” this

Court can decide a case only where the result was man-

dated by federal law. Herb v. Pitcairn, 324 U.S. 117,

125-128 (1945).

In Michigan v. Long, 463 U.S. 1032, 1041-1042 (1983),

the Court reiterated the rule against reviewing judg-

ments of state courts that rest on adequate and indepen-

dent state grounds. However, for cases where “the

adequacy and independence of any possible state law

ground is not clear from the face of the opinion,” the Court

adopted a “plain statement” rule, requiring the state

court to make it clear that it relied on federal cases only as

persuasive authority. Jd. at 1040-1041. In the instant

case, because the adequacy and independence of the state

ground is clear from the face of the state court’s opinion,

the “plain statement” rule adopted in Long does not apply.

Accordingly, the judgment of the New York Court of

Appeals is beyond this Court’s power of review.

The New York Court of Appeals held that New York

Vehicle & Traffic Law § 401 (McKinney Supp. 1984-1985)

does not authorize, and the New York Constitution for-

bids, a police officer’s action, upon stopping a motorist for

a routine traffic infraction, in opening and entering the

car to inspect the VIN. In the very first sentence of its

opinion, the court expressly cited Article I, Section 12, of

the New York Constitution as a basis for holding that

Officer McNamee violated respondent's right to be free

from unreasonable searches and seizures (A. 55). In addi-

tion to that explicit invocation of the state constitution,

the court made it plain that its judgment flowed from its

own prior rulings in a host of cases: People v. David L., 5&

N.Y.2d 698, 486 N.E.2d 1324, cert. denied, 459 U.S. 366

(1982); People v. Miller, 43 N.Y.2d 789, 373 N.E.2d 286

(1977), affg 52 A.D.2d 425, 385 N.Y.S.2d 457 (1st Dept.

1976); People v. Perel, 34 N.Y.2d 462, 315 N.E.2d 452

(1974); People v. Cruz, 34 N.Y.2d 362, 314 N.E.2d 39

(1974); People v. Sullivan, 29 N.Y.2d 69, 272 N.E.2d 464

(1971); and People v. Marsh, 20 N.Y.2d 98, 228 N.E.2d

783 (1967). Of these decisions, David L., Perel, Cruz, and

Marsh all expressly rely on the New York Constitution.

The foundation for the ruling of the New York Court of

Appeals in the instant case is People v. Marsh, supra, 20

N. Y.2d 98, 228 N.E.2d 783, in which that court first held

that, upon stopping a motorist for an ordinary traffic

infraction, a police officer is not entitled to search the

motorist. On its face, Marsh was based on state law.

Before even mentioning the state or federal constitution,

Chief Judge Fuld wrote for the court that the New York

Legislature never authorized police officers to conduct a

search merely upon stopping a motorist for a routine

traffic violation. In cases of routine traffic violations, New

York law authorizes a police officer to issue a summons to

a motorist in lieu of making an arrest. Indeed, in New

York City it is customary to do so. Jd. at 100-101, 228

N.E.2d at 785. As it is neither the necessary nor the usual

procedure in New York to arrest a motorist for a routine

traffic violation, an officer may not search the motorist

unless, when the vehicle is stopped, there are reason-

able grounds for suspecting that the officer is in dan-

ger or there is probable cause for believing that the

offender is guilty of a crime rather than merely a

simple traffic infraction.

Id. at 101, 228 N.E.2d at 786.

One rationale for this rule is that, quite simply, evi-

dence of an ordinary traffic infraction is not to be found

inside the vehicle. Jd. at 101, 228 N.E.2d at 785. Addi-

tionally, the court reasoned that “[a] motorist who

exceeds the speed limit does not thereby indicate any

propensity for violence or iniquity. . . .” Jd. at 101, 228

N.E.2d at 786. The Court of Appeals further held that a

search is not authorized even where an arrest warrant

had been issued on account of the motorist’s violation of

the traffic laws. The court wrote:

(T]he statutory scheme does not contemplate treat-

ing [the motorist] as a common criminal to be booked,

photographed, fingerprinted and jailed. It is equally

degrading—and most cage 4 not the Legislature's

intention—to subject him to the affront of a search

when one is not necessary for the proper execution of

the warrant. In short, no pres or a weapon is

authorized as incident to an arrest for a traffic infrac-

tion, regardless of whether the arrest is made on the

scene or pursuant to a warrant, unless the officer has

reason to fear an assault or probable cause for believ-

ing that his prisoner has committed a crime.

Id. at 102, 228 N.E.2d at 786.

It is beyond doubt that the rule established by the

Court of Appeals in Marsh is soundly based on state law.

In People v. Perel, 34 N.Y.2d 462, 468, 315 N.E.2d 452,

456 (1974), which the court also cited in the instant case

(A. 57), the Court of Appeals confirmed that Marsh held,

as a matter of state law, that a search may be unreason-

able upon an arrest for partic lar offenses.4 Indeed, the

*In People v. Weintraub, 35 N.Y.2d 351, 353, 320 N.E.2d 636, 637

State concedes as much in its brief before this Court (Br.

for Pet. at 44 n.*). Only in the penultimate paragraph ofits

Marsh opinion, after establishing that the New York Leg-

islature never authorized the police to conduct a search

incident to an arrest for a routine traffic violation, did the

court consider whether this rule was required by the state

or federal constitution. Moreover, when it did so, the

court’s citation to the relevant constitutional provisions

made it plain that the result was dictated by the state

constitution, as well as the federal constitution: “Indeed,

this conclusion is also dictated by the constitutional pro-

hibition against unreasonable searches and seizures.

(U.S. Const., 4th Amdt; N.Y. Const., art. I, § 12).” Peo-

ple v. Marsh, 20 N.Y.2d at 102, 228 N.E.2d at 786 (cita-

tions omitted).

Having already decided in Marsh that New York law

prohibits a police officer from searching a motorist

stopped for a routine traffic violation, it logically followed

that the Court of Appeals would hold, in the instant case,

that a police officer may not intrude into a motorist’s

vehicle to search for the VIN where the officer lacks any

reason to believe that the car is stolen.

Indeed, the court’s analysis of the relevant statutory

and constitutional provisions in the instant case closely

parallels that in Marsh. As it did in Marsh, the Court of

Appeals looked to the state statute, and the relevant

(1974), the Court of Appeals reiterated that its holding in Marsh was

based on legislative policy as well as on the federal and state constitu-

tional guarantees against unreasonable searches and seizures. More-

over, the rule the Court of Appeals established in Marsh survives as a

matter of state law, notwithstanding this Court’s decision in United

States v. Robinson, 414 U.S. 218 (1973). People v. Troiano, 35 N.Y.2d

476, 479, 323 N.E.2d 183, 186 (1974) (Rabin, J., concurring). See

generaily Galie, State Constitutional Guarantees and Protection of

Defendants’ Rights: The Case of New York, 1960-1978, 28 Buffalo L.

Rev. 157, 166-173 (1979).

legislative intent, to determine whether state law autho-

rized the police conduct at issue. As in Marsh, the court

found that it did not. The court reasoned that New York

Vehicle & Traffic Law § 401, which gives police officers

the right to demand information, could not be construed

as authorizing a search for that information, whether it be

a search of the motorist or of his vehicle (A. 59-60). More-

over, as in Marsh, when addressing the constitutional

question, the court explicitly declared that such a search

violated the state, as well as federal, protections against

unreasonable searches and seizures (A. 55).

The conclusion that the judgment of the New York

Court of Appeals in the instant case was based on ade-

quate and independent state grounds is reinforced by that

court's long tradition of interpreting the New York Con-

stitution generously in favor of the public's right to be free

from unreasonable searches and seizures. For instance,

in People v. Elwell, 50 N.Y.2d 231, 241, 406 N.E.2d 471.

477 (1980), the New York Court of Appeals held that the

New York Constitution goes beyond this Court's holdings

in Spinelli v. United States, 393 U.S. 410 (1969), and

Draper v. United States, 358 U.S. 307 (1959), as to the

corroboration required to sustain a warrantless search or

arrest based on an informant’s tip. Likewise, as to

° The mere fact that Article I, Section 12, of the New York Consti-

tution contains the same language as the Fourth Amendment in no

way prevents the New York provision from being interpreted to

provide greater protection to the public’s right to be free from unrea-

sonable searches and seizures than would the Federal Constitution.

Sibron v. New York, 392 U.S. 40, 60-61 (1968); People v. Belton, 55

N.Y.2d 49, 51, 482 N.E.2d 745, 746 (1982). In light of the court's

express reliance on state constitutional and statutory law, the fact

that the court also cited the Fourth Amendment and federal cases

does not negate the conclusion that the judgment is based on ade-

quate and independent state grounds. See State v. Casal, 410 So.2d

152 (Fla. 1982), writ dismissed as improvidently granted sub nom.

Florida v. Casal, 462 U.S. 637 (1983).

searches incident to arrest, the Court of Appeals has

interpreted Article I, Section 12, of the New York Consti-

tution in a manner different than this Court has inter-

preted the Fourth Amendment. See People v. Belton, 55

N.Y.2d 49, 51, 482 N.E.2d 745, 746 (1982); People v.

Gokey, 60 N.Y.2d 309, 312, 457 N.E.2d 723, 724 (1983);

People v. Smith, 59 N.Y.2d 454, 457-459, 452 N.E.2d

1224, 1227 (1983).

The ample state grounds relied upon here serve to

distinguish the instant case from Michigan v. Long, 463

U.S. 1032 (1983). There, this Court held that a state court

decision which “relied exclusively on [federal caselaw]”

and cited “[nJot a single state case” in support of the result

was not based on adequate and independent state

grounds. Jd. at 1043 (emphasis in original). Indeed, an

inspection of the Michigan Supreme Court's decision in

People v. Long, 413 Mich. 461, 320 N.W.2d 866 (1982),

reveals that the result turned entirely on that court's

analysis of this Court’s holding in Terry v. Ohio, 392 U.S. 1

(1968). In this case, by contrast, the New York Court of

Appeals cited ample state grounds to support its analysis

and result. In Long, the defendant never raised his state

law claim until his case was before this Court. People v.

Long, 419 Mich. 636, 359 N.W.2d 194, 200 (1984) (on

remand). By contrast, in the instant case respondent

maintained, throughout his appeals in the state courts,

that McNamee’ intrusion into his vehicle violated both

state and federal law.

This Court’s cases since Long reinforce the conclusion

that the judgment of the New York Court of Appeals in

the instant case rests on adequate and independent state

grounds. In Ohio v. Johnson, 467 U.S. —__, 81 L.Ed.2d

425, 432 n.7 (1984), this Court held that, where the syl-

labus to the state court’s opinion, the only portion on

which the entire state court had to agree, referred to the

prohibition against double jeopardy without expressly

invoking the state’s double jeopardy provision, the judg-

ment did not rest on adequate and independent state

grounds. Here, by contrast, in the first sentence of its

opinion the state court expressly relied on Article I, Sec-

tion 12, of the New York Constitution, which protects the

public against unreasonable searches and seizures (A. 55).

Similarly, unlike the state court opinion in Maine v.

Thornton, 466 U.S. __, 80 L.Ed.2d 214, 222 n.5 (1984),

the New York Court of Appeals relied on the state consti-

tution and cases which were firmly based on state law.

Like Colorado v. Nunez, ___ U.S. ___,, 79 L. Ed.2d 338,

341 (1984), the instant case involves a situation where the

state court based its judgment on its own prior cases (e.g.,

People v. Marsh) which in turn were founded on state law.

In a case where, as here, the decision sought to be

reviewed rests on both state and federal grounds, either

of which are dispositive, this Court lacks jurisdiction.

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

062, 568 (1977). The writ should therefore be dismissed.

POINT II

OFFICER McNAMEE VIOLATED RESPONDENT'S

FOURTH AMENDMENT RIGHT TO BE FREE FROM

UNREASONABLE SEARCHES AND SEIZURES WHEN,

UPON STOPPING RESPONDENT’S CAR FOR A TRAFFIC

INFRACTION AND LACKING ANY REASON TO

BELIEVE THAT THE CAR WAS STOLEN, HE OPENED

THE DOOR, ENTERED THE VEHICLE, REACHED

INSIDE, AND MOVED PAPERS ON THE DASHBOARD, IN

ORDER TO SEARCH FOR THE VEHICLE IDENTIFICA-

TION NUMBER (VIN).

As a general rule, a police officer violates the Fourth

Amendment when he searches a vehicle without probable

cause. Any constitutionally cognizable intrusion into a

vehicle, moreover, even if it is not deemed a “full-blown

search,” is impermissible unless the officer has an objec-

tively reasonable basis, founded on specific and articula-

ble facts, to support such action. Where a police officer

opens the door of a private automobile and enters, without

individualized suspicion, to search for the VIN, disturb-

ing the motorist’s papers in the process, the officer vio-

lates the motorist’s right to be free from unreasonable

searches and seizures.

A. When Officer McNamee Opened Tiie Door Of Respon-

dent’s Car And Entered It To Look For The VIN, And

Thus Exposed Private Areas Not Otherwise Visible, He

Conducted A Search Governed By The Fourth Amend-

ment.

Under the Fourth Amendment, a police officer con-

ducts a “search” when he infringes upon “an expectation

of privacy that society is prepared to consider reason-

able.” United States v. Jacobsen, 466 U.S. ——, 80

L. Ed.2d 85, 94 (1984). The word “search” means a prying

into hidden places in an effort to discover objects or infor-

mation not open to view. Black’s Law Dictionary 1211

(5th Ed. 1979). It is this very common sense notion that

has animated the Court’s rulings in this area. When a

police officer, as here, opens the door of a private auto-

mobile and enters the car to probe for information, and

thereby exposes areas otherwise inaccessible to view, he

conducts a search that must meet the requirements of the

Fourth Amendment.

As a threshold matter, it is well-established that,

despite the special nature of an automobile, a motorist has

some legitimate expectation of privacy within the interior

of a car. See Delaware v. Prouse, 440 U.S. 648, 662-663

(1979). The State concedes as much (Br. for Pet. at 20). As

in any case where government agents intrude upon legiti-

mate expectations of privacy, their action must be mea-

sured against the requirements of the Fourth

Amendment.

In determining whether a police officer conducts an

intrusion into an area in which there is a legitimate expec-

tation of privacy, and thus must comply with the require-

ments of the Fourth Amendment, the standard this Court

has consistently articulated considers whether the officer

exposes areas or information to which he otherwise would

not have access. Thus, the placement of a “beeper” on an

automobile to monitor a person’s movements on the road

is not a search, as it exposes nothing but openly visible,

public conduct as to which one accordingly lacks any

expectation of privacy. United States v. Knotts, 460 U.S.

276, 282 (1983). Or, when an officer peers into the interior

of a private automobile from outside the vehicle, even if he

is aided by a flashlight, the officer conducts no search, as

he merely views that which would be visible to

“Inquisitive passersby” and as to which one therefore

could not reasonably entertain any expectation of privacy.

Texas v. Brown, 460 U.S. 730, 739-740 (1983). Similarly,

where an intrusion can be so limited that no personal

information is exposed, but only contraband is detected,

there is no search within the Fourth Amendment. United

States v. Place, 462 U.S. 696, 707 (1983) (canine sniff):

United States v. Jacobsen, supra, 80 L.Ed.2d at 100-101

(chemical test of drugs).

Applying these precedents, it is indisputable that

Officer McNamee conducted a “search” when he opened

the door of respondent’s car and entered the vehicle in an

effort to inspect the VIN. The information McNamee

sought, by the officer's own testimony, could not have

been discovered without making a physical intrusion into

respondent’s vehicle (McNamee: A. 21, 25). Moreover,

McNamee’s investigative procedure was not so limited as

to expose only the mere presence of “contraband” (here,

by analogy, the VIN), as his intrusion enabled him to view

anything respondent may have placed in the front part of

the vehicle. Indeed, the State concedes that Officer

McNamee conducted a “limited entry and search” into

respondent's vehicle, which had the “effect of presenting

to police view a few locations near the floor of the car

which might have otherwise remained unseen” (Br. for

Pet. at 14, 29, 30, 33). Thus, McNamee’s intrusion into the

car may have been “less intrusive than a full-scale search

but it [did] reveal a critical fact about the interior of the

premises that the Government is extremely interested in

knowing and that it could not have otherwise obtained.”

United States v. Karo, 468 U.S. __, 82 L.Ed.2d 530,

541-542 (1984).®

While conceding that an individual retains an interest of

privacy within his vehicle (Br. for Pet. at 20, 24, 47), the

State asserts that the pertinent and dispositive fact is

respondent’s lack of expectation of privacy in the VIN

itself, and that the “special nature and purpose of the

VIN” requires that Fourth Amendment standards be

ignored (id. at 18). Such a proposition stands Fourth

Amendment analysis on its head, as it ignores the specific

constitutional protection attaching to the situs of the

intrusion (“persons, houses, . . . and effects”), and looks

solely to the nature of the object sought to be discovered.

Indeed, this Court has held that, even where there is no

expectation of privacy in the object of discovery (such as

contraband), the challenged intrusion will be exempt

from usual Fourth Amendment standards only if it is

limited to detecting the presence of that contraband and

risks infringement upon no other privacy interest. United

States v. Jacobsen, supra, 80 L.Ed.2d at 100-101; United

States v. Place, supra, 462 U.S. at 707.

6 The State’s suggestion that Officer McNamee could have seen the

weapon under the front seat of respondent’s car without physically

intruding into the vehicle (Br. for Pet. at 24, 26) finds no support in

the record. Nor did petitioner ever rely on this ground when the case

was in the state courts. Obviously, had Officer McNamee seen the

weapon from outside the vehicle, where he was entitled to be,

respondent would have no cause to complain. Texas v. Brown, supra,

460 U.S. 730. But this is not such a case.

Thus, since Officer McNamee’s intrusion meets the defi-

nition of a search, because it exposed areas in which

respondent’s privacy interests remained, the fact that

Officer McNamee was looking for the VIN, an object in

which respondent might have had minimal expectation of

privacy, is constitutionally irrelevant.7 Accordingly, the

fact that the VIN contains information useful to law en-

forcement officials does not negate the Fourth Amend-

ment’s application to cases where the officer intrudes into

a private vehicle to obtain that information. Nor does the

fact that automobile manufacturers are required to place

VINs in cars defeat a motorist’s privacy interest against

intrusions into his vehicle. As one distinguished commen-

tator has written:

(The argument] that entry of a vehicle to find the

VIN is no search and thus is not “within the scope of

the Fourth Amendment” is unsound. That form of

police surveillance, it is submitted, should not go

totally unregulated by constitutional restraints, for

that would mean that police could enter any par-

ticular car on a whim and that they could make whole-

sale entries of cars on nothing more than a hope that

one of them might turn out to be stolen. Such sur-

‘Indeed the State’s own reasoning is self-defeating. Petitioner

analogizes the VIN to a person's fingerprints, citing the lack of an

expectation of privacy in either (Br. for Pet. at 20). Yet, in Hayes v.

Florida, 470 U.S. , 84 L.Ed.2d 705 (1985), this Court analyzed

the interference with a suspect's liberty under the Fourth Amend-

ment, even though the purpose of his detention was merely to obtain

his fingerprints, and found such detention unconstitutional under the

standards articulated in Terry v. Ohio, 392 U.S. 1(1968). As in Hayes,

focus on the object of the search or seizure would beg the question of

whether the intrusion to discover that object falls within and meets

Fourth Amendment standards. Similarly, the State analogizes the

VIN to one’s license and registration (Br. for Pet. at 20-23). This logic

would justify otherwise unconstitutional searches and seizures of a

motorist simply because the intrusion was designed to locate these

“public” papers.

veillance intrudes upon a justified expectation of pri-

vacy and thus, as Katz v. United States (389 U.S. 347

(1967)] teaches, is subject to Fourth Amendment

limitations.

W. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment, § 2.5, pp. 359-360 (1978).

The State notes that the VIN is often capable of being

viewed from outside the car (Br. for Pet. at 18). Of course,

to the extent a police officer can inspect a car's VIN in

“plain view,” without making a physical intrusion into the

vehicle, no search occurs within the meaning of the

Fourth Amendment. Texas v. Brown, supra, 460 U.S.

730.8 Where, however, as the New York Court of Appeals

decided in this case, the officer intrudes into a vehicle to

discover information otherwise not available by a “plain

view” inspection, he conducts a “search” governed by

Fourth Amendment standards. Simpson v. United

States, 346 F.2d 291, 294 (10th Cir. 1965); State v. Moore,

66 Hawaii 202, 659 P.2d 70, 72 (1983); People v. Piper, 101

Ill. App.3d 296, 427 N.E.2d 1361, 1364 (1981); State v.

Simpson, 95 Wash.2d 170, 622 P.2d 1199, 1210 (1980); see

also State v. McGann, 124 N.H. 101, 467 A.2d 571 (1983)

(reaching this result based on the state constitution).

8 Several of the lower court cases the State cites for the proposition

that a VIN inspection is not a search (Br. for Pet. at 16-17) involve

“plain view” examinations by a police officer from outside the vehicle,

which clearly impinge on no legitimate expectations of privacy.

United States v. Zemke, 457 F.2d 110 (7th Cir. ), cert. denied, 406 U.S.

947 (1972); State v. Cohn, 284 So.2d 426 (Fla. Dist. Ct. App. 1973); and

People v. Brooks, 405 Mich. 225, 274 N.W.2d 430 (1979).

9 In many of the lower court cases cited by the State in which a VIN

inspection has been held not to constitute a “search” (Br. for Pet. at

16-17), the courts ruled that the police conduct was not a search

requiring probable cause, but nevertheless considered whether the

police officer had a “legitimate” or “reasonable” basis to examine the

VIN. See United States v. Forrest, 620 F.2d 446 (5th Cir. 1980);

United States v. Duckett, 583 F.2d 1309 (5th Cir. 1978); United States

The State concedes that respondent had a legitimate

expectation of privacy in the interior of his vehicle (Br. for

Pet. at 20). The State further concedes that Officer

McNamee entered the car and displaced papers on the

dashboard to obtain information from the interior (Jd. at

25-26). Finally, the State concedes that Officer

McNamee’s conduct constituted an “entry and search,”

albeit “limited,” which exposed “a few locations near the

floor of the car which might have otherwise remained

unseen” (Jd. at 30, 33). This Court considered it to be

“nothing less than sheer torture of the English language”

to characterize a frisk as being anything other than a

“search” governed by the Fourth Amendment. Terry v.

Ohio, 392 U.S. 1, 16 (1968). Likewise, it is inconsistent

with this Court’s precedents and tortures the English

language to suggest that Officer McNamee conducted

anything other than a “search” within the Fourth Amend-

v. Brown, 535 F.2d 424 (8th Cir. 1976); United States v. Ware, 457 F.2d

828 (7th Cir.), cert. denied, 409 U.S. 888 (1972); United States v.

Zemke, supra, 457 F.2d 116; United States v. Powers, 439 F.2d 373

(4th Cir. ), cert. denied, 402 U.S. 1011 (1971); United States v. Johnson.

431 F.2d 441 (5th Cir. 1970); United States v. Graham, 391 F.2d 439

(6th Cir.), cert. denied, 393 U.S. 941 (1968); Cotton v. United States,

371 F.2d 385 (9th Cir. 1967); People v. Brewer, 112 Mich. App. 670, 317

N.W.2d 218 (1981); Wood v. State, 632 S.W.2d 734 (Tex. Crim. App.

1982); and Shirley v. Commonwealth, 218 Va. 49, 235 S.E.2d 432

(1977). Thus, these cases do not stand for the proposition that the

Fourth Amendment is inapplicable to VIN inspections; in fact, they

implicitly support the contrary conclusion. There are relatively few

cases involving intrusive VIN inspections which employ no Fourth

Amendment criteria to determine whether the police procedure was

permissible: United States v. Kitowski, 729 F.2d 1418 (11th Cir. 1984);

United States v. Wood, 500 F.2d 681 (5th Cir. 1974); United States v.

Polk, 433 F.2d 644 (5th Cir. 1970); State v. Sedacca, 252 Md. 207, 249

A.2d 456 (1969); and People v. Valoppi, 61 Mich. App. 470, 233 N.W.2d

41 (1975). Therefore, the State is inaccurate when it asserts that the

holding of the New York Court of Appeals herein “reflects a minority

view which conflicts with the weight of lower court authority consid-

ering the issue of VIN inspections” (Br. for Pet. at 16).

ment when he opened the car door, reached inside, and

disturbed papers on the dashboard, to obtain information

from within the vehicle. }°

B. Officer McNamee Conducted An Unreasonable Search

When, Lacking Probable Cause Or A Reasonable Suspi-

cion That Respondent’s Car Was Stolen, He Searched

The Car For The VIN.

Under the Fourth Amendment, a search of private

property without proper consent is unreasonable, except

in certain carefully delineated situations, unless the

officer has prior authorization in the form of a valid search

warrant. Mincey v. Arizona, 437 U.S. 385, 390 (1978).

Because of an automobile’s mobility, the complex scheme

of regulations governing motor vehicles, and the lesser

expectations of privacy the public holds with regard to

private cars, an officer may search an automobile without

a warrant, but the requirement of probable cause remains

inviolate. California v. Carney, 471 U.S. ~~, 85

L.Ed.2d 406 (1985); United States v. Ross, 456 U.S. 798,

809 (1982); Carroll v. United States, 267 U.S. 132

(1925).11 As this Court emphasized in Almeida-Sanchez

10 None of the State's litany of hypothetical cases in which a police

officer might be allowed to intrude into a private vehicle (Br. for Pet.

at 7, 24-25) involve a situation in which a police officer's incursion into

the car is prompted by a desire, as here, to probe for information,

which is the sine qua non of a search. Moreover, these situations all

involve exigent circumstances. See Payton v. New York, 445 U.S.

573, 590 (1980).

11 The few narrow, carefully drawn exceptions to the rule barring

the police from searching a vehicle except upon probable cause, none

of which are relevant to the instant case, include the right of the

police, as a protective measure and in accordance with standard

procedures, to conduct an inventory search of a vehicle impounded

after the motorist is arrested [South Dakota v. Opperman, 428 U.S.

364 (1976)], and, upon making a lawful custodial arrest of a motorist,

to search the person's vehicle [New York v. Belton, 453 U.S. 454

v. United States, 413 U.S. 266, 269 (1973), the “auto-

mobile exception” to the warrant requirement, estab-

lished in Carroll, did not “declare a field day for the police

in searching automobiles. Automobile or no automobile,

there must be probable cause for the search.”

Even where the police officer's intrusion is deemed less

than a “full-blown search,” the Fourth Amendment still

requires that the officer comply with the prohibition

against unreasonable searches and seizures. To be justi-

fied under the Fourth Amendment, “the police officer

must be able to point to specific and articulable facts

which, taken together with rational inferences from those

facts, reasonably warrant [the officer's] intrusion.” Terry

v. Ohio, 392 U.S. 1, 21 (1968). The facts, moreover, must

be judged against an objective standard: would the

facts pane Be. og to the officer at the moment of the

seizure or the search “warrant a man of reasonable

caution in the belief” that the action taken was appro-

priate? Anything less would invite intrusions upon

constitutionally guaranteed rights based on nothing

more cdeienilel than inarticulate hunches, a result

this Court has consistently refused to sanction.

Id. at 21-22 (citations omitted); see also United States v.

Place, 462 U.S. 696, 703 (1983) (mere fact that intrusion is

deemed “minimal” does not negate requirement that

police have a reasonable basis for intruding on protected

Fourth Amendment interest).

These principles apply with no less force when the

intrusion concerns motorists and automobiles, and where

(1981)]. Contrary to the State’s assertion (Br. for Pet. at 33), the

“administrative search” doctrine articulated in such cases as Colon-

nade Catering Corp. v. United States, 397 U.S. 72 (1970) and United

States v. Biswell, 406 U.S. 311 (1972) does not authorize a police

officer lacking probable cause to search an ordinary motorist. Dela-

ware v. Prouse, 440 U.S. 648, 662 (1979); Almeida-Sanchez v. United

States, 413 U.S. 266, 271 (1973).

the intrusion constitutes less than a full-blown search.

Thus, in Delaware v. Prouse, 440 U.S. 648, 662-663

(1979), this Court held that the Fourth Amendment

affords substantial protection to a motorist’s expectation

of privacy:

An individual operating or traveling in an auto-

mobile does not lose all reasonable expectation of

privacy simply because the automobile and its use are

subject to government regulation. Automobile travel

is a basic, pervasive, and often necessary mode of

transportation to and from one’s home, workplace,

and leisure activities. Many people spend more hours

each day traveling in cars than walking on the

streets. Undoubtedly, many find a greater sense of

security and privacy in traveling in an automobile

than they do in exposing themselves by pedestrian or

other modes of travel. Were the individual subject to

unfettered governmental intrusion every time he

entered an automobile, the security guaranteed by

the Fourth Amendment would be seriously circum-

scribed. As T v. Ohio, supra, recognized, people

are not shorn of all Fourth Amendment protection

when they step from their homes onto the public side-

walks. Nor are they shorn of those interests when

they step from the sidewalks into their automobiles.

Accordingly, consistent with the Fourth Amendment, a

police officer may stop a motorist and detain him to check

his driver's license and the registration of the automobile

only where the officer has an articulable and reasonable

suspicion that the motorist is unlicensed, the automobile

is not registered, or either the vehicle or an occupant is

otherwise subject to seizure for a violation of the law.

Delaware v. Prouse, supra, 440 U.S. at 663.

In reaching this result, the Court rejected Delaware's

assertion that patrol officers should be subject to no con-

straints in deciding which vehicles they will stop because

of the State’s interest in discretionary spot checks as a

way to ensure highway safety and because of the limited

intrusion such a procedure imposes on the public. Jd. at

655. While fully acknowledging the state’s “vital interest”

in making sure that motorists and vehicles comply with

the highway laws and regulations, id. at 658, the Court

nonetheless concluded that, on the record before it, Dela-

ware had failed to show that “the discretionary spot check

is a sufficiently productive mechanism to justify the intru-

sion upon Fourth Amendment interests which such stops

entail.” Jd. at 659. Given the availability of less intrusive

procedures, the Court was not convinced that stopping

vehicles without articulable suspicion was justified. Jd.

Similarly, in Michigan v. Long, 463 U.S. 1032 (1983),

the Court held that, upon lawfully stopping a motorist, a

police officer may conduct a limited “protective search” of

the passenger compartment of the automobile if the

officer has an objectively reasonable belief, based on spe-

cific and articulable facts, that the suspect is dangerous

and may gain immediate control of weapons. Jd. at 1051.

In reaching this decision, the Court stressed that, when-

ever the police conduct an investigative stop, they are not

authorized, ipso facto, to conduct an automobile search,

as they would be authorized to do, under New York v.

Belton, 453 U.S. 454 (1981), when they make a lawful

custodial arrest. In an ordinary traffic stop, the police

officer lacks an important justification for a search that

exists in an arrest situation, i.e., the need to preserve

evidence. Michigan v. Long, supra, 463 U.S. at 1049 n.14.

Emphatically, whether the police conduct is deemed to

be a “full-blown search” or a lesser, constitutionally cog-

nizable intrusion (analogous to Terry), a police officer may

not intrude on a motorist’s legitimate expectations of pri-

vacy where he lacks any reasonable basis, founded on

specific and articulable facts, to support his action. The

officer must, at a minimum, have some “quantum of indi-

vidualized, articulable suspicion” to justify his intrusion

on protected privacy interests and to satisfy the “reason-

ableness standard” of the Fourth Amendment. Delaware

v. Prouse, supra, 440 U.S. at 662; United States v. Mar-

tinez-Fuerte, 428 U.S. 543, 560 (1976). This rule must not

be eviscerated if “[t]he word ‘automobile’ is not [to

become] a talisman in whose presence the Fourth Amend-

ment fades away and disappears.” Coolidge v. New

Hampshire, 403 U.S. 443, 461-462 (1971) (plurality opin-

ion). 12

In arguing that no individualized factual basis need

accompany a search of a car for the VIN, the State asks

this Court to depart from its precedents requiring reason-

able suspicion or probable cause whenever an officer

probes a private space, exposing otherwise private infor-

mation. In support of its argument that the fundamental

requirement of individualized suspicion be abandoned,

the State advances no justifications that have not already

been fully considered in these precedents. Petitioner, for

example, relies heavily on the reduced expectation of

privacy within an automobile and the State's interest in

“the pervasive regulatory scheme” as reasons to exempt a

VIN inspection from Fourth Amendment dictates (Br. for

Pet. at 21). However, these precise rationales were only

considered sufficient to justify dispensing with the war-

rant requirement:

In short, the pervasive schemes of regulation, which

necessarily lead to reduced expectations of privacy,

and the exigencies attendant to ready mobility jus-

tify searches [of automobiles] without prior recourse

to the authority of a magistrate so long as the overrid-

ing standard of probable cause is met.

California v. Carney, supra, 85 L.Ed.2d at 414. More-

over, the very regulatory interests cited by the State—

12 The instant case arose in a law enforcement setting, the precise

situation where the Fourth Amendment’s requirement of individu-

alized suspicion is most applicable. New Jersey v. T.L.O., 469 U.S.

___., 83 L.Ed.2d 720, 740 (1985) (Powell, J., concurring).

promoting public safety, ensuring the qualifications of

vehicles and their operators, and ensuring compliance

with licensing, registration, and inspection requirements

(Br. for Pet. at 21-22) — were considered in Prowse, 440

U.S. at 658, as only sufficient to justify further reducing

the probable cause requirement to reasonable suspicion.

Thus, these rationales, which have already justified sub-

stantial departures from the Fourth Amendment’s war-

rant requirement, cannot be invoked in new guise as

cause to eliminate the mandate of an individualized quan-

tum of suspicion.

Nor is generalized concern for law enforcement, arising

from such a fact as the large automobile theft problem in

the United States (Br. for Pet. at 23 n.*), a sufficient basis

for the Court to ignore the imperatives of the Fourth

Amendment. When it has been faced with other difficult

law enforcement problems, such as during the Prohibition

era [Carroll] cr today, with the current law enforcement

concern about illegal immigration [see Almeida-Sanchez

v. United States, 413 U.S. 266, 276 (1973) (Powell, J.,

concurring)],!3 the Court has held steadfastly to the

requirement that an officer may not be granted unbridled

discretion in conducting a search. Therefore, none of the

13 Roving patrols operating under the authority of the United

States Border Patrol may not stop an automobile unless the officers

have specific and articulable facts reasonably warranting suspicion

that the vehicle contains illegal aliens. United States v. Brignoni-

Ponce, 422 U.S. 873, 881 (1975). On the other hand, because stopping

cars at fixed checkpoints shows a high degree of effectiveness in

curtailing illegal immigration, the officials lack any less intrusive

methods, and the use of this procedure avoids granting undue discre-

tion to the officer in the field, Border Patrol officers are entitled to

employ this procedure even where they lack individualized suspicion

as to particular vehicles. United States v. Martinez-Fuerte, 428 U.S.

543 (1976). Even at a fixed checkpoint, however, the Border Patrol

may conduct a search only if the officers have probable cause. United

States v. Ortiz, 422 U.S. 891 (1975).

State’s arguments justify abandoning the minimal Fourth

Amendment requirement that a police officer have indi-

vidualized and reasonable suspicion in order to search an

automobile.

Not only is the holding of the New York Court of

Appeals in the instant case therefore consistent with the

prior decisions of this Court, but the court’s analysis also

furthers the policies of the Fourth Amendment which this

Court has discussed therein.

As in Prowse, the record here does not establish that

law enforcement officers lack less intrusive methods to

combat the problem of car theft which the State empha-

sizes. Cf. United States v. Place, 462 U.S. 696, 709 (1983):

United States v. Villamonte-Marquez, 462 U.S. 579, 589

(1983); Florida v. Royer, 460 U.S. 491, 504-506 (1983)

(White, J.); Delaware v. Prouse, 440 U.S. 648, 659 (1979).

As the New York Court of Appeals held, the police officers

could have acted under the authority of Vehicle & Traffic

Law § 401 (McKinney 1984-1985) and demanded to see

the VIN. Alternatively, they might have run a radio check

on the vehicle's license plates through the computer net-

work operated by the National Crime Information Cen-

ter. !4 Since there is no demonstrably compelling justifica-

tion for such a procedure, police officers should not be

permitted to intrude on the physical integrity of private

automobiles in order to inspect the VIN, where they lack

any articulable suspicion that the vehicle in question has

been stolen. Ifthe police are permitted to intrude into the

'* As is well known, radio checks of license plates frequently enable

law enforcement officials to identify stolen vehicles. See, e. g., United

States v. Matlock, 558 F.2d 1328 (8th Cir.), cert. denied, 434 U.S. 872

(1977); United States v. Jamerson, 549 F.2d 1263 (9th Cir. 1977):

United States v. Harris, 479 F.2d 508 (5th Cir. 1973); United States v.

Williams, 440 F.2d 1235 (6th Cir.), cert. denied, 404 U.S. 887 (1971):

Commonwealth v. Evans, ____ Pa. Super. , 494 A.2d 383 (1985):

State v. Green, 680 S.W.2d 474 (Tenn. Crim. App. 1984).

passenger compartment of private automobiles in order

to conduct VIN inspections without any articulable

grounds, the number of motorists whose privacy will be

violated merely to detect one single stolen car will be

large indeed. See Delaware v. Prouse, supra, 440 U.S. at

660. Such widespread intrusions into a motorist’s legiti-

mate expectation of privacy violate the most fundamental

policies of the Fourth Amendment.

The State’s argument, moreover, would eviscerate the

core of the Fourth Amendment: the need “to assure that

an individual’s reasonable expectation of privacy is not

subject to arbitrary invasions solely at the unfettered

discretion of officers in the field.” Brown v. Texas, 443

U.S. 47, 51 (1979). Thus, in order to detect aliens, the

stopping of vehicles without individual suspicion at fixed

checkpoints is permitted, United States v. Martinez-

Fuerte, supra, 428 U.S. at 559, but the same may not be

done by roving patrols, United States v. Brignoni-Ponce,

supra, 422 U.S. at 881. Similarly, officers may not exer-

cise unbridled discretion in choosing which vehicles they

will pull over for registration or license checks. Delaware

v. Prouse, supra, 440 U.S. at 655. Petitioner's claim that a

police officer should be authorized to physically intrude

into a private automobile to inspect the VIN, even where

the officer has no articulable suspicion that the car is

stolen, invites precisely the “standardless and uncon-

strained discretion” which this Court has vigorously con-

demned. /d. at 661.

The state courts found (A. 45-46, 50, 56, 59, 61), and

petitioner concedes (Br. for Pet. at 32), that the police

lacked probable cause or reasonable suspicion to believe

that respondent's car was stolen or that it contained con-

traband. Indeed, Officer McNamee never voiced any rea-

son for his intrusion. Nor did he do anything with the VIN

once he found it, such as compare the number to other

documents. Accordingly, regardless whether McNamee’s

conduct is deemed a “full-blown search” requiring proba-

ble cause, as in Carney and Ross, or a lesser intrusion

cognizable under the Fourth Amendment, as in Long,

Prouse, and Terry, the officer’s actions in opening the

door, entering the car, and disturbing papers on the dash-

board, in a search for the VIN, violated respondent’s right

to be free from unreasonable searches and seizures.

All the circumstances point to the conclusion that

Officer McNamee, lacking any rules, guidelines, standard

procedures or any other neutral criteria to justify his

action, acted on no more than his own “hunch” or whim

when he intruded into respondent’s car to inspect the

VIN. Indeed, as the highest court in New York held (A.

60), in intruding into the car without first asking respond-

ent for the information he desired, Officer McNamee com-

pletely disregarded Vehicle & Traffic Law § 401, the rule

the New York Legislature enacted to govern precisely

this situation. McNamee’s intrusion into the car must be

seen for what it was: a wholly unjustified interference

with respondent’s constitutional right to personal auton-

omy and security, free from arbitrary violation by an

agent of the State.

Recognizing that Officer McNamee had no factual basis

for his intrusion into the car, the State seeks to impute to

him Officer Meyer’s knowledge that respondent lacked a

driver's license (Br. for Pet. at 31). At the time he entered

respoudent’s vehicle, Officer McNamee had no knowledge

of this fact. Nevertheless, solely because McNamee’s

partner learned of respondent’s unlicensed status simul-

taneous to McNamee’s incursion into the car, the State

insists that McNamee should be credited with this infor-

mation. The essence of Fourth Amendment analysis,

however, is that a police officer’s conduct must be meas-

ured against the information he possesses at the time of

his action. Terry v. Ohio, supra, 392 U.S. at 21-22. Only

where a police officer relies on a directive from a fellow

officer or another law enforcement agency can he be cred-

ited with any information possessed by another. Whitely

v. Warden, 401 U.S. 560, 568 (1971). This Court’s decision

in United States v. Hensley, 469 U.S. ___, 83 L.Ed.2d

604 (1985), on which the State relies, demonstrates that

petitioner's argument is groundless. In Hensley, the

Court held that police officers may rely on a “wanted”

bulletin issued by another police department. 83 L.Ed.2d

at 614. Thus, one officer’s knowledge can be imputed to

another officer only where there is a transmittal of infor-

mation. Mere collective knowledge, without a transmittal

of information or a specific directive, is insufficient.

Accordingly, since McNamee acted entirely on his own,

and did not delay his intrusion into the vehicle long

enough to learn what respondent told his partner, any

information his partner learned but did not transmit prior

to the entry into the car cannot be imputed to

McNamee.!5 Any contrary rule would make a mockery of

Fourth Amendment analysis.

The State erroneously finds support in Pennsylvania v.

Mimms, 434 U.S. 106 (1977), for its contention that a

police officer, upon lawfully stopping a motorist for a

traffic infraction, is entitled to intrude into the vehicle to

inspect the VIN even if the officer lacks any reason to

suspect the car is stolen (Br. for Pet. at 29). Mimms,

however, is inapplicable for several important reasons.

‘© The State's reliance on United States v. Ragsdale, 470 F.2d 24

(5th Cir. 1972) (Br. for Pet. at 31) is misplaced. In Ragsdale, the court

based its conclusion on the fact that the officer who had the informa-

tion would have had a duty to act as his partner did in searching the

vehicle. See W. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment, § 3.5, pp. 631-634 (1978). In the instant case, the State

has not shown that Officer Meyer, upon finding that respondent was

unlicensed, had a duty to look at the VIN, or that he would have done

so.

First, it was largely because of the “inordinate risk

confronting an officer as he approaches a person seated in

an automobile,” Mimms, supra, 434 U.S. at 110, that the

Court deemed it necessary to authorize a police officer to

order a motorist out of his vehicle. This Court rightfully

does not equate the ordinary law enforcement concerns

present here — the discovery of the VIN for the purpose

of enforcing a regulatory scheme or, at most, to recover

stolen vehicles — with the imperative of protecting a

police officer or the public from a possibly armed sus-

pect.'6 Notably, in the instant case, Officer McNamee

asserted no particular safety rationale in support of his

search for the VIN in respondent’s car.!7 Finally, in

Mimms the officer lacked any less intrusive means to

ensure his safety. In seeking to recover stolen vehicles, by

contrast, an officer has many alternative procedures avail-

able to him. In Mimms, the Court stressed that the officer

merely moved the situs of an already legal detention, and

such intrusion hardly rises to the level of a “petty indig-

nity.” Jd. at 111. In the instant case, by contrast, the State

seeks authorization for police officers to turn a routine

16 Cf New York v. Quarles, 467 U.S. , 81 L.Ed.2d 550, 557

(1984) (adopting an exception to the Miranda rule where necessary to

protect the public against the dangers that arise when a gun is hidden

in a supermarket); Michigan v. Long, 463 U.S. 1032, 1049 n.14 (1983)

(distinguishing an officer's reasonable efforts to protect his own safety

from a mere attempt to collect evidence); and Terry v. Ohio, supra,

392 U.S. at 27 (authorizing a police officer to frisk an individual whom

he has reason to believe is armed and dangerous).

‘7 The State simply is wrong in asserting that the decision of the

New York Court of Appeals itself gives rise to some kind of danger for

police officers (Br. for Pet. at 27). The Court of Appeals’ decision does

not require the officer to allow the motorist back into his vehicle, but,

rather, merely suggests this as one constitutional option. Another

constitutional option is to secure the motorist’s consent. Where, as

here, the officers had no fear for their safety, they could have chosen

either option. :

traffic stop into a search of the interior of the vehicle,

which plainly involves an intrusion qualitatively different

and more serious than that which occurred in Mimms.

Indeed, Mimms ultimately supports our position that any

further intrusion in the nature of a search cannot be made

in the absence of articulable suspicion. The frisk in

Mimms was only justified when the officer saw a bulge,

thus creating a reasonable concern for safety. Jd. at 112.

The rule that a police officer may not intrude on the

physical integrity of a car’s passenger compartment to

inspect the VIN unless he has a reasonable belief, based

on specific, articulable facts, that the car is stolen, fully

satisfies this Court’s requirements as to the fashioning of a

Fourth Amendment standard to apply to a specific factual

situation: (1) the standard is workable for application by

rank and file, trained police officers; (2) the standard is

reasonable, because when a police officer has no articula-

ble grounds for suspicion, there is no probability that

anything warrants investigation; and (3) the standard is

objective, not based on the unfettered discretion of an

individual police officer. See Illinois v. Andreas, 463 U.S.

765, 772-773 (1983).

In sum, Officer McNamee conducted a “search” gov-

erned by the Fourth Amendment when he intruded into

respondent's vehicle in a quest for information contained

therein which was not otherwise visible and where his

intrusion exposed parts of the vehicle interior with

respect to which a person has a legitimate expectation of

privacy. Although the warrant requirement has been dis-

carded with respect to automobiles, probable cause is still

required whenever an officer conducts a search. Even

where the intrusion amounts to less than a “full-blown

search,” an officer needs individualized suspicion with

respect to the vehicle. The police may not exercise unfet-

tered discretion to intrude on interests protected by the

Fourth Amendment. An intrusion based on no more than

a mere unarticulable “hunch” is clearly illegal. Since

Officer McNamee had neither probable cause nor reason-

able suspicion, his intrusion into respondent's vehicle in

search for the VIN violated the Fourth Amendment.

POINT III

PETITIONER’S CLAIMS, RAISED FOR THE FIRST TIME

BEFORE THIS COURT, THAT (1) A MOTORIST LACKS A

REASONABLE EXPECTATION OF PRIVACY IN A VEHI-

CLE WHEN HE HAS NO LICENSE, AND (2) THE POLICE

ARE ENTITLED TO SEARCH A MOTORIST’S VEHICLE

WHENEVER THEY ARE AUTHORIZED TO PLACE THE

PERSON UNDER ARREST FOR A TRAFFIC INFRAC-

TION, ARE NOT PROPERLY OR ADEQUATELY PRE-

SENTED FOR THIS COURT’S REVIEW AND, IN ANY

EVENT, ARE MERITLESS.

As the State concedes (Br. for Pet. at 34 n.*), prior to

the time this Court granted certiorari, petitioner had

never raised in the state courts its present assertions that

(1) a motorist lacks a reasonable expectation cf privacy in

a vehicle when and simply because he is unlicensed, and

(2) the police were entitled to search respondent’s vehicle

simply because they cou/d have arrested him for a traffic

infraction. These legal claims were not presented to,

passed on by, or developed in, the New York courts, and

thus are not properly presented at this time. In any event,

even if this Court reaches these contentions, it should

reject them as lacking merit.

A. Petitioner May Not Raise In This Court Legal Issues

That Were Not Presented To, Passed On By, Or Factually

Developed In, The State Courts.

A long-standing rule of this Court bars review of ques-

tions urged by a petitioner or appellant that were not

presented to or passed on by the lower courts. Because of

“due regard for the appropriate relationship of this Court

to state courts,” this rule applies with particular force

with respect to cases that come before this Court from a

state court. McGoldrick v. Compagnie Generale, 309

U.S. 480, 434 (1940). The rule against considering a ques-

tion not pressed or passed on below has been described as

being jurisdictional in nature. See Webb v. Webb, 451 U.S.

493, 496-497 (1981); Hill v. California, 401 U.S. 797,

805-806 (1971); State Farm Mutual Automobile Insur-

ance Co. v. Duel, 324 U.S. 154, 160 (1945).

This Court has consistently applied the “not pressed or

passed on” rule to bar the State from raising legal grounds

to rebut a defendant’s Fourth Amendment claim where

those grounds had not been presented to, passed on by, or

developed in, the lower courts. For instance, in Steagald

v. United States, 451 U.S. 204, 209 (1981), the Court

refused to entertain a “standing” claim proffered by the

government which had not been developed in the lower

courts. In Jllinois v. Gates, 462 U.S. 213, 223 (1983), the

Court held that it could not consider whether there is a

“good faith” exception to the exclusionary rule where

petitioner, the State of Illinois, had failed to raise this

argument in the state courts, and the state courts had not

passed on the question. Likewise, in Hayes v. Florida,

470 U.S. ——, 84 L.Ed.2d 705, 709 n.1 (1985), the Court

held that it could not reach the State’s argument, never

raised in the state courts, that the inevitable discovery

exception to the exclusionary rule was applicable to the

Fourth Amendment issue presented. As in Steagald,

Gates and Hayes, the Court should not address the new

issues the State raises in this Court.

This Court has articulated three reasons why, in a case

such as this, review of legal contentions first raised in this

Court is improper: (1) general federalism concerns

require that the state courts be given the first chance to

consider the constitutionality of the actions of state

officials; (2) requiring the State first to raise its claim in

the state courts enables those courts to rest their deci-

sions on adequate and independent grounds in state law;

and (3) when a legal argument was not raised below, the

record is likely to be inadequate because the facts were

not developed with a view toward resolving such an issue.

Illinois v. Gates, supra, 462 U.S. at 221-222; Cardinale v.

Louisiana, 394 U.S. 437, 489 (1969). These three consid-

erations apply with special force in this case.

Federalism concerns weigh heavily against considering

petitioner’s legal contentions that were not previously

presented to the state courts. Surely, the New York

courts are no less concerned than this Court about en-

forcement of the laws on New York highways. Indeed,

since licensing statutes are clearly within the realm of

state regulatory interests, the state courts should have

the first opportunity to address the consequences of non-

compliance with their own state regulations. Likewise,

policies as to whether a particular traffic infraction merits

a full arrest and search are particular concerns of the state

courts and legislatures. Ordinary concerns for the proper

relationship between state and federal courts require that

novel claims, such as those petitioner seeks to raise, first

be asserted in the state courts.

Similarly, the need to allow the state courts the oppor-

tunity first to consider adequate and independent state

grounds counsels against this Court’s consideration of

these claims for the first time. As we show in Point I, ante,

the New York Court of Appeals, since People v. Marsh, 20

N.Y.2d 98, 228 N.E.2d 783 (1967), has consistently held

that New York law bars the police from conducting a

search, upon stopping a motorist for a routine traffic

infraction, unless there are independent grounds to jus-

tify such an intrusion. A New York statute [Vehicle &

Traffic Law § 401] governs how officers may obtain the

VIN and other documentation from a stopped motorist

(A. 60). The New York Court of Appeals has previously

held that, under the New York Constitution, the “search

incident to arrest” doctrine is more restrictive on police

officers than its analogue under the Fourth Amendment,

as construed in New York v. Belton, 453 U.S. 454 (1981).

Under New York law, a police officer needs a specific

factual basis to justify the search of an arrestee, and there

must be a temporal and spatial nexus between the arrest

and the search. People v. Gokey, 60 N.Y.2d 309, 312, 457

N.E.2d 723 (1983); People v. Smith, 59 N.Y.2d 454, 458,

452 N.E.2d 1224 (1983). Had petitioner raised its “no

expectation of privacy” and “search incident to arrest”

claims below, the New York Court of Appeals might well

have rejected them based on state law. Surely, where

state law already substantially controls a question, this

Court should be most reluctant to reach out and decide an

issue never previously presented to the state courts. !®

Moreover, under the procedural rules of the New York

Court of Appeals, petitioner would have been barred from

presenting its present claims to the New York Court of

Appeals, as it had failed to raise them in the lower state

courts. See People v. Johnson, 64 N. Y.2d 617, 619 n.2, 474

N.E.2d 241 (1984) (State cannot urge on appeal theory of

brief, limited inquiry, where its claim in the lower court

18 The State concedes that, since Marsh, the New York Court of

Appeals has construed New York law as it relates to the issues raised

in this Court but which petitioner never asserted in the state courts

(Br. for Pet. at 44 n.*). Since New York law already bars an officer

from routinely conducting a search upon making an arrest, petitioner

misreads New York law in suggesting that the New York Court of

Appeals has left “unresolved” the question of whether an officer may

conduct a search incident to a mere traffic stop (Br. for Pet. at 44 n.*).

If New York law prohibits an officer from conducting a search rou-

tinely upon a full custodial arrest, it is illogical to suppose that an

officer would be authorized to take such action upon a mere traffic

stop. The only apparent reason why petitioner would fail to raise, in

the state courts, a legal issue on which those same courts have

already spoken extensively is that petitioner expected the state

courts to hold in favor of respondent based on New York law.

was that investigative seizure was justified based on rea-

sonable suspicion); People v. Dodt, 61 N.Y.2d 408, 416,

462 N.E.2d 1159 (1984) (where State argued in trial court

that police had probable cause to arrest defendant, State

cannot then urge on appeal that no arrest took place

because defendant voluntarily accompanied the police to

the station). Thus, had the State raised its new claims

when the case was before the New York Court of Appeals,

an adequate and independent procedural bar in New York

law would have barred that court from reaching these

propositions. See Webb v. Webb, supra, 451 U.S. at 498

n.4; Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

Because petitioner never raised its new legal conten-

tions in any of the three state courts which addressed the

propriety of the search in this case, the factual record was

not developed in such a manner as to permit evaluation of

petitioner's claims. As to the State’s claim concerning

respondent’s status as an unlicensed motorist, the record

is clearly inadequate. The record establishes only that

respondent had no driver's license the day he was stopped

by Officers Meyer and McNamee. In fact, the judge who

presided at respondent’s suppression hearing barred the

prosecutor from inquiring whether respondent ever had a

license (A. 36), because it was not relevant to any legal

issue asserted by the State in the courts below. It is pure

speculation to suggest that respondent never had a license

and, therefore, was an unsafe driver who had to be taken

off the road (Br. for Pet. at 35). It may have been that

respondent's license simply expired the day before the

police officers stopped him, that he had a license renewal

application pending, or that his license was lost, mis-

placed, or stolen. Since these factual possibilities could

affect, if not defeat, petitioner's legal claim and policy

arguments concerning the “unlicensed” motorist, peti-

tioner’s claim cannot properly be addressed.

The factual record is equally inadequate to permit eval-

uation of the State’s claim that the police should have been

permitted to search respondent's vehicle simply because

they could have arrested him for speeding. As the State’s

claim is based, in part, on the assertion that the officers’

failure to arrest respondent for his traffic infractions was

“merely fortuitous” and that they only “hesitated” to

effect a full custodial arrest in this case, the factual record

is insufficiently developed. There was, simply, no evi-

dence that respondent would have been arrested, quickly

or otherwise, merely because the officers observed him

driving 5 to 10 miles per hour above the speed limit. Nor

was there any testimony that respondent would have been

placed under arrest simply because he was driving a car

with a cracked windshield and did not have a driver's

license. There is no evidence that this was New York

Police Department policy or practice, or the routine prac-

tice of the officers who stopped respondent. Indeed, to the

extent the record was developed as to this issue, it clearly

does not help the State’s argument. Respondent was

merely given a summons for two infractions. The most

likely scenario is that, had Officer McNamee not entered

the car and found a gun, the officers would have permitted

respondent to proceed on his way. See People v. Marsh, 20

N.Y.2d 98, 102, 228 N.E.2d 783, 786 (1967) (“T]he statu-

tory scheme does not contemplate treating [the motorist]

as acommon criminal to be booked. photographed, finger-

printed and jailed.”).

The claims the State now desires to raise in this Court

are especially inappropriate for consideration without dis-

cussion below because they require determinations

regarding state licensing requirements and state prac-

tices concerning arrests for routine traffic infractions. It

would be particularly inappropriate for this Court to con-

sider these arguments without an opportunity for the

state courts first to consider definitive questions of under-

lying state law that, in view of the extensive development

of New York law as to these general matters, may render

academic any federal question. 19

'9The cases petitioner cites in support of its assertion that its

claims are properly presented for this Court’s review (Br. for Pet. at

34 n.*) are inapposite. In both Jilinois v. Gates, 462 U.S. 213 (1983),

and Steagald v. United States, 451 U.S. 204 (1981), the Court held it

could not reach the Fourth Amendment arguments the state sought

to raise, as they had not been asserted or factually developed below,

precisely the situation here. In Wilson v. Cook, 327 U.S. 474 (1946),

the Court held it could not reach an issue that was neither presented

to nor decided by the state court. Even though the question sought to

be raised in this Court was related in some way to the one presented

to the state court, and even though it arose under the same implied

federal immunity from state taxation, the argument was not properly

before the Court because it was distinct from the question decided by

the state court. /d. at 483. The same rule requires the Court to

refrain from deciding the two new issues the State seeks to raise in

the instant case. Although both issues arise under the Fourth

Amendment, they are clearly distinct from the narrow questions

presented to, and decided by, the New York Court of Appeals. In

Raley v. Ohio, 360 U.S. 423 (1959), the argument in the lower courts

was a due process claim arising from a state agency’s failure to

instruct a witness to answer or else be held in contempt. When the

case came before this Court, the petitioners contended that they

relied on positive assurances that their Fifth Amendment privilege

was available. The Court permitted this claim to be raised because it

was “only a variation” of the former theme, which was put into

sharper focus by the Ohio Supreme Court's theory of decision. Jd. at

437 n.12. Here, by contrast, petitioner proposes entirely new theo-

ries, never advanced before. Moreover, this case does not involve a

sharpening of focus of arguments considered by the state courts

because the State never gave those courts the opportunity to pass on

the contentions sought to be raised here. Since the record in the

instant case is inadequate to permit resolution of the new issues the

State wishes to raise, these issues are not properly before the Court.

Dewey v. Des Moines, 173 U.S. 193, 198 (1899). Under this Court's

precedents, thus, it is plainly not enough that the issue before this

Court involves the same general constitutional provision (i.e., the

Fourth Amendment) that was addressed in state court. Cf Sta nley v.

Illinois, 405 U.S. 645, 658 n.10 (1972). The concurring opinion in

A final reason this Court should refrain from reaching

the additional claims the State now raises is that they

were not presented in its petition for a writ of certiorari.

See Supreme Court Rules 21.1(a) and 34.1(a). For all the

foregoing reasons, this Court should decline to address

the arguments raised in Points I.C. and I.D. of peti-

tioner’s brief.

B. On The Merits, The State’s Assertion That An Unlicensed

Motorist Lacks A Reasonable Expectation Of Privacy In

A Vehicle He Lawfully Possesses Is Incorrect.

Aithough petitioner styles its claim in terms that avoid

the word “standing,”2° the State’s contention reduces

itself to the assertion that a motorist has no standing to

assert the violation of his Fourth Amendment rights sim-

ply because he lacks a driver's license. This assertion

should be soundly rejected as lacking any basis in logic or

precedent.

The State’s contention that an unlicensed motorist lacks

standing to assert a violation of his Fourth Amendment

rights arising from a search of his car is fundamentally

flawed. Under the precedents of this Court, a determina-

tion as to standing looks to whether the litigant is in

Fuller v. Oregon, 417 U.S. 40, 58 (1974) (Douglas, J., concurring), on

which the State relies, relates to a case in which one Justice, in

dissent, is criticized for raising an issue “substantially different” from

one that had previously been developed in the state courts. Finally,

Scott v. United States, 436 U.S. 128 (1978), simply is not a case where

a party raised an issue in this Court that had not been raised below.

“0 Petitioner's reluctance to cast its argument in “standing” terms

may arise from this Court’s holding, in Steagald v. United States, 451

U.S. 204, 209 (1981), that the government may not raise a “standing”

argument in this Court for the first time. As in Steugald, although the

grounds for the State’s “expectation of privacy” claim existed at the

time of the suppression hearing, this contention was never asserted

until the case came before this Court.

lawful possession of the object which is searched, and

whether he asserts his own right to be free from unrea-

sonable searches and seizures. Rakas v. Illinois, 439 U.S.

128, 139 (1978). Notably, the State concedes that respoind-

ent was in lawful possession of the car when he was

stopped by the police (Br. for Pet. at 37). Therefore, under

established law, respondent crossed the basic threshold of

“standing” to assert a violation of his Fourth Amendment

rights arising from Officer McNamee’s search of the vehi-

cle. Yet, the State urges that, although a person has

lawful possession of the chattel in question, his ability to

assert his Fourth Amendment rights can be defeated

solely by virtue of the way in which such chattel is used.

The State cites not a single case which supports this novel

proposition.

Indeed, the single hypothetical cited by the State illus-

trates the absence of any justification for the doctrine

petitioner proposes. Ifa car thief lacks standing to assert

a Fourth Amendment violation arising from a search of

the stolen car (Br. for Pet. at 36), that is because his

possession of the vehicle, ab initio, is unlawful. Thus, as a

threshold matter, since such a person had no lawful pos-

session of the chattel, he has no right to litigate any

invasion of privacy with respect to it. By contrast, a

motorist, irrespective of his licensed status, has an estab-

lished possessory interest, and thus has legitimate expec-

tations of privacy, in the vehicle.

Nor is there any logic to the State’s assertion that

respondent lost his expectations of privacy by turning on

the ignition and driving down the highway (Br. for Pet. at

37-38). The State’s contention rests on two assumptions:

first, that when respondent commenced driving the vehi-

cle, he had to expect that he would commit an act which

would give rise to a lawful stop of his car by the police; and

second, that, upon being stopped, respondent “had” to

have known that the police would search his vehicle (Br.

for Pet. at 35-36). Based on these assumptions, the State

retrospectively concludes that respondent had no expec-

tation of privacy when he first commenced operation of

the vehicle. Not only is this argument unacceptably

attenuated, but it also rests on pure speculation. There is

no evidence that respondent had reason to believe that he

would be stopped. Moreover, the fact that he closed the

door of his car when he got out to talk with the police

officers indicates that respondent had a clear expectation

of privacy with respect to the vehicle's interior. Finally,

the State cannot reasonably assert that respondent “had”

to have known that his vehicle would eventually be

searched. In fact, on this record, there is every reason to

believe that the officers here would merely have issued

respondent a summons and would have allowed him to

proceed, had Officer McNamee not entered the car and

found a weapon. See People v. Howell, 49 N. Y.2d 778, 779,

403 N.E.2d 182 (1980) (arrest is neither called for nor

preferred procedure when motorist is stopped for reck-

less driving, a misdemeanor). The State cites no evidence

in support of its assertion (Br. for Pet. at 35) that the

police would, in fact, have placed respondent under arrest

for his traffic infractions alone.2! Nor does the State

“1 Notably absent from this record is any support for the State’s

contention (Br. for Pet. at 35, 37) that any “presumption” of danger

arises with regard to unlicensed motorists, which would presumably

lend suppori to petitioner's assertion that the police officers neces-

sarily would have taken respondent into custody on this ground

alone. In New York, driving without a license is classified as a

violation, for which a fine from $100 to $200 may be levied. New York

Vehicle & Traffic Law § 509 (McKinney Supp. 1984-1985). There is no

basis to assert, as does the State, that a driver who simply lacks a

license can be compared to a person who attempts to drive while

intoxicated (Br. for Pet. at 35 n.*). The extreme hazard posed by

intoxicated motorists is such that one cannot conceive of a con-

scientious police officer permitting such a driver to proceed on his

way. See Welsh v. Wisconsin, 466 U.S. , 80 L.Ed.2d 732, 746-747

(1984) (Blackmun, J., concu;ring).

ee ——— =

advance any support, statistical or otherwise, for its con-

tention that the vehicle would have been searched.

Mere unlawful use of chattel cannot defeat a person's

previously attached, threshold entitlement to assert a

violation of his Fourth Amendment rights to such chattel.

Such unlawful use is relevant only to the subsequent

determination of the ultimate Fourth Amendment claim.

Thus, for instance, unlawful operation of a vehicle might

lead to consequences under a state’s regulatory statutes

or penal laws, or, if a police officer knows of such a viola-

tion, the officer’s knowledge may be considered in assess-

ing the reasonableness of the officer’s intrusion. The same

rule applies in other settings. A person in lawful posses-

sion of premises, even if those premises are used illegally,

has the right to insist that the police abide by the require-

ments of the Fourth Amendment when they intrude upon

his possessory and privacy interests therein. While the

illegal use of premises, if known by the police, may itself

serve as a justification for a police intrusion on such prem-

ises, the mere fact of such illegal use is not sufficient to

deprive the person of his threshold right to challenge the

reasonableness of the intrusier under the Fourth Amend-

ment. What the State suggests in the instant case is that a

person, solely because of his illegal use of given property,

could not complain of a Fourth Amendment violation,

even where the police defy legal processes and do so

without any knowledge of the illegal use.

The logical extension of a “standing” doctrine that turns

on a person’ illegal use of property he lawfully possesses

illustrates the bankruptcy of the doctrine itself. For

example, a person who is in lawful possession of premises,

whose lawful possession thereof gives him an expectation

of privacy therein, an invasion of which he has a right to

litigate under the existing precedents of this Court, would

lose standing solely on the ground that such premises are

used illegally, such as for gambling [McDonald v. United

States, 335 U.S. 451 (1948)] or narcotics [Johnson v.

United States, 333 U.S. 10 (1948)], or in violation of some

local zoning, licensing, labor or health regulation.

Ultimately, the State’s contention is that a person who has

an established possessory or privacy interest in property

loses standing to challenge an invasion of such interests

merely on the assumption that he must expect that his

unlawful use of his property might come to light. This

contention suggests that anyone who violates the law

lacks standing to object to any violation of his rights under

the Fourth Amendment.

The simple fact that a motorist lacks the same degree of

privacy in his automobile that a person has within his own

home, cf. South Dakota v. Opperman, 428 U.S. 364, 367

(1976), in no way supports the State’s assertion that a

motorist lawfully in possession of an automobile, who

merely lacks a driver's license, forfeits all expectation of

privacy, as might someone who has already been tried,

sentenced and imprisoned for a criminal offense, such as a

prisoner [Hudson v. Palmer, 468 U.S. ——, 82 L.Ed.2d

393 (1984)] or an escaped convict [United States v. Roy,

734 F.2d 108 (2d Cir. 1984)] (Br. for Pet. at 36-37). The

State’s contention is entirely lacking in merit.

In sum, the State has no support in logic or precedent

for its claim that unlawful use of property defeats estab-

lished possessory and privacy rights therein. Once a pos-

sessory interest and expectation of privacy is established,

the threshold criterion of standing is met. Unlawful use of

chattel is then relevant to the substantive Fourth Amend-

ment analysis, but does not operate to deprive the lawful

possessor of his already vested entitlement to challenge

an invasion of his possessory interest in such chattel. A

contrary result would create a wholesale exception to this

Court’s standing doctrine for anyone whose use of chattel

is in technical violation of the law. Such cannot possibly be

the case if the Constitution is to have any continuing

vitality in a world where regulatory statutes cover nearly

every aspect of modern life.

C. On The Merits, The “Search Incident To Arrest” Doc-

trine Does Not Apply Where The Police, Although Autho-

rized To Arrest A Motorist For A Traffic Infraction, Do

Not Take Such Action.

The State’s assertion that a police officer is entitled to

conduct a search of an automobile whenever he is author-

ized to make an arrest, but does not take such action, is

fundamentally flawed because it seeks to have this Court

create a “search incident to possible arrest” doctrine.

Such a doctrine finds no support in the history or sound

policies of the Fourth Amendment. Rather, the State

seeks to turn the narrow “search incident to arrest” doc-

trine on its head and apply it to a situation where none of

the justifications for the doctrine exist.

In United States v. Robinson, 414 U.S. 218, 235 (1973),

this Court explained the rationale behind the “search

incident to arrest” doctrine as follows:

A custodial arrest of a suspect based on probable

cause is a reasonable intrusion under the Fourth

Amendment; that intrusion being lawful, a search

incident to the arrest requires no additional justifica-

tion. It is the fact of the lawful arrest which estab-

lishes the authority to search, and we hold that in the

case of a lawful custodial arrest a full search of the

person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a

“reasonable” search under that Amendment.

Similarly, in New York v. Belton, 453 U.S. 454, 457 (1981),

the Court wrote that the “search incident to arrest” doc-

trine adopted in Chime v. California, 395 U.S. 752

(1969), provides “that a lawful custodial arrest creates a

situation which justifies the contemporaneous search” of

the arrestee.

One rationale for the “search incident to arrest” doc-

trine is the fact that, once a person is placed under arrest,

that person retains little further expectation of privacy.

United States v. Chadwick, 433 U.S. 1, 16 n.10 (1977).

This rationale is inapplicable to a case where, as here, the

person is not placed under arrest. Other reasons for the

doctrine are the need to “disarm the suspect in order to

take him into custody,” United States v. Robinson, supra,

441 U.S. at 234, and to prevent the suspect from escaping,

Abel v. United States, 362 U.S. 217, 236 (1960). These

reasons are equally inapplicable to the instant case, for

there is no suggestion or evidence that Officers Meyer and

McNamee were ever in danger, or that they had any

intention to arrest respondent for his traffic infractions. A

final justification for the “search incident to arrest” doc-

trine is the need to preserve evidence, which, as this

Court recently held, is inapplicable in an ordinary inves-

tigative stop such as occurred in the instant case. Michi-

gan v. Long, 463 U.S. 1032, 1049 n.14 (1983).

Moreover, to the extent the State relies on “the risks

inherent in a traffic stop” as a basis for authorizing a

“protective search of the vehicle” incident to a traffic stop

(Br. for Pet. at 42), petitioner ignores the significance of

Michigan v. Long, supra, 463 U.S. 1032. There, the

Court authorized such a protective search only where

there was a factual basis for the officer to fear for his

safety. (Here, of course, there is no such evidence.) Thus,

by implication, the mere fact of the traffic stop is insuffi-

cient to justify an intrusion into the vehicle.

Because of the narrow and limited nature of the “search

incident to arrest” doctrine, for this rule to apply there

must first be a lawful custodial arrest: “a search incident

to a lawful arrest may not precede the arrest and serve as

part of its justification.” Sibron v. New York, 392 U.S. 40,

67 (1968); see also People v. Evans, 43 N.Y.2d 160,

164-166, 371 N.E.2d 528, 531-532 (1977); People v. Erwin,

42 N.Y.2d 1064, 369 N.E.2d 1170 (1977).

It bears repetition (see Point I, ante) that, in New York,

an arrest for an ordinary traffic violation such as the ones

respondent committed in this case is anything but a fore-

gone conclusion. In People v. Howell, 49 N. Y.2d 778, 779,

403 N.E.2d 182 (1980), the New York Court of Appeals

wrote that the trial court

was in error in its conclusion that merely because

reckless driving is a misdemeanor rather - a traf-

fic violation, the arrest was inevitable. An arrest ina

situation such as was presented in this case was nei-

ther called for nor the preferred procedure.

If an arrest would not necessurily ensue in a case where

the motorist has committed the misdemeanor of reckless

driving, surely petitioner overstates its case in asserting

that it was “merely fortuitous” (Br. for Pet. at 38) that the

officers did not arrest respondent for having committed

the traffic infractions of driving a car without a license and

operating a vehicle with a cracked windshield, neither of

which is even classified as a misdemeanor in New York.

New York Vehicle & Traffic Law §§ 155, 375(22), 509(1)

(McKinney Supp. 1984-1985). Neither inevitable nor “pre-

ferred” in New York, an arrest in the instant case was

highly unlikely, as the officers did not even issue respon-

dent a summons for a speeding violation [New York Vehi-

cle & Traffic Law § 1180 (McKinney Supp. 1984-1985)] or

claim that they would have arrested him for either of the

two remaining violations.

Since the police did not arrest respondent for his traffic

infractions, and there is no reason, either based on estab-

lished practice or on this record, to assume they would

have done so, the “search incident to arrest” doctrine is

inapplicable. Applying the doctrine to cases in which the

police are authorized to arrest a citizen for a petty offense,

but they neither take nor intend to take such action,

o— —_—~ — a -_—-

would grant the police power to conduct searches in a

limitless array of situations, thus substantially negating

the public’s right to be free from unreasonable searches

and seizures. Adoption of the doctrine proposed by the

State would thus lead to the illogical result of the police

having power to search property belonging to citizens

stopped for any number of petty offenses that the police

themselves deem unworthy of an arrest.

The “search incident to arrest” doctrine is a limited,

narrowly defined, exception to the general rule that pro-

hibits a search in the absence of a warrant issued upon

probable cause. Mincey v. Arizona, 437 U.S. 385, 390

(1978). There is no cause to expand the doctrine to a

situation where, as here, none of its justifications exist.

CONCLUSION

For the reasons stated in Point I, the writ should be

dismissed. In the alternative, for the reasons stated in

Points II and III, the judgment should be affirmed.

Respectfully submitted,

MARK C. CoGAN

WILLIAM E. HELLERSTEIN*

The Legal Aid Society

15 Park Row—18th Floor

MIRIAM J. HIBEL New York, New York, 10038

On the Brief (212) 577-3420

Attorneys for Respondent

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.