# Reply Brief — New York v. Class

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 106

## Text

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
—

|
Lt
no
r=
Jt

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0174%3A08. Public record. Not legal advice.