Reply Brief — New York v. Class

Opreme Court, U.S.

| FILED

No. 84-1181~ OCT 1? 066

JOSEPH F. SPANIOL, JR

CLERK

IN THE yr

Supreme Cot of the United States

October Term, 1985

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

agammst

BENIGNO CLASS,

Respondent.

On Writ of Certiorari to the Court of Appeals

of the State of New York

REPLY BRIEF FOR THE PETITIONER

Mario Mrroua

District Attorney

Bronx County

215 East 161st Street

Bronx, New York 10451

(212) 590-2060

Counsel for Petitioner

Sreven R. KarraGENER

Rocze L. Stavis

Assistant District Attorneys

Of Counsel

BEST AVAILABLE COPY §

Oro nr or 8 OOS

TABLE OF CONTENTS

Point One The issues raised by petitioner are prop-

erly hefore this Court

A. This Court Has Jurisdiction To Review

Petitioner’s Claim

B. The Reeord Below Supports

Petitioner’s

Arguments

Point Two—The routine inspection of respondent’s

VIN plate following the lawful stop of his vehicle

for a traffic violation was reasonable and, thus,

lawful

Conclusion

TABLE OF AUTHORITIES

Cases:

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

Cady v. Dombrowski, 415 U.S. 433 (1973)

California v. Beheler, 463 U.S. 1121 (1983)

California v. Carney, US. —, 85 L.Ed.2d 406

(1985)

Camara v. Municipal Court, 387 U.S. 525 (1967)

Cardinale v. Louisiana, 394 U.S. 437 (1969)

Coolidge v. New Hampshire, 403 U.S. 445 (1971)

Delaware v. Prouse, 440 U.S. 648 (1979)

Dewey v. Des Moines, 173 U.S. 1935 (1899)

Dunaway v. New York, 442 U.S. 200 (1979)

Florida v. Royer, 460 1.8. 491 (1983)

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

Illinois v. Gates, 462 U.S. 213 (1983) 9,

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

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)

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

Michigan v. Summers, 452 U.S. 692 (1981)

New Jersey v. T.L.0., —— U.S. , 83 L.Ed.2d 720

(1985)

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

Ohio v. Johnson, — U.S. -—, 81 L.Ed.2d 425

(1985)

Oliver v. United States, —— U.S. , 80 L.Ed.2d

214 (1984)

Oregon v. Kennedy, 456 U.S. 667 (1982)

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

PAGE

Pennsyivania v. Mimms, 434 U.S. 106 (1977) 13, 14, 15

People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902,

423 N.E.2d 379 (1981)

People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314

N.E.2d 39 (1974)

People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d

421, 400 N.E.2d 360 (1980)

People v. David L., 56 N.Y.2d 698, 451 N.Y.S.2d 722,

436 N.E.2d 1324, cert. denied, 459 U.S. 866 (1982)

People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 650,

406 N.E.2d 471 (1980)

People v. Gokey, 60 N.Y.2d 3509, 469 N.Y.S.2d 618,

457 N.E.2d 723 (1983)

People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199,

443 N.B.2d 447 (1982)

People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 225

N.E.2d 783 (1967)

People v. Melntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837,

324 N.E.2d 322 (1974)

People v. Miller, 43 N.Y.2d 789, 402 N.Y.S.2d 392, 375

N.E.2d 286 (1977)

People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 510

N.E.2d 452 (1974)

People v. Sullivan, 29 N.Y.2d 69, 32.

972 N.E.2d 464 (1971)

to

7

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no

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

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

South Dakota v. Neville, 459 U.S. 553 (1983)

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

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

Terry v. Ohio, 392 U.S. 1 (1968)

Texas v. Brown, 460 U.S. 730 (1983) 3

PAGE

United States v. Chadwick, 433 U.S. 1 (1977) 3

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 14

United States v. Place, 462 U.S. 696 (1983) 3

United States v. Sharpe, —— U.S. ——, 105 8.Ct. 1568

(1985) 15

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

(1983) 13

Wilson v. Cook, 327 U.S. 474 (1946) 10

Zacchini v. Scripps-Howard Broadcasting Co., 433

U.S. 562 (1977) 4

Constitutional and Statutory Provisions:

United States Constitution, Fourth Amendment passim

New York Criminal Procedure Law § 140.10(2) (Me-

Kinney 1984) 12

New York Vehicle & Traffic Law § 155 (McKinney

1984) 12

New York Vehicle & Traffic Law § 401(4) (McKinney

1984) 7

Other Authorities:

FBI, Press Release of May 12, 1985 5

FBI, Press Release of August 18, 1985 5

R. Stern and E. Gressman, Supreme Court Practice

(5th ed. 1978) 10

A Uniform System of Citation (13th ed. 1981) 5

No. 84-1181

IN THE

Supreme Court of the United States

October Term, 1985

THe PEOPLE OF THE StaTE OF New YOrE,

Petitioner,

agatnst

Benteno Cass,

Respondent.

On Writ of Certiorari to the Court of Appeals

of the State of New York

REPLY BRIEF FOR THE PETITIONER

POINT ONE

The issues raised by petitioner are properly before

this Court.

In his brief, respondent asserts that the issues raised by

petitioner are not properly before this Court because the

decision of the New York Court of Appeals rested upon an

‘adequate and independent state ground’’ (Resp. Br. 9-15)

and because the factual record is insufficient to support

petitioner’s arguments before this Court (Resp. Br. 34-41).

Both of these contentions are meritless. Under this Court’s

decision in Michigan v. Long, 46° U.S.1032, 77 L.Ed.2d 1201

(1983), the opinion of the New York Court of Appeals,

which repeatedly refers to the Fourth Amendment and

decisions of this Court construing that amendment and

makes only a single, fleeting reference to the state constitu-

tion, could not be based on an ‘‘adequate and independent

state ground’’ and, furthermore, the record below is more

than sufficient to support petitioner’s arguments.

A. This Court Has Jurisdiction To

Review Petitioner’s Claim

In a quixotic attempt to have the writ of certiorari dis-

missed, respondent challenges this Court’s jurisdiction by

claiming that the decision of the New York Court of Appeals

is ‘‘expressly predicated’’ on the state constitution (Resp.

Br. 9) and, thus, rests upon an ‘‘adequate and independ-

ent state ground.’’ In order to make such a challenge how-

ever, respondent is required not only to ignore the opinion

written by the state court, but also to misconstrue this

Court’s holding in Michigan vy. Long, 77 L.E.2d 1201, as

applied to that opinion.

In Michigan v. Long, supra, the state court relied on

federal cases, but held the search in question violative of

both the federal and state constitutions. Jd. at 1212. Not-

withstanding the specific reliance of the state court on its

own constitution, this Court found no ‘‘adequate and in-

dependent state ground’’ and adopted a ‘‘consistent ap-

proach’’ [id. at 1213] to guide its determination of future

cases. Under that approach, where a state court decision

appears either to rest on federal law or be ‘‘interwoven’’

with federal law, the Court will ‘‘assume,’’ absent a ‘‘ plain

statement’’ to the contrary, that the state court decided the

case on federal grounds. I/d. at 1214. Notwithstanding the

clear application of Long to the opinion below, which re-

peatedly cites the Fourth Amendment and cases from this

Court construing that amendment, and which does not

contain a contrary ‘‘plain statement’’ that the opinion rests

on truly independent state grounds, respondent neverthe-

less feebly argues that ‘‘. . . because the adequacy and in-

dependence of the state ground is clear from the face of the

state court’s opinion . . . Long does not apply’’ (Resp.

Br. 9). His claim is completely meritless, as even the most

cursory examination of the opirion itself reveals that the

presence of an adequate and independent state ground is

anything but. ‘‘clear’’ and, in fact, an alternate state

ground that could serve to divest this Court of jurisdiction

to hear the instant case is wholly absent from the text of

the lower court opinion.

Indeed, the sole reference to the state constitution ap-

pears in the opening paragraph where the court holds the

search violative of both the federal and state constitutions

(A. 55).* This perfunctory reference to the state constitu-

tion is mere surplusage to the court’s examination of the

federal constitution, and is wholly insufficient to defeat this

Court’s jurisdiction. See California v. Carney, —— U.S.

, 85 L.Ed.2d 406, 412 n.1 (1985); Michigan v. Long, 77

L.Ed.2d at 1212: South Dakota v. Neville, 459 U.S. 553,

74 L.Ed.2d 748, 754 n.5 (1983); Delaware v. Prouse, 440

U.S. 648, 651-652 (1979) (jurisdiction upheld where state

courts relied on both federal and state constitutions). This

is especially true because following that singular reference,

the New York Court of Appeals, relying on this Court’s

decisions in United States v. Chadwick, 433 U.S. 1, 7 (1977)

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

‘‘Tt]he Fourth Amendment ‘protects people from unreason-

able government intrusions into their legitimate expecta-

tions of privacy’ ’’ (A. 57), and then, relying on Tewas v.

Brown. 460 U.S. 730 (1983), continues that ‘‘. . . simply

peering inside an automobile does not constitute a search

and the Fourth Amendment consequently does not limit

this activity’? (A. 57) before relying on this Court’s de-

cision in United States v. Place, 462 U.S. 696 (1983), for

*Numerals preceded by “A.” refer to pages of the Joint

Appendix.

4

its conclusion that a search oveurred in the instant case*

because the officer exposed ‘‘hidden areas’’ (A. 57). What

is ‘‘elear,’’ in the end, is that the New York Court of

Appeals’ reliance on the Fourth Amendment and cases from

this Court construing that amendment, establishes the

substantial federal basis for the decision. See Ohio v.

Johnson, —— U.S. ——, 81 L.Ed.2d 425 (1984); Texas v.

Brown, 75 L.Ed.2d at 507 n.1 (1983); Zacchini v. Scripps-

Howard Broadcasting Co., 483 U.S. 562, 566-567 (1977) -

(jurisdiction upheld where state courts relied on Supreme

Court precedent).

Moreover, even the New York Court of Appeals’ de-

cisions relied upon by that court in its opinion below, were

based on federal law. The decisions in People v. Harrison,

57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 (1982) (A.

59), People v. Miller, 43 N.Y.2d 789, 402 N.Y.S.2d 392, 373

N.E.2d 286 (1977), aff’g, 52 A.D.2d 425, 385 N.Y.S.2d 457

(1st Dept. 1976) (A. 57) and People v. Sullivan, 29 N.Y.2d

69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971) (A. 57) all re-

lied exclusively on the Fourth Amendment, while the cases

of People v. David L., 56 N.Y.2d 698, 451 N.Y.S.2d 733, 436

N.E.2d 1324, cert. denied, 459 U.S. 866 (1982), rev’g on

dissenting op., 81 A.D.2d 893, 439 N.Y.S.2d 152 (2d Dept.)

(A. 59) and People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d

383, 315 N.E.2d 452 (1974) (A. 57) cited to both the federal

and state constitutions, but relied almost exclusively on this

Court’s decisions. See Olwer v. United States, —— U.S.

, 80 L.Ed.2d 214, 222 n.5 (1984) ; California v. Beheler,

463 U.S. 1121, 77 L.Ed.2d 1275, 1278 n.1 (1983); Oregon v.

Kennedy, 456 U.S. 667, 671 (1982) (jurisdiction upheld

where state court relied on state cases interpreting federal

law). In fact, of the numerous cases cited in the court’s

opinion, only People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d

709, 314 N.E.2d 39 (1974) (A. 57) and People v. Marsh, 20

* Petitioner challenged this conclusion in our opening brief

(Pet. Br. 16-27).

N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967) (A. 59)

were decided on the basis of state law and those cases are

not relied on as square support for the proposition that

the type of police action involved here was unlawful.

Although respondent now claims that People v. Marsh,

20 N.Y.2d 98 serves as the ‘‘foundation’’ for the court’s

decision (Resp. Br. 10), it is interesting to note that Marsh

is not discussed, but merely cited once in the opinion (A.

59) and, even at that, is preceded by the signal ‘‘cf.’’ which

indicates that it ‘*... supports a proposition different from

the main proposition but sufficiently analogous to lend sup-

port.’’ A Uniform System of Citation (‘‘The Bluebook’’)

at p. 9 (13th ed. 1981) (emphasis added). Clearly then,

Marsh could not serve at the ‘‘foundation’’ for the court’s

decision.

Indeed, respondent’s extended discourse on Marsh and

the present state of New York search and seizure iaw (Resp.

Br. 10-13)* is quite unnecessary in light of this Court’s

statement in Michigan v. Long, 77 L.Ed.2d at 1214 that it

did ‘*.. . not wish to continue to decide issues of state law

that go beyond the opinion that we review... .’’ Since

the New York Court of Appeals’ opinion discusses neither

Marsh, nor the development of New York law in this area,

* As we argued in our opening brief, People v. Marsh, 20 N.Y.2d

at 101, decided in 1967, prohibited searches of the person incident to

arrests for routine traffic violations on the ground that traffic viola-

tions pose no danger to police officers; a premise which has been

tragically disproven in the eighteen years since that case was decided

(Pet. Br. 44n). Although our opening brief provided statistics con-

cerning police officers killed during the routine traffic violation which

Marsh found so harmless (Pet. Br. 41n), since the filing of our open-

ing brief, new statistics for the first six months of 1985 have been

compiled which reveal a startling increase in the number of police

officers killed during routine traffic stops. Oc the 44 police officers

killed during the first six months of 1985, 10 or 23% were killed

during routine traffic stops [source: FBI, Press Release of August 18,

1985] as contrasted with 1984 when, of the 72 officers killed in the

line of duty, 8 or 11% were killed during routine traffic stops. Source

FBI, Press Release of May 12, 1985.

6

but chooses instead to rely upon the Fourth Amendment,

respondent’s detailed discussion of Marsh (Resp. Br. 10-13)

is not only unnecessary, but largely irrelevant.

What is relevant, however, is that the New York Court

of Appeals has a ‘‘long tradition’’ (Resp. Br. 13) of ex-

panding the rights of criminal defendants under the state

constitution. Significantly though, in prior instances in

which the New York Court of Appeals has construed its

own constitution more broadly than the federal constitution,

it has done so clearly and unequivocally, announcing specifi-

cally that its ultimate decision was based on the New York

constitution alone. See, e.g., rg om v. Gokey, 60 N.Y.2d

309, 469 N.Y.S.2d 618, 457 N.E.2d 723 (1983) (although the

Fourth Amendment would have teenth the search of a

duffle bag as incident to the arrest, the search was unlawful

under the New York constitution); People v. Adams, 53

N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379 (1981) (al-

though the Supreme Court under the federal constitution

would admit evidence of a suggestive, though reliable iden-

tification, such evidence is not admissible under the New

York constitution) ; People v. Elwell, 50 N.Y.2d 231, 241, 428

N.Y.S.2d 655, 406 N.E.2d 471 (1980) (although the Supreme

Court under the federal constitution would have found that

the informant provided the police with probable cause to

effect a warrantless arrest of the defendant, the New York

constitution required that the officers personally observe

additional indicia & Meee yy ie People v. Cunningham,

49 N.Y.2d 203, 207, N.Y.8.2d 421, 400 N. E. 2d 360 (1980)

(although the bndcenae Cc ourt had not construed the federal

constitution so broadly, as a matter of state constitutional

law, once a suspect in custody requests the assistance of

counsel, he may not thereafter, despite a desire to do so,

be questioned further without the presence of counsel) ; see

also, People v. McIntyre, 36 N.Y.2d 10, 15, 364 N.Y.S.2d

837, 324 N.E.2d 322 (1974) (although the Supreme Court

had not yet recognized the federal constitutional right of a

criminal defendant to proceed pro se, the New York con-

stitution clearly recognized such a right).

That the New York Court of Appeals, with this ‘‘long

tradition’’ of unequivocally pronouncing its reliance on the

New York constitution to expand defendants’ rights, refuses

to make such a pronouncement in its opinion below, is no

mere coincidence. On the contrary, the court’s reticence

in this regard, when coupled with its repeated citation to

the Fourth Amendment and this Court’s decisions constru-

ing that amendment, makes crystal clear its intention to

base the decision below on the federal constitution.

Indeed, the clarity of the court’s intention to base its

decision on federal grounds is not blurred by the discussion,

toward the conclusion of the opinion, of New York Vehicle

& Traffic Law § 401(4) (McKinney 1984). Although re-

spondent maintains that the New York Court of Appeals’

parting reference to this statute establishes an adequate

and independent state ground (Resp. Br. 12-13), an exam-

ination of the statute itself, omitted from respondent’s brief,

proves that it could not conceivably constitute such an

adequate and independent state ground.

New York Vehicle & Traffic Law § 401(4) (McKinney

1984) provides, in pertinent part:

Carrying certificate of registration. Every person

operating a motor vehicle or a motor vehicle and a

trailer, registered or transferred in accordance with

any of the provisions of this chapter, shall upon de-

mand of any magistrate, motor vehicle inspector, peace

officer, acting pursuant to his special duties, or police

officer produce for inspection the certificate of regis-

tration or the registration renewal stub for such vehicle

and shall furnish to such magistrate, inspector, peace

officer or police officer any information necessary for

the identification of such vehicle and its owner, and all

information required concerning his license to operate,

8

if he is required by law to have such a license, and

shall, if required, sign his name in the presence of such

magistrate, inspector, peace officer or police officer as

a further means of identification (A. 59).

Plainly, this statutory provision, which is administrative in

nature, expressly assures a police officer’s right to demand

a motorist’s license and registration, and does not address

the right of a police officer to search or inspect that motor-

ist’s vehicle. For this reason, the New York Court of Ap-

peals refuses to authorize the instant VIN inspection under

this largely inapposite statute. However, respondent has

seriously erred by equating this refusal to find authority

in that statute for a VIN inspection, with an argument that

the statute constitutes an independent state ground pro-

hibiting the VIN inspection. Neither by its language, nor

by the lower court’s opinion, can this statute be construed

as affirmatively prohibiting the type of police conduct which

occurred here. Rather, according to the New York Court

of Appeals, only the Fourth Amendment constitutes such a

prohibition and had that amendment not prohibited the

search, no state statute would have prevented the officers

from undertaking the VIN inspection. Therefore, this

Court has jurisdiction to review petitioner’s claim.

B. The Record Below Supports Petitioner’s Arguments

Throughout the litigation of this case in the New York

courts, petitioner has consistently asserted that the search

of respondent’s vehicle was reasonable under the Fourth

Amendment. In our opening brief, we proffered two al-

ternative theories concerning the reasonableness of the

search which had not been pursued in the state courts (Pet.

Br. 34-49). Respondent now claims that these new ana-

lytical approaches cannot be considered by this Court, but

his claim is meritless because the new approaches, which

are based on the identical issue raised in both the state

courts and our petition for certiorari, are fully supported

by the record.

9

At the outset, it should be noted that respondent is

correct in his assertion that ‘‘[a] long-standing rule of

this Court bars review of questions urged by a petitioner

or appellant that were not presented to or passed on by

the lower courts’’ (Resp. Br. 34) (emphasis added). He

has seriously erred however, in claiming that petitioner has

somehow changed the question from that raised in the New

York courts. That question is, was, and remains whether

the search of respondent’s vehicle was reasonable under

the Fourth Amendment and only the analysis of that ques-

tion has changed. Petitioner presents this Court with two

new analytical! approches to the unchanged question of

reasonableness under the Fourth Amendment: one provides

that respondent’s status as an unlicensed driver deprived

him of any legitimate and reasonable expectation of pri-

vacy with regard to the vehicle’s passenger compartment,

rendering its search reasonable under the Fourth Amend-

ment (Pet. Br. 34-38); and the other provides that the

search of the passenger compartment was reasonable and,

thus, lawful under this Court’s holding in New York v.

Belton, 453 U.S. 454 (1981) as incident to respondent’s

seizure for a traffic violation (Pet. Br. 38-49).

Apparently, respondent has seemed to confuse the rule

of this Court prohibiting the raising of new questions or

claims, with the equally well established rule allowing

parties to raise new or alternative theories in support of

the claims or questions previously raised in state court.

See Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 554 (1983)

(White, J., coneurring) (‘‘We have never suggested that

the jurisdictional stipulations of § 1257 require that all

arguments on behalf of, let alone in opposition to, a federal

claim be raised and decided below.’’); Scott v. United

States, 436 U.S. 128, 1388 (1978) (search may be sustained

under a different theory than that used initially to justify

it); Fuller v. Oregon, 417 U.S. 40, 58 (1974) (The Court may

adopt alternative theories from those raised in state courts

10

provided the federal question is not rendered ‘‘substantially

different.’’); Stanley v. Illinois, 405 U.S. 645, 658 n.10

(1972) (The Court’s method of analysis may differ from

that utilized by the lower court); Raley v. Ohio, 360 U.S.

423, 437 n.12 (1959) (arguments may vary from those

raised below); Dewey v. Des Moines, 173 U.S. 193, 198

(1899) (‘*Parties are not confined here to the same ar-

guments which were advanced in the courts below upon a

federal question there discussed.’’); see also R. Stern and

EK. Gressman, Supreme Court Practice 230 (5th ed. 1978)

(a litigant ‘‘may advance different theories or arguments

in support of the questions raised in the state courts.’’);

cf. Wilson v. Cook, 327 U.S. 474, 483 (1946) (argument

raised before the Court was no mere ‘‘enlargement’’ of the

one raised in state court but was ‘‘so distinct’’ that the

Court would not consider it). Taken to its logical extreme,

respondent’s argument equating the raising of new ques-

tions with the use of new or alternative arguments, would

require all litigants before this Court to file briefs essen-

tially identical to those filed in state court lest they fear

rejection of their claims for even the slightest deviation in

their analyses. Obviously, this Court has never endorsed

such a practice and alternative theories in support of claims

raised in lower courts have always been included in briefs

and reviewed by this Court. Accordingly, this Court may

review petitioner’s new analytical approaches to the iden-

tical question raised in the state courts, our petition for cer-

tiorari and our opening brief, i.e., whether the search of

respondent’s vehicle was reasonable under the Fourth

Amendment.

Indeed, this Court may review these new arguments

notwithstanding its decision in J/llinois v. Gates, 76 L.Ed.2d

572 and Steagald v. United States, 451 U.S. 204 (1981),

upon which respondent relies so heavily (Resp. Br. 35-36).

Those cases raised for the first time on writ of certiorari,

respectively, claims of a ‘‘good faith’’ exception to the

1]

exclusionary rule and defendant’s lack of ‘‘standing’”’

to contest the search; threshold issues regarding the remedy

or right to seek a remedy under the Fourth Amendment as

distinguished from the reasonableness of the searches them-

selves under that amendment. Thus, in marked contrast to

the instant case, those cases clearly concerned ‘‘substan-

tially different’? [Fwler v. Oregon, 417 U.S. at 58] claims

and not just new theories. In fact, Gates and Steagald

involved claims that were so radically different from those

raised in the lower courts, that the records in the cases were

woefully inadequate to support either the ‘‘good faith’’ of

the police officers or the privacy interests necessary for

defendant to have ‘‘standing.’’ See Illinois v. Gates, 76

L.Ed.2d at 537: Steagald v. United States. 451 U.S. at 210;

see also Cardinale v. Louisiana, 394 U.S. 437, 439 (1969).

Here, however, petitioner’s new theories concerning the

reasonableness of the search have more than ample support

in the record. The record contains the following testimony

concerning respondent’s status as an unlicensed driver:

Q. Mr. Class, the day you were stopped by police

did you have a license on you?

A. No.

The Court: You have to speak up.

A. No, sil

Q). On that day, were you a licensed operator!

A. No.

(A. 36). Obviously then, not only was respondent missing

his driver’s license when the police stopped him, but he

* Although respondent characterizes our argument concerning his

status as an unlicensed driver (Pet. Br. 34-38) as a “standing” argu-

ment (Resp. Br. 41-46), in fact, it is not, and relates solely to re-

spondent’s expectation of privacy as it bears on the reasonableness of

the intrusion or search involved, which we agree he had the right to

contest.

12

was not even a licensed driver at that time.* The record

could not conceivably have been more clear on this issue.

Equally clear from the record was respondent’s com-

mission of various traffic violations (A. 12, 13, 19, 21).

Although respondent laments the absence of ‘‘. . . evidence

that respondent would have been arrested .. .’’ (Resp. Br.

39) (emphasis added) for these traffic violations, such

evidence plays no role in the formulation of our argument.

In our opening brief we argue only that based on his traffic

violations, New York Law [N.Y. Crim. Proce. Law

» 140.10(2) (McKinney 1984); N.Y. Veh. & Traf. Law § 155

(McKinney 1984)] provides that respondent cowld have

been arrested, and it is this power to arrest from which the

right to search evolves (Pet. Br. 38-49). What the officers

would have done is quite irrelevant insofar as our argu-

ment, after the establishment of the traffic violations them-

selves, is legal and not factual in nature. Thus, the evidence

in the record concerning the traffic violations is more than

sufficient to support our purely legal argument that re-

spondent could have been arrested for the traffic violations

and, hence, his ear could have been searched. Therefore,

petitioner’s claims are fully supported by the record and

are properly before this Court.

POINT TWO

The routine inspection of respondent’s VIN plate

following the lawful stop of his vehicle for a traffic

violation was reasonable and, thus, lawful.

n our opening brief we advance several alternative

theories in support of the instant VIN inspection, including

the argument that probable cause existed to arrest respond-

ent, not for car theft, but for a traffic violation, and that

* The record also establishes that respondent was issued a sum-

mons for being an unlicensed operator (A. 19)

13

this fact justified a VIN inspection (Pet. Br. 32). Though

our arguments are diverse, they are bound together by a

single theme: the reasonableness of the police conduct.

Nevertheless, foresaking any attempt to analyze the police

conduct for its reasonableness, respondent argues in his

brief that since the VIN inspection was unsupported by

either ‘‘probable cause’’ or ‘‘reasonable suspicion’’ to be-

lieve the vehicle was stolen, it was per se violative of the

Fourth Amendment (Resp. Br. 22-34). This analytical

approach is fundamentally flawed, however, because it

ignores the ultimate question of reasonableness under the

Fourth Amendment; a question not amenable to easy reso-

lution through reflexive reliance on neat, familiar concepts

such as ‘‘ probable cause’’ or ‘‘reasonable suspicion. ’’

In the first instance, it is axiomatic that the ‘‘ultimate’’

inquiry upon review of a particular search under the Fourth

Amendment is whether or not that search was ‘‘reason-

able.’’ See United States v. Villamonte-Marquez, 462 U.S.

579, 77 L.Ed.2d 22, 30 (1983); Michigan v. Summers, 452

U.S. 692, 699-700 (1981) ; Payton v. New York, 445 U.S. 573,

620 (1980) (White, J., dissenting); Marshall v. Barlow’s,

Inc., 436 U.S. 307, 315-316 (1978); Pennsylvama v. Mimms,

434 U.S. 106, 108-109 (1977); Terry v. Ohio, 392 U.S. 1, 19

(1968); Camara v. Municipal Court, 387 U.S. 523, 539

(1967). Although the concepts of ‘‘probable cause’’ and

‘‘reasonable suspicion’’ are often useful in determining the

reasonableness of a given search, they are not, as respond-

ent claims, ‘‘inviolate’’ (Resp. Br. 22) and this Court has

upheld searches lacking in either ‘‘probable cause’’ or

‘‘reasonable suspicion’’ concluding that they nevertheless

passed muster under the ‘‘ultimate’’ test of reasonableness.

See New Jersey v. T.L.0., —— U.S. ——, 83 L.Ed.2d 720,

734 (1985) (refusing to apply the probable cause standard

to searches of students by school officials and adopting a

’?

general reasonableness standard to govern such searches) ;

United States v. Villamonte-Marquez, 77 L.Ed.2d at 30-31

(refusing to apply an ‘‘articulable suspicion’’ standard to

14

random searches of vessels at sea and upholding such

searches under the ‘‘overarching principle of reasonable-

ness’’); Pennsylvania v. Mimms, 434 U.S. 106, 109 (uphold-

ing police officers’ right to order motorists out of their

vehicles following traffic violations as reasonable, notwith-

standing the absence of anything ‘‘unusual or suspicious”’

about their behavior); United States v. Martinez-Fuerte,

428 U.S. 543, 560-562 (1976) (upholding border patrol stops

of vehicles at fixed checkpoints as reasonable notwithstand-

ing the absence of ‘‘individualized suspicion’’); see also

Dunaway v. New York, 442 U.S. 200, 219 (1979) (White, J..

concurring) (eschewing a ‘“‘hard-and-fast standard of prob-

able cause’’ in favor of a reasonableness determination) :

cf., Almeida-Sanchez v. United States, 413 U.S. 266, 277

(1973) (Powell, J., concurring) (probable cause require-

ment bears on reasonableness determination but is not re-

quired under all circumstances). Respondent, however, in

his zeal to fit the instant VIN inspection within one of these

two useful categories, has completely lost sight of the in-

herent reasonableness of the police conduct at issue. See

Florida v. Royer, 460 U.S. 491, 519 (1983) (Rehnquist, J.,

dissenting) (eschewing ‘*. . . a mind-set more useful to

those who officiate at shuffleboard games, primarily con-

cerned with which particular square the dise has landed

on...’’ and applying a reasonableness standard to the

search at issue). Had respondent analyzed the VIN in-

spection for its overall reasonableness instead of concen-

trating exclusively on the presence or absence of either

‘*probable cause’’ or ‘‘reasonable suspicion’’ to believe the

vehicle was stolen, he too would conclude that the minimally

intrusive VIN inspection passed muster under the ‘‘ulti-

mate’’ test.

Indeed, following the concededly valid stop of the vehicle

for numerous traffic violations,* the officer did nothing more

* These traffic violations serve to distinguish the instant case from

Delaware v. Prouse, 440 U.S. 648 (1979) where this Court struck

(footnote continued on next page)

lo

than open the door of the vehicle and move some papers on

the dashboard which obstructed his view of the VIN plate.

He did not conduct a rummaging search of the passenger

compartment, nor did he ransack it in a determined effort

to ferret-out contraband. Rather, he merely displaced

several offending scraps of paper and insofar as this simple

action was necessitated by respondent’s own conduct in

obscuring the VIN plate, which would have otherwise been

readily viewable to the officer from outside the vehicle, it

ill behooves respondent to now protest such a ‘‘de mimimis

intrusion.’’ Pennsylvania v. Mimms, 434 U.S. at 111.

Moreover, since a VIN plate inspection would normally

involve the simple act of peering through the windshield at

the dashboard, it would have posed no intrusion whatever

had it not been for respondent’s conduct and thus, it is

ironic that he proposes several methods ‘‘less intrusive’’

than a VIN inspection to combat car theft (Resp. Br.

28-29). In any event, not only are ‘‘less intrusive’’ methods

such as computer checks less effective because they fail to

consider that the vehicle may not have been reported stolen,

but, as this Court has so recently recognized ‘‘. . . post hoc

evaluation of police conduct can almost always imagine

some alternative means by which the objectives of the

police might have been accomplished.’’ United States v.

Sharpe, U.S. ——., 105 S. Ct. 1568, 1576 (1985); see

Cady v. Dombrowski, 413 U.S. 453, 447 (1973) (‘*The fact

that the protection of the public might, in the abstract, have

been accomplished by ‘less intrusive’ means does not, in

itself, render the search unreasonable.’’) Thus, respond-

ent’s hindsight reliance on plausible, though less effective

down the practice of randomly stopping vehicles for license inspec-

tions because it vested “unbridled discretion” [id. at 661] in police

officers. Obviously, since the instant stop was precipitated by re-

spondent’s numerous traffic violations, it was not the result of “un-

bridled” police discretion.

16

alternatives* can undermine neither the reasonableness

of the minimally intrusive conduct undertaken, nor the

significance of his own actions in obscuring the VIN plate.

Viewed in this context, the almost trivial actions of the

officer in opening the door and brushing aside some papers

on the dashboard, during which he inadvertently observed

and seized a loaded weapon |see Texas v. Brown, 460 U.S.

730 (1983) ; Coolidge v. New Hampshire, 403 U.S. 443 (1971)

(plurality}, though they created an undeserved furor in

the New York Court of Appeals, amounted to little more

than ‘‘much ado about nothing’’ (Pet. Br. 30). Clearly

then, the instant VIN inspection was reasonable and, thus,

lawful under the Fourth Amendment.

Conclusion

For the foregoing reasons and those stated in our

opening brief, the judgment of the New York Court of

Appeals should be reversed.

Respectfully submitted,

Mario MERoLA

District Attorney

Bronx County

Counsel for Petitioner

Steven R. KarracGENER

Rocer L. Stavis

Assistant District Attorneys

Of Counsei

* In addition to the license check, another of respondent’s “plau-

sible” alternatives was for the officers to have demanded that respond-

ent uncover the VIN plate himself (Resp. Br. 28) which, as we

argued in our opening brief (Pet. Br. 26-27), would have had the

unsettling result in the instant case of sending respondent back into

a vehicle where he had, in fact, concealed a loaded weapon.