# Petition for Writ of Certiorari — New York v. Boswell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1044

## Text

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No.

IN THE

Supreme Court of the United States
October Term, 1999

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

KEITH BOSWELL,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

ROBERT T. JOHNSON
District Attorney
Bronx County
198 East 161st Street
Bronx, NY 10451
(718) 590-2156
Counsel of Record

ANTHONY J. GIRESE

JOSEPH N. FERDENZI

STANLEY R. KAPLAN

Assistant District Attorneys
Of Counsel

THE REPORTER COMPANY, Printers and Publishers, Inc.
181 Delaware Street, Walton, NY 13856—800-252-7181

(8138 -— 2000)

Printed on Recycled Paper

?

Question Presented

Whether this Court should review the precedent set by the
New York Court of Appeals, which held that the Fourth
Amendment of the United States Constitution prohibits the use
of checkpoints to stop a non-arbitrary number of taxi and livery
cabs as a means of crime prevention.

TABLE OF CONTENTS

PAGE
QUES THON PRESSING .saneccindesuessosaneueens i
TABLE OF AUTHIRREGGES 0. The dissenting judge also found that defendant did not sustain his
burden of showing that he had a reasonable expectation of privacy in the
passenger compartment and, thus, did not demonstrate that he had standing
to contest the search of the vehicle. The People are not asserting this issue
as a basis for certiorari.

‘it noteworthy that the New York Court of Appeals eschewed any
reliance on state constitutional jurisprudence, a marked departure from its
approach in other cases. See, e.g., People v. Bialostock, 80 N.Y.2d 738
(1993); People v. Harris, 77 N. Y.2d 434(1991); People v. Torres, 74 N.Y.2d
224 (1989). Thus, only the federal constitution is at issue.

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7

legitimate governmental interest, was nonarbitrary and
nondiscriminatory, and complied with this Court’s interpretation
of the United States Constitution.

As this Court acknowledged in United States v. Martinez-
Fuerte, 428 U.S. 543, 556 (1976); Delaware v. Prouse, 440 U.S.
648, 663 (1979); see also Michigan Police Department v. Sitz,
496 U.S. 444, 450 (1990), a roadblock or checkpoint constitutes
a seizure implicating the Fourth Amendment. However, this
Court has also held that a suspicionless stop of an automobile is
constitutional when reasonable, which is determined by balancing
the level of intrusion on the Fourth Amendment-protected
interests of the individual against the promotion of legitimate
governmental interests. Delaware v. Prouse, 440 U.S. at 657;
Michigan Dept. of State Police v. Sitz, 496 U.S. at 450. The
checkpoint procedure utilized in this case satisfied constitutional
requirements. In terms of promoting legitimate governmental
interests. the checkpoint operation allowed the police to provide
cab drivers with safety literature and discourage cab robberies in
an area plagued with such crime. The stop of the cab in which
defendant was a passenger was carried out in a nonarbitrary,
nondiscriminatory manner. The record is clear that Officer
Winslow, a member of the Taxi Livery Task Force, was directed
by a supervisor to stop every third cab that passed a fixed
location in The Bronx, in an area plagued with cab robberies, and
provide the driver with safety literature. In accordance with that
procedure, when Officer Winslow and his sergeant saw the third
cab drive past the checkpoint, they followed the car, and stopped
it.

The fact that the police did not employ a traditional roadblock
does not establish impropriety. Indeed, even the New York
Court of Appeals was forced to acknowledge that "[t]he
Supreme Court had not adopted a per se rule...requiring a fixed
checkpoint or roadblock in all cases." Boswell, 94 N.Y.2d at 145.

8

The salient issue is whether or not the procedure is nonarbitrary.
This Court has criticized roving patrols when the police engaged
in random pursuit. See Delaware v. Prouse, 440 U.S. 648 (in
the absence of any guidelines or standards, police officer stopped
car to check driver’s license and registration); United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (Border Patrol Agents
stopped at random any vehicle near the border to check for
illegal aliens or smuggling). However, the police here were not
roaming the roads randomly targeting cars. Instead, the officer
and his sergeant, who supervised the procedure, were at a fixed
location, and moved away from that point only when the third
cab passed by. The minimal pursuit entailed in such procedure
did not transform a fixed checkpoint into a roving patrol that
stopped cars at random.

The state court’s application of Brignoni-Ponce, 422 U.S.
873, to this case is erroneous. There, the government conceded
as a factual matter that a roving patrol was employed (id. at
876), and there was inherent randomness in the objective of
stopping cars with passengers that appeared to be of Mexican
origin. The police, here, were not on patrol, but stationary until
the third cab went by. Moreover, the police in this case were not
targeting cabs based upon some ethnic or racial profile; the cabs
were selected on the basis of a neutral criterion, namely every
third vehicle, occupied or unoccupied.’ Since the cab in which
defendant was riding was the third cab to pass the location after
the police set up the checkpoint, the police stopped it.

> The stop of only occupied cabs-was at issue in United States v.
Santiago, 950 F. Supp. 590 (S.D.N.Y. 1996), in which the District Court
found, "If the goal of the program were really to hand out safety pamphlets
to drivers, stops of unoccupied cabs, or of all taxicabs, would be just as
effective as stops of occupied cabs," and concluded, ''The only rational
reason for the NYPD to distinguish between occupied and unoccupied
taxicabs is to size up the passenger. The Fourth Amendment does not
permit governmental conduct absent at least reasonable suspicion." Id. at
596.

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9

Defendant's contention in the court below that the method
employed was "impractical" has no support in the record.
Further, even if, arguendo, the police could not ensure that every
third cab would be pursued, the criterion for the stops eliminated
the arbitrary use of discretion by the officer in the field.

The basis for the ruling of the New York Court of Appeals is
misplaced; instead of looking at whether the record in its entirety
supported a finding of reasonableness, it seized upon the fact that
there was no "empirical data" justifying the particular procedure.

Imposing such requirement was error. While it is true that this
Court has noted the lack of empirical data in Delaware v. Prouse,
440 U.S. 648, this was done only because the procedure
employed, a random vehicle stop to check driver’s licenses, was
obviously ineffective. In that context, this Court observed that
there was no empirical evidence rebutting that common-sense
conclusion: "Absent some empirical data to the contrary, it must
be assumed that finding an unlicensed driver among those who
commit traffic violations is a much more likely event than finding
an unlicensed driver by choosing randomly from the entire
universe of drivers." Id. at 659 (emphasis supplied). There is no
holding of this Court, however, that per se requires production
of empirical data concerning effectiveness to sustain a roadblock
or checkpoint procedure.

The state court decision is peculiar in its requirement of
empirical data where common sense would dictate that a
traditional roadblock, when utilized in the crowded vehicular
traffic conditions of New York City, would produce unpleasant
consequences such as increased delays for non-cab motorists,
including buses and emergency vehicles, and air pollution for
idling motor vehicles. Indeed, one would need data to justify the
counterintuitive conclusion that a traditional roadblock would
work better on the streets of a very crowded city.

10

Equally faulty was the court’s reasoning that the police acted
improperly since they could have provided cab drivers with
safety literature by other means. The police determination that
the best method for making cab drivers take note of safety
information was to employ checkpoints was a legitimate choice
among reasonable alternatives that should not have been
countermanded simply because there were other means available.
As this Court stated in Michigan Dept. of State Police v. Sitz,
496 U.S. at 453-454, "[e]xperts in police science might disagree
over which of several methods of apprehension of drunk drivers
is preferable as an ideal. But for purposes of the Fourth
Amendment analysis, the choice among such reasonable
alternatives remains with the governmental officials who have a
unique understanding of, and a responsibility for, limited public
resources, including a finite number of police officers." It was
proper for the police to ascertain and implement the best method
for stopping cabs on the crowded streets of New York City, so
long as it was a reasonable alternative to a traditional roadblock.
Certainly, the efficacy of stopping every third cab that passed a
checkpoint, pursuant to a nonarbitrary plan that did not
inconvenience other motorists, should not have been lightly
discounted by the New York Court of Appeals.

The state court further held that the procedure was invalid
because, unlike a roadblock, it was not obvious to the motorist
and, therefore, was subjectively intrusive. Boswell, 94 N.Y.2d
at 147. This Court, however, has never held that warnings signs
are the sine qua non of the legitimacy of a checkpoint procedure.
In Sitz, 496 U.S. 444, this Court noted the "fear and surprise"
that could be engendered by a stop of a typical motorist in the
absence of a traditional roadblock. Id. at 452. But, here, the
plan targeted only livery cabs. A cab driver is not an ordinary
citizen behind a steering wheel, but a working professional
driver, subject to regulation far more pervasive than that
applicable to ordinary drivers. For example, in New York City,

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1]

the operation of the vehicle must conform with specific and
comprehensive regulations. See, e.g., N.Y.C. Charter §2303(b)(6)
(Taxi and Limousine Commission to regulate the "[r]equirements
of standards of safety, and design, comfort, convenience, noise,
and air pollution control and efficiency in the operation of vehicle
and auxiliary equipment"). Hence, it would be unwarranted to
conclude that a cab driver would experience anxiety in the same
degree as an ordinary driver. Moreover, New York’s high
incidence of robberies, assaults, and murders of cab drivers must
be presumed to be common knowledge among that group, as
well as the commensurate involvement of the police in programs
designed to prevent those crimes.

Further, the court erred in finding that the stop was
unconstitutional because there was no showing that the
discretion of the officers was properly circumscribed other than
by their own testimony that they were following verbal
instructions. Boswell, 94 N.Y.2d at 147-48. There is no holding
from this Court that written instructions are a necessary
prerequisite for an otherwise permissible stop.

The decision of the New York Court of Appeals constituted
an unreasonable application of this Court’s law on suspicionless
Stops, which will have a serious adverse effect upon the
implementation of legitimate law enforcement policies. Because
of the high regard in which the New York Court of Appeals is
held, other state courts may follow the precedent set by it,
thereby multiplying the erroneous interpretations of this Court’s
Fourth Amendment jurisprudence. Accordingly, this Court
should grant the People a writ of certiorari.

12

Conclusion

For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted. .

Respectfully submitted,

ROBERT T. JOHNSON
District Attorney

Bronx County

198 East 161st Street
Bronx, New York 10451
(718) 590-2156

Counsel of Record

ANTHONY J. GIRESE
JOSEPH N. FERDENZI
STANLEY R. KAPLAN
Assistant District Attorneys
Of Counsel

February 25, 2000

Appendix A

Decision and Order of the New York Court of Appeals,
entered November 30, 1999

Official Cite
94 NY2d 136 (1999)

la

1 No. 160

In the Matter of Muhammad F.,

A Person Alleged to be

a Juvenile Delinquent,
Respondent,

Presentment Agency,
Appellant.

1 No. 161

The People & c.,
Respondent,

V.

Keith Boswell,

Appellant.

Case No. 160:
Stephen J. McGrath, for appellant presentment agency.
Raymond E. Rogers, for respondent

Case No. 161:
Richard M. Greenberg, for appellant.
Stanley R. Kaplan, for respondent.

LEVINE, J.:

These appeals arise out of motions to suppress evidence
introduced against occupants of taxicabs that were stopped by
police officers assigned to a Taxi-Livery Task Force in New
York City. The procedure of the police was essentially the same
in both cases. The officers were in plain clothes, using unmarked
police cars, on a roving patrol. They selected a location in an
area having a high incidence of taxi robberies. In the absence of
probable cause, suspicious behavior or any illegal activity on the
part of the driver or passengers, they pulled over a
predetermined percentage of livery vehicles. The purpose of the
stops was to provide a "safety check," to give the drivers crime
prevention information and make an assessment of whether the

2a

driver may have been in danger. For the reasons that follow, we
conclude that the stops in both of these cases were unreasonable
seizures violating the Fourth Amendment of the US Constitution.

I.

The material facts in these cases are not in dispute. In
Muhammad F., two police officers wearing civilian clothes and
driving in an unmarked police car, pulled over a cab in which
respondent was a passenger and arrested him after he was found
to be in possession of a controlled substance. Respondent was
subsequently adjudicated a juvenile delinquent.

According to the suppression hearing testimony of the
commanding officer of the Taxi-Livery Task Force, the unit was
created in 1992 to address the high incidence of violent crimes
against cab drivers. The taxi program targeted certain
neighborhoods, especially between 6:00 p.m. and 2:00 a.m.
Special attention was given to cabs with passengers. Members of
the Task Force would stop a taxi, hand the driver a pamphlet
with safety tips and question the cab driver as to his safety, while
at the same time watching the reaction of the passengers in the
cab. Generally, such a safety check would involve asking the
passengers to "step out briefly" or "telling passengers to get out"
while the officers searched around and under the seats.

There were no written guidelines as to how the taxi stops
were to be carried out. Instead, the officers proceeded on verbal
instructions under which the stops were to be done "in a set basis
and not just arbitrarily." Whether the officers stopped every cab,
or every second, third or fifth taxi was not based on a fixed
format, but varied, depending on circumstances seen and acted
upon solely by the officers in the field. The number of stops the
officers were to make on their tour throughout the night was
totally within their discretion. The officers did not keep any
written record of stops they had made.

3a /

/

On the night of July 7, 1996, the patrolmen parked their
unmarked car just off 145" Street in Manhattan to conduct taxi
safety checks. The officers decided to check one in three
occupied cabs. The third vehicle the officers saw which they
believed to be an occupied taxicab was the non-medallion taxi in
which respondent was riding. They turned onto 145" Street to
drive up behind the vehicle, put a flashing light on the dashboard
and pulled over the vehicle. One officer then approached on foot
while shining a flashlight into the car. When he saw that
respondent was acting suspiciously, he ordered the passengers
out of the car and searched the back of the cab, where he found
a paper lunch-style bag containing crack cocaine. Respondent
was arrested.

Supreme Court denied Muhammad F.'s motion to suppress
the evidence obtained as a result of this stop, and respondent was
ultimately adjudicated a juvenile delinquent for committing acts
which, if committed by an adult, would constitute criminal
possession of a controlled substance. The Appellate Division
reversed (255 AD2d 168), holding that the evidence against
respondent was the product of an unconstitutional seizure. One
Justice dissented. Petitioner presentment agency appealed
pursuant to leave granted by the Appellate Division.

IT.

In Boswell, defendant was arrested by a plainclothes Sergeant
and patrolman belonging to the Taxi-Livery Task Force after
their unmarked car stopped a taxicab in which defendant was a
passenger. Boswell was also found to be in possession of illegal
drugs.

At the suppression hearing, the patrolman testified that the
Taxi-Livery Task Force established locations to stop cabs and
hand out safety tips and other literature to the driver. The

4a

officers usually stopped every third cab, but there were no
written procedures. The Sergeant supervisor determined when
to initiate and suspend the operation.

The officers, both in plain clothes, were working a night shift
on February 27, 1995, when the Sergeant decided to set up
operations on Exterior Avenue in the Bronx. They would stop
every third livery vehicle, whether it was occupied or not —
although there was no testimony as to how they could determine
that a car with no passengers in the back seat was a non-
medallion taxicab.

The two officers did not stop the first two passing cars they
believed to be cabs. When a third passed by them, the officers
followed it and pulled it over. After the taxi had stopped, the
testifying officer shined his flashlight at defendant, noticed he
was attempting to conceal a plastic bag and asked him to exit the
cab. The bag contained packets of crack cocaine, and defendant
was Charged with criminal possession of a controlled substance
in the third degree.

Supreme Court suppressed the evidence obtained as a result
of the stop. The Appellate Division reversed (255 AD2d 173),
but one Justice dissented and granted defendant permission to
appeal to this Court.

A brief, suspicionless stop of an automobile, while far less
intrusive than a traditional arrest, nonetheless qualifies as a
seizure (see, Michigan Dept. of State Police v Sitz, 496 US 444,
450, People v Spencer, 84 NY2d 749, 752). The reasonableness
of such a seizure "depends ‘on a balance between the public
interest and the individual's right to personal security free from

arbitrary interference by law officers" (Brown v Texas, 443 US

47, 50 [emphasis supplied; internal citations omitted]).

<<

Sa

Determining whether these stops are constitutional requires a
weighing of "[1] the gravity of the public concerns served by the
seizure, [2] the degree to which the seizure advances the public
interest, and [3] the severity of the interference with individual
liberty" (id., at 50-51). A critical requirement for all such
seizures relates to the "central concern * * * that an individual's
reasonable expectation of privacy is not subject to arbitrary
invasions solely at the unfettered discretion of officers in the
field" (id., at 51). Namely, "the seizure must be carried out
pursuant to a plan embodying explicit, neutral limitations on the
conduct of individual officers" (id.; see also, People v Spencer,
supra, at 758-759). a

In Michigan Dept. of State Police v Sitz, the Supreme Court
that the balancing analysis of Brown v Texas and earlier precedents
should be utilized in these "cases dealing with police stops of

motorists on public highways" (Michigan Dept. of State Police v
Sitz, supra, at 450). Employing these standards, in United States v
Brignoni-Ponce (422 US 873), the Court had previously held that
a suspicionless, random "roving-patrol" by Border Patrol officers to
conduct a brief review of the citizenship or immigration status of
the vehicle's occupants was unconstitutional. The roving-patrol stop
was described as follows: "a fixed checkpoint * * * was closed
because of inclement weather, but two officers were observing
northbound traffic from a patrol car parked at the side of the
highway. The road was dark, and they were using the patrol car's
headlights to illuminate passing cars. They pursued respondent's car
and stopped it" (id., at 874-875). Preventing "the illegal entry of
aliens at the Mexican boarder" was a "valid public interest" (id., at
878-879). The Court held that the stops were unconstitutional,
nevertheless, after taking into account “the availability of
alternatives to random stops unsupported by reasonable suspicion"
(id, at 883 n 8). Significantly, the Court emphasized that the stops
would have subjected residents" to potentially unlimited interference
with their use of the highways, solely at the discretion of Border
Patrol officers" (id., at 882).

6a

By contrast, United States v Martinez-Fuerte (428 US 543)
upheld suspicionless stops by the Board Patrol of northbound
vehicles at a fixed checkpoint some 60 miles from the Mexican
border, on a major artery from the border (id., at 545). At the
checkpoint, still without reasonable suspicion, a uniformed agent
directed some of the automobiles to a secondary inspection area for
further inquiry regarding the citizenship and immigration status of
the occupants (id., at 546-547). After noting the substantial public
interest furthered by the practice of routine stops at permanent
checkpoints near the border (id., at 556), the Court concluded that
a reasonable suspicion requirement "would be impractical because
the flow of traffic tends to be too heavy to allow * * *
particularized study," and "such a requirement would largely
eliminate any deterrent to the conduct of well-disguised smuggling
operations" (id., at 557 [emphasis supplied]).

As with the roving-patrol stop, the "objective intrusion — the
stop itself, the questioning, and the visual inspection" — was

"quite limited" (id., at 557-558 [emphasis supplied]). But "the
subjective intrusion — the generating of concern or even fright
on the part of lawful travelers — is appreciably less in the case
of a checkpoint stop" (id., at 558 [emphasis supplied]). At
routine checkpoint stops, motorists can see that other vehicles
are being stopped and "are not taken by surprise" (id., at 558-
559). The checkpoint, however, was not required to scrutinize
every car in the same manner (id., at 563). In fact, the "selective
referrals — rather than questioning the occupants of every car —
tend[ed] to advance some Fourth Amendment interests by
minimizing the intrusion on the general motoring public" (id., at
560).

In addition, the Court in Martinez-Fuerte reemphasized the
decisiveness of limiting the discretion of officers in the field.

"[C]heckpoint operations both appear to and
actually involve. less discretionary enforcement

Ta

activity. * * * The location of a fixed checkpoint
is not chosen by officers in the field, but by
officials responsible for making overall decisions
as to the effective allocation of limited
enforcement resources. * * * And since field
officers may stop only those cars passing the
checkpoint, there is less room for abusive or
harassing stops of individuals than there was in
the case of roving-patrol stops. Moreover, a
claim that a particular exercise of discretion in
locating or operating a checkpoint is
unreasonable is subject to post-stop judicial
review" (id., at 559).

; Subsequently, Delaware v Prouse (440 US 648) held that a

police officer may not arbitrarily pull over an automobile merely
to check a driver license and registration. "In those situations in
which the balancing of interests precludes insistence upon 'some
quantum of individualized suspicion’ * * * other safeguards are
generally relied upon to assure that the individual's reasonable
expectation of privacy is not ‘subject to the discretion of the
official in the field" (id., at 654-655). Thus, in assessing the
validity of the suspicionless patrol stop an at automobile chosen
at random, the Court weighed (1) the State's vital interest in
ensuring * * * that licensing, registration, and vehicle inspection
requirements are being observed" (id., at 658); (2) "whether in
the service of these important ends the discretionary spot check
[was] a sufficiently productive mechanism to justify the
intrusion" (id., at 659); and (3) "the physical and psychological
intrusion visited upon the occupants of a vehicle by a random
stop to check documents" (id., at 657).

The Court emphasized that "[t]his kind of standardless and
unconstrained discretion is the evil the Court has discerned when

in previous cases it has insisted that the discretion of the official
in the field be circumscribed" (id., at 661). Thus, Delaware v

8a

Prouse held that "persons in automobiles on public roadways
may not for that reason alone have their travel and privacy
interfered with at the unbridled discretion of police officers" (id.,
at 663; see also, People v Spencer, supra, 84 NY2d, at 758-759).

By contrast, suspicionless stops of vehicles to conduct
sobriety checks at checkpoints under written guidelines are
constitutional, even if the location of the roadblock regularly
changes (Michigan Dept. of State Police v Sitz, supra, 496 US
444: People v Scott, 63 NY2d 518). After reaffirming the
applicability of Brown v Texas, the Court in Sitz recognized the
magnitude of the governmental interest in combating drunken

driving (Michigan Dept. of State Police v Sitz, supra, at 450-
451; see also, People v John BB., 56 NY2d 482, 488).

Sitz also addressed "'the degree to which the seizure
advance[d] the public interest" (Michigan Dept. of State Police
v_Sitz, supra, at 453). The Court strongly emphasized that in
weighing this Brown v Texas factor, a court is not to assess the
propriety and the need of the particular means used by law
enforcement authorities to advance the public interest. The
"effectiveness" part of the test "Was not meant to transfer from
politically accountable officials to the courts the decision as to
which among reasonable alternative law enforcement techniques
should be employed to deal with a serious public danger" (id.).
Rather, it is sufficient for a court to determine that there is some
"empirical data" demonstrating the effectiveness of the means
chosen by law enforcement officials (id., at 453-455).

As for the severity of the interference, the Court found that
"(t]he intrusion resulting from the brief stop at the sobriety
checkpoint [was] for constitutional purposes indistinguishable
from the checkpoint stops * * * upheld in Martinez-Fuerte"
(Michigan Dept. of State Police v Sitz, supra, at 453). Finally,
there was no question in Sitz that the discretion of officers in the
field was adequately circumscribed, because the checkpoint was

9a

operated according to "guidelines setting forth procedures
governing checkpoint operations, site selection, and publicity"
(id., at 447).

Respondent in Muhammad F. and defendant in Boswell urge
that the absence of a fixed checkpoint or roadblock is alone
sufficient to invalidate the seizures in these cases. We do not
accept that proposition. The Supreme Court has not adopted a
per se rule banning all such stops and requiring a fixed
checkpoint or roadblock in all cases. Suspicionless patrol stops
are suspect as a general matter because of both their elevated
potential intrusiveness and their greater opportunities for the
unlimited exercise of discretion by police; no such stop has been
upheld by the Supreme Court or our Court when it was
conducted at random. Suspicionless stops, however, of "all
oncoming traffic at roadblock-type stops" to check driver license
and registration are permissible (Delaware v Prouse, supra, at
663; see_also, id, at 664 [Blackmun, J., concurring; "I
necessarily assume that the Court's reservation also includes
other not purely random stops (such as every 10" car to pass a
given point)"]; Texas v Brown, 460 US 730, 739).

Consistent with the foregoing approach, People v John BB,
(supra,56 NY2d 482) upheld the constitutionality of patrol stops
conducted in a "uniform and nondiscriminatory manner" of all
vehicles traveling in a sparsely populated rural area soon after a
recent series of burglaries was discovered (id., at 488-489). The
"legitimate function of acquiring information regarding the recent
burglaries" outweighed the interference with drivers' rights, given
that the area "was too large to permit any meaningful utilization
of traditional investigative procedures" (id., at 488). Thus,
neither New York nor United States Supreme Court precedents
require automatic foreclosure of such stops, without examining
whether a systematized non-arbitrary method was employed to
accomplish them and conducting a particularized inquiry into the
reasonableness of the stops, using the Brown v Texas balancing
analysis.

10a

IV.

In applying the arbitrariness and Brown v Texas standards to
the circumstances presented on the record before us, we
conclude that the stops of the taxicabs in these cases were
unreasonable and invalid. Regarding the first factor to be
weighed, we do not doubt the magnitude of the governmental
interest in protecting victim-prone taxicab drivers late at night on
urban streets from a crime wave of violent robberies and
homicides by disseminating information to the drivers and
preventing crimes that are in progress or imminent.

Turning to the effectiveness prong of the Brown v Texas test,
it was, of course, for New York City law enforcement officials
to decide "which among reasonable alternative law enforcement
techniques should be employed to deal with [the] serious public
danger" of violent taxicab crime (Michigan Dept. of State Police
v Sitz, supra, at 453 [emphasis supplied]). The Prosecution in
these cases, however, failed to submit any empirical evidence
that this type of patrol stop — as opposed to fixed checkpoint
stops by uniformed officers in marked cars — was a reasonably
effective means of furthering the State interest in reducing
violent crimes against taxi drivers (cf., id., at 454-455; People v
Scott, supra, at 523, 526-527). There was no showing of the
unavailability of less intrusive or discretionary means to prevent
violent crime directed at the drivers of livery vehicles (see,
Delaware v Prouse, supra, at 659). Absent from the record is any
evidence that the operation of a stationary checkpoint by
uniformed officers in marked police cars was "impractical"
(United States _v Martinez-Fuerte, supra, at 557) or that
circumstances did not "permit any meaningful utilization of
[such] traditional investigative procedures" (People v John BB.,
supra, at 488).

Moreover, these stops were excessively and, on these
records, unjustifiably intrusive, both objectively and subjectively.

lla

As for the objective intrusiveness, the safety checks in
Muhammad F. were described as routinely involving a request or
direction that the passengers step out of the cab while the
officers searched it (cf., United States v Brignoni-Ponce, supra,
at 880). Subjectively, in each case, the police employed a roving-
patrol stop in which a single, unmarked police car operated by
non-uniformed officers pulled over the taxi. Since it was
nighttime and there were no signs, cones or flares to warn the
drivers that they would be stopped, the motorists were "taken by
surprise" (United States v Martinez-Fuerte, supra, at 559). The
plainclothes officers then proceeded to walk towards the
taxicabs, shining their flashlights at the occupants. Because the
cab drivers could not "see * * * other vehicles * * * being
stopped" and there were no "visible signs of the officers'
authority,” this is precisely the type of police stop that would
"generat[e] concern or even fright on the part of lawful travelers"
(Michigan Dept. of State Police v Sitz, supra, at 452-453).
Indeed, given that police chose the locations of the stops because
they were high taxi-crime areas, the occupants’ first reaction
might well have been fear that they were being car jacked or
mugged. The subjective intrusion would have been significantly
less had there been some means employed to provide assurance
that this was a police operation employing "a uniform system for
stopping cars" (People v Scott, supra, 63 NY2d, at 527).

Of equal significance, the records in these cases contain no
showing that the Task Force had attempted to mitigate the
constitutional infirmity of "standardless and unconstrained
discretion" of "the official in the field" (Delaware v Prouse,
Supra, at 661) other than the vague and purely conclusory
testimony that the officers had verbal instructions to stop taxis
"in a set basis and not just arbitrarily." For example, had the
Police Department produced evidence of particularized
guidelines with "listed criteria" that "established procedures for
site selection, lighting and signs; avoidance of discrimination by
stopping all vehicles, or every second, third or fourth vehicle;

12a

[and] location of the screening areas" (People v Scott, supra, at
522-523), then we would have some assurance that the stops
were "being maintained in accordance with uniform procedure
which afforded little discretion to operating personnel" (id., at
526; see, Delaware v Prouse, supra, at 650; cf., Michigan Dept.
of State Police v Sitz, s -_ a at 447, 453; see generally, LaFave,
Controlling Discretion by Administrative Regulations: Th

Misuse, and Nonuse of Police Rules and Policies in Fourth
Amendment Adjudication, 89 Mich L Rev 442 [1990]). Since the
officers here were not even required to make a written record of
stops that had taken place, in conducting our "post-stop judicial
review" (United States v Martinez-Fuerte, supra at 559), we are
relegated to the self-verifying evidence from the officers whose
conduct is being challenged to determine whether they were
using uniform and nondiscriminatory procedures.

On the scanty proof adduced in these cases, there was a
failure either to establish the reasonableness of the patrol stops
here under the three-pronged balancing test of Brown v Texas
(supra) or to satisfy the constitutional requirement that the stops
were "carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers" (id., at 51; cf.,
People v John BB., supra, at 485 ["stops were conducted in a
uniform, nonarbitrary and nondiscriminatory manner"]). Thus,
the evidence was properly suppressed in Muhammad F. and
improperly admitted in Boswell.

With respect to the dissent, the focus of these appeals in our
Court was the legality of the stops. The issue of standing was
barely mentioned by the Prosecutions; in the lengthy Appellate
Division decisions it was not alluded to at all. We therefore
choose to assume standing for present purposes, consistently
with our precedents, and reach the merits of the issues the parties
addressed. As for the dissent's analysis on the merits, we have
already noted that the stops in these cases were carried out
arbitrarily at the discretion of the officers in the field, whereas in

13a

People v John BB, (supra), the stop "was made pursuant to a
nonarbitrary, nondiscriminatory and uniform procedure,
involving the stop of all vehicles" (id., at 488).

Accordingly, in Muhammad F., the order of the Appellate
Division should be affirmed, without costs, and the certified
question not answered as unnecessary; in Boswell, the order of
the Appellate Division should be reversed and the order of
Supreme Court, Bronx County, reinstated.

No. 160 Matter of Muhammad F.
No. 161 People v. Boswell
SMITH, J. (dissenting):
Because I believe that the procedures used here were
appropriate in the effort to prevent crime against taxicab drivers

and because I believe that the constitutional rights of the
defendants were not violated by the searches, I dissent.

Matter of Muhammad F.

On July 7, 1996, at about 11 PM, the police were in plain
clothes patrolling an area in which there had been many robberies
of taxicab drivers. The procedure was to stop every third cab,
make inquiry as to safety of the driver and give the driver a
safety pamphlet. When the taxicab was stopped, the police
noticed one of the three passengers lean forward and push
something under the front seat of the vehicle. The three persons
were ordered out of the vehicle and the vehicle was searched.
The search revealed a bag pushed under the front seat containing
drugs and drug paraphernalia. Two of the passengers denied that
the drugs belonged to them. Respondent juvenile admitted that

14a

the drugs were his. He was arrested and charged with acts
constituting criminal possession of a controlled substance and
related crimes.

Muhammad F. moved in Family Court to suppress the drugs
recovered from the taxicab. The allegations made in support and
in opposition to the motion are crucial to a decision in this case.
Muhammad F. alleged that the evidence was seized from him in
violation of the Fourth, Fifth and Sixth Amendments to the
Federal Constitution and to article I, §§ 6 and 12 of the New
York State Constitution. The People denied that the rights of the
juvenile were violated and further alleged that he had no standing
to challenge the seizure of the evidence.

Family Court denied the suppression motion. The Appellate
Division reversed, with one Justice dissenting, granted the
suppression motion and dismissed the juvenile delinquency
petition.

On this appeal, the prosecution/appellant in Muhammad F.
argues that the Taxi Robbery Task Force Program is a
reasonable means of attempting to prevent the robbery and
assault of taxicab drivers. Respondent Muhammad F. argues that
he was illegally stopped by police officers in plainclothes without
any suspicion of wrongdoing and pursuant to an arbitrary,
unwritten policy.

People v Boswell

On February 26, 1999, at about 9 PM, the police were in an
unmarked car stationed at a fixed location in the Bronx. The
officers were part of a program to stop every third taxicab in an
effort to thwart a series of taxicab robberies. When the taxicab
passed the location at which the police car was stationed, the
police pursued and stopped it. An officer observed defendant

15a

kick a bag under the front seat of the vehicle. When the officer
asked if the bag belonged to defendant, he denied ownership.
The bag was examined and drugs were recovered.

Defendant Boswell moved to suppress the evidence seized on
the ground that it was recovered in violation of the Fourth
Amendment to the Federal Constitution and article I, § 12 of the
New York State Constitution. The People denied any violation
of these provisions and, in addition, alleged that defendant had
no standing to challenge the search of the taxicab.

Supreme Court granted defendant's motion to suppress. In its
opinion, the court ruled that defendant had standing to challenge
the stop of the vehicle. On reargument, the court adhered to its
decision. It also ruled that had the stop of the car been lawful,
defendant would lack standing to challenge the search of the bag.

The Appellate Division reversed. In its brief to the Appellate
Division, the People argued that defendant lacked standing to
contest the search of the vehicle. The standing issue was not,
however, addressed by the Appellate Division.

On appeal here, defendant/appellant Boswell argues that the
police were engaged in a roving patrol, that the stop of the
taxicab was without suspicion and unconstitutional, and that the
seizure of the drugs was fruit of that wrongful stop. The People
argue that the stop was pursuant to a uniform, nonarbitrary and
nondiscriminatory policy of stopping every third taxicab which
passed a fixed location and that defendant has no standing to
contest the search of the taxicab since he disclaimed ownership
of the seized bag.

16a
Discussion -

At the heart of these appeals is the policy designed to prevent
robberies of and assaults upon taxicab drivers in New York City.
At the hearing in Muhammad F., Captain Savage, the
commander of the Street Crimes Unit, testified that because of
3,600 robberies of taxicab drivers in 1992, the unit, in 1993, was
assigned to concentrate on the prevention of such robberies. He
testified further, "The crime rate has declined in every precinct
that we targeted." There is no dispute that the government has
a legitimate interest in preventing such occurrences. A policy
undertaken in response to criminal activities against taxicab
drivers can be reasonable and consistent with the requirements
of the Fourth Amendment and article I, section 12 of the New
York State Constitution.

Two features of the current policy should be noted. First, the
policy is unwritten. While the fact does not make the policy
unconstitutional, a written policy would be more susceptible to
review. Second, the policy consists of fixed locations where the
police have a uniform, nonarbitrary policy of stopping vehicles,
(see, People v Ingle, 36 NY2d 413), although a roving patrol,
narrowly focused on a particular crime situation, has also been
upheld (People v John BB, 56 NY2d 482, cert denied, 459 US
1010 [all vehicles in a particular area were stopped by a roving
patrol after a series of unsolved burglaries]).

To be constitutional, a policy must be uniform and
nondiscriminatory. Moreover, the policy cannot be used as a
pretext for harassing innocent citizens. Here, the policy was to
stop every third taxicab to make inquiry as to the safety of the
driver, a nonarbitrary procedure with a reasonable basis.

Thus, inasmuch as the government may institute a policy to
prevent the robbery of taxicab drivers, the issue becomes
whether in these cases the implemented policy violated the rights

17a

of the individuals. The challenges to the stops in these cases are
made, not by the driver of the taxicabs, but by the passengers in
those cabs. It is clear, however, that the interests of the driver
and of the passengers are different. In both cases, the police
stopped the drivers in order to insure that they were safe. Insofar
as the taxicab drivers were concerned, the stops were akin to the
request for information in People v DeBour (40 NY2d 210),
which this Court found permissible. Nevertheless, even assuming
that the vehicles were seized, there is nothing improper about the
policy itself of the procedures used to effectuate that policy.

The case of People v John BB, 56 NY2d 482, supra supports
the action taken here. There, a series of burglaries had occurred
in a sparsely populated area of Sullivan County known as the
Anawanda-Tennanah Lake region. Although there was no fixed
checkpoint, the police decided to stop every vehicle in a general
area. Pursuant to that policy, the car in which John BB. was a
passenger was stopped although no evidence existed that the
driver or passengers were engaged in any type of illegal activity.
The driver was asked for his license and registration. When the
driver got out of the car with the requested documents, the
police shone a flashlight into the interior, revealing a rifle and a
pellet gun that had been reported stolen. A subsequent search of
the vehicle revealed additional items taken during the burglaries.

This Court held that the stop in that case was made pursuant
to a "nonarbitrary, nondiscriminatory and uniform procedure"
with no intent to harass (id., at 488). In determining the
constitutionality of a stop, this Court stated:

"The indefiniteness of the term ‘unreasonable’
militates against the construction of a general
rule of universal application for determining the
validity of official intrusions of this nature.
Rather, the facts of each case must be examined
and the essential inquiry is whether the police

~

conduct may be characterized as reasonable,
which in turn requires a balancing of the State's
interest in the inquiry at issue against the
individual's interest in being free from
governmental interference" (id, at 487).

It is significant that in John BB., this Court determined that
neither United States v Martinez-Fuerte (428 US 543) nor
United States v Brignoni-Ponce (422 US 873) constituted a
barrier to the procedure undertaken. In United States v
Martinez-Fuerte, the Supreme Court upheld a fixed checkpoint
location to check for illegal aliens even without a requirement of
reasonable suspicion. In United States v Brignoni-Ponce, the
Supreme Court held that, in a search for illegal aliens, a roving
patrol which stopped a vehicle solely because the occupants
appeared to be Mexican was unconstitutional and the reasonable
suspicion was the standard for stopping such a vehicle.

Turning to the issue of standing, while defendants may have
standing to challenge the stop of the taxicabs and to seek
suppression of the contraband as fruit of an unlawful stop (see,
People v Millan, 69 NY2d 514, 516), the evidence may be
suppressed only if it is pursuant to an illegal stop directly leading
to the discovery of the contraband (see, People v Rogers, 52
NY2d 527, 535). Here, arguably, the discovery of the drugs in
both cases was due to the suspicious conduct of the passengers,
not the stops of the taxicabs. Stated differently, in both cases
before us, the search of the vehicle resulted from observed
efforts to hide something under the front seat of the vehicle after
the taxi was stopped.

In order to challenge the constitutionality of a search, the
burden is on the person challenging the search to demonstrate a
reasonable expectation of privacy (People v Wesley, 73 NY2d
351, 358-359). 'n both cases here there is no showing by
defendants that they had a legitimate expectation of privacy in

19a

the passenger compartment of the taxicabs (see, Rakus v Illinois,
439 US 128 [passengers did not have standing to contest the
search of the automobile since they did not have an expectation
of privacy]; People v Millan, 69 NY2d, supra, at 520 [reserving
the issue of whether the passenger in a taxicab had an
expectation of privacy in the passenger compartment. The
taxicab had been stopped after it went through a red light];
People v Wesley, 73 NY2d 351 supra [defendants charged with
constructive possession of a weapon do not have standing based
on that factor alone]). For example, in Boswell, defendant denied
possession of the bag in which the contraband was discovered,
evincing that he had no reasonable expectation of privacy in that
bag and, thus, no standing to challenge its admission into
evidence (see, id., at 360-364). Thus, despite the majority's
reluctance to deal with the issue of standing, it is central to both
cases.

For these reasons, I dissent and vote to uphold the searches
in both cases.

SeRKEKKHEKKEKHEKKK KK

Case No. 160: Order affirmed, without costs, and certified
question not answered as unnecessary. Opinion by Judge Levine.
Chief Judge Kaye and Judges Bellacosa, Wesley and Rosenblatt
concur. Judge Smith dissents and votes to reverse in an opinion.
Judge Ciparick took no part.

Case No. 161: Order reversed and order of Supreme Court,
Bronx County, reinstated. Opinion by Judge Levine. Chief Judge
Kaye and Judges Bellacosa, Wesley and Rosenblatt concur.
Judge Smith dissents and votes to affirm in an opinion. Judge
Ciparick took no part.

Decided November 30, 1999

ee eee on

= po ae
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ST ee

4
5

Appendix B

Decision and Order of the Appellate Division,
First Department, entered November 17, 1998.
Official Cite 255 AD2d 173 (1st Dept. 1998)

2la

Williams, J.P., Tom, Mazzarelli, Andrias, JJ.
1569 The People of the State of New York,
Appellant,
Stanley R. Kaplan
-against-
Keith Boswell,
Defendant-Respondent.

Order, Supreme Court, Bronx County (Robert Cohen, J.),
entered on or about March 13, 1997, which, to the extent
appealed from as limited by appellant’s brief, upon reargument,
adhered to its initial order, dated October 25, 1996, granting
defendant’s motion to suppress physical evidence, reversed, on
the law, the motion to suppress denied and the matter remanded
for further proceedings.

Defendant was indicated for two counts of criminal
possession of a controlled substance in the third degree after the
police stopped the taxi in which he was a passenger, and
recovered drugs from a bag that they observed him kicking under
the passenger seat. Defendant moved pre-trial to suppress the
physical evidence recovered from the vehicle. Police Officer Ray
Winslow testified at the suppression hearing that he was assigned
to the Taxi Livery Task Force, where his duties included setting
up taxi checkpoints, stopping cabs, and handing out literature
containing safety tips to drivers. Winslow stated that the normal
procedure required the presence of a Supervisor at the
checkpoint, and the stopping of every third taxi. It was the
supervisor’s responsibility to set the exact procedure and
location of the checkpoint. To Winslow’s knowledge, there were
no written guidelines.

On February 26, 1996, at approximately 9:00 pm, Winslow
and his partner, Sergeant Thomas Galati, parked their unmarked
patrol car at 139 Exterior Avenue. When the third taxi passed,
they pulled their car out, placing on the turret light. They caught

22a

up to the taxi approximately a half a block later, and pulled it
over. As the officers approached the taxi, they observed
defendant kicking a bag under the seat. In response to the
officer’s questions as to whether the bag was his, defendant first
responded “‘what bag,” and then denied ownership of it. The
police searched the bag and recovered drugs, money and two
walkie taikies.

In a decision dated October 26, 1996, the suppression court
granted defendant’s motion to suppress, concluding that the stop
of the cab was unlawful since the People failed to produce any
evidence of a written, systematic procedure limiting the officers’
discretion in conducting the checkpoint stop. The People moved
for reargument based on this Court’s intervening decision in
People v. Serrano (233 AD2d 170, lv denied 89 NY2d 929). In
Serrano (supra), we upheld a _ checkpoint stop as
“nondiscriminatory and nondiscretionary,” and specifically stated
the procedure utilized was not invalid merely because is was not
in writing. The suppression court granted reargument but
adhered to its initial determination. The court distinguished the
checkpoint stop in Serrano, since there, six to eight officers were
involved, the checkpoint was visible to motorists and there was
no pursuit of any vehicle. The court concluded that the stop in
this case was more akin to a random patrol stop, and as such,
required reasonable suspicion by the police that the driver was
committing a traffic violation or that an occupant was engaging
in criminal activity.

While it is beyond question that a roadblock stop constitutes
a seizure within the meaning of the Fourth Amendment (People
v Scott, 63 NY2d 518, 524: People v John BB, 56 NY2d 482,

cert denied 459 US 1010; Delaware v Prouse, 440 US 648), it is
likewise accepted that there is a diminished expectation of
privacy in an automobile (People v Scott, supra at 525; United
States _v_Martinez-Fuerte, 428 US 543, 556). Thus,
“individualized suspicion is not a prerequisite to a constitutional

23a

seizure of an automobile which is ‘carried out pursuant to a plan
embodying explicit, neutral limitations on the conduct of

individual officers’ ” (People v Scott, supra at 525, quoting
Brown v Texas, 443 US 47, 51).

The reasonableness of such a seizure must be judged “by
balancing its intrusion on the Fourth Amendment interests of the
individual involved against its promotion of legitimate
governmental interests” (People v Scott, supra at 525; see also,
People v Spencer, 84 NY2Zd 749, 754, cert denied 516 US 905).

The key factors in this analysis “are the governmental interest
involved and the effect of the procedure in relation to it” on the
one hand, and “the degree of intrusion of the procedure on the
individual subjected to it, measured in terms of both its
subjective effect and the degree of discretion vested in the
officials charged with carrying it out” on the other (People v

Scott, supra at 525; see also, People v Spencer, supra at 754).

Balancing these factors, we conclude that the procedure
utilized by the police in the instant case does not exceed
constitutional limits, and is consistent with governing precedent.
The testifying officer stated that he was a member of the Taxi
Livery Task Force, whose unit had a specific program of
Stopping taxis at checkpoints in order to hand out safety
literature. The governmental purpose of protecting taxi drivers
and their passengers from criminal activity is patent. Moreover,
the procedure, overseen by a supervisor, called for the
“nondiscriminatory and nondiscretionary” stopping of every third
taxi observed (see, People v Serrano, supra at 171). Officer
Winslow testified that, consistent with this procedure, the vehicle
in which defendant was riding was the third taxi observed, and
therefore was stopped. As the officer’s testimony regarding the
checkpoint program and the circumstances surrounding the stop
in this case stands uncontradicted in the record, the suggestion
that the officers acted with unbridled discretion in stopping the

subject vehicle is rejected (People v Serrano, supra at 171).

24a

Moreover, the absence of written guidelines from the higher
echelons of the Police Department does not automatically render
a checkpoint program invalid where the procedure adopted is
uniform and nondiscriminatory (id. at 171).

Additionally, the fact that this checkpoint involved minimal
pursuit does not render it constitutionally impermissible. In
People v John B.B. (supra), the Court of Appeals upheld the
employment by police of a roving roadblock in a rural area
where many burglaries had recently occurred. The procedure in
John B.B. called for the stopping of every vehicle in the area in
order to ascertain the identity of the occupants, and to obtain
information about the burglaries. The Court found the
suspicionless stops permissible since they were accomplished
pursuant to a “nonarbitrary, nondiscriminatory and uniform
procedure” (id. at 488). Although the present procedure
involved the stopping of every third car, instead of every one,
that fact does not affect its validity so long as a “specific
nondiscriminatory pattern of selection is called for” (People v
Scott, supra at 526). While Scoit involved a fixed checkpoint,
we believe this rule would similarly apply to the minimal pursuit
procedure involved herein (but see, United States v Santiago,
950 F Supp 590 [SDNY 1996]).

We acknowledge the decisions of the United States Supreme
Court disapproving of roving patrol stops (see, Delaware v
Prouse, supra; United States v Brignoni-Ponce, 422 US 873; see
also, United States v Martinez-Fuerte, supra), but find them
distinguishable. In Delaware v Prouse (supra), the defendant’s
- vehicle was stopped by a Delaware patrolman who testified that
he stopped the car solely to check the driver’s license and
registration. The patrolman was not acting pursuant to any
department guidelines or standards, but rather characterized the
stop as “routine” (id. at 650). In United States v Brignoni-Ponce
(supra), the procedure at issue was the asserted authority of
Border Patrol agents to stop at random any vehicle near an

25a

international border to determine if it contained illegal aliens or
was involved in smuggling operations.

As should be plain, these roving-patrol procedures are
characterized by the unlimited discretion afforded the
government officials involved. Far from being systematic, they
apparently were developed by the officers in the field on an ad
hoc basis. They had no objective mechanism to limit the officers’
discretion, nor did they profess to. In contrast, the procedure at
issue incorporated many of the features of the traditional fixed
checkpoint - the required presence of a supervisor, the fixed
location of the police vehicle and a systematic selection process
for stopping cars. In view of these similarities, that the police
vehicle may not have been completely visible, and that the police
car pursued the taxi for a short distance, does not tip the balance
toward unreasonableness (see, People v John B.B., supra; cf.,
Delaware v Prouse, supra; United States v Brignoni-Ponce,

supra).

We further find Matter of Muhammad F.(__AD2d_, Appeal
No. 725 [decided simultaneously herewith]) distinguishable from
the instant case. In Muhammad F. (supra), this Court found that
a police roving-patrol program whereby one out of every three
occupied taxi or livery cabs would be stopped for “safety
checks” was constitutionally infirm. We stated that the procedure
gave the police far too much discretion in choosing which vehicle
to stop. Here, unlike Muhammad F., the checkpoint was at a
fixed location, and a supervisor was always required to be
present.

As defendant abandoned the bag when he disclaimed
ownership, and the abandonment was not precipitated by any
illegal conduct of the police (see, People v Morales, 243 AD2d
391, lv denied 91 NY2d 877; People v Boyd, 213 AD2d 291, lv
denied 85 NY2d 970), the motion to suppress should not have
been granted.

26a

Accordingly, we reverse and remand for further proceedings.

All concur except Tom, J. who dissents in a memorandum as
follows:

TOM, J. (dissenting)

The issue raised on this appeal is whether a suspicionless stop
of an occupied cab by officers in an unmarked police vehicle
under the circumstances of this case was constitutionally
permissible and valid.

Police Officer Ray Winslow, a member of the Street Crime
Unit of the New York City Police Department, testified that he
was working the 5:30 PM to 2:05 AM tour on February 27,
1995, and was assigned to the Taxi Livery Task Force in the
44th/46th Precinct. He explained that the Task Force is sent out
to precincts with a high number of cab robberies, where its duties
are to set up taxi check points, stop cabs, and hand out safety
tips and other literature to cab drivers. A supervisor is supposed
to be present at checkpoints and “usually” every third cab is
stopped. The number, which “is different sometimes,” was
possibly selected by the supervisor, but Winslow was “not
exactly sure,” and he was unaware if there were criteria for the
ratio selected.

On that date, Winslow was teamed with Sergeant Thomas
Galati, who was the supervisor. Galati was not called by the
People, so that the record does not contain further information
about departmental policy, if any, concerning the selection
criteria for cab stops. Both officers were in plainclothes; both sat
in an unmarked police car secreted in the vicinity of 725 Exterior
Avenue in the Bronx. At approximately 9:00 PM, they pulled
over the first cab of the evening, which was the third cab in
sequence observed by the officers. This cab contained defendant
as a passenger, leading to his arrest, as is related in the majority’s

(cade ead vin ab Yocrdaresdvalanbi

27a

decision. On cross-examination, Winslow testified that he had
not been given a specific location to locate the unmarked car, a
choice that was basically up to the Sergeant and himself. The
direction to stop every third cab was only verbally relayed; there
was no written policy. Winslow conceded defense counsel’s
observation that this was not a classic checkpoint, in that there
was no marked police vehicle in a stationary position, at which
location officers direct cars to pull over for a registration or DWI
check. Here, the unmarked police car was parked on the side of
the road at night, presumably out of sight of moving vehicles,
awaiting passing cabs. Although Winslow indicated that they
were stationary, they nevertheless operated by letting the
targeted cab pass them first, after which the officers would
follow, with turret light lit, and pull the cab over.

The stop in this case was pursuant to the New York City
Police Department’s Taxi Livery Task Force program that has
been criticized on Fourth Amendment grounds by other courts
(see, e.g., United States v Santiago, 950 F Supp 590). In Matter
of Muhammad F. (_AD2d_, App. No. 725 decided
simultaneously herewith), we analyzed this program in the
context of Federal and State constitutional law allowing stops,
unsupported by reasonable suspicion, of cabs and other vehicles
at fixed locations and “roving roadblocks”. The facts in
Muhammad F. bore a striking similarity to those in Santiago, to
the extent that apparently the same officer was involved, and the
stop and arrest in Muhammad F. occurred three days after that
in Santiago. Since the policy of mobile patrols stopping cabs in
Muhammad F. did not derive from formal guidelines, but
appeared to have been formulated at the street level,
documentation of stops and results was not furnished, and the
officers, rather than being identified, were in an unmarked car,
we found insufficient indicia of a nonarbitrary and uniform policy
to satisfy constitutional standards. Although the majority relies
on the supposedly fixed situs of the police car in this case to
authorize the stop as a checkpoint stop, under these facts, I see

28a

that as a distinction without a real difference. Notwithstanding
my sympathy with the Department’s goals, I do not see how this
stop can pass constitutional muster as previously articulated by
this Court and the Court of Appeals.

Case law has developed an analytical model for judging the
propriety of police stops of moving cars unsupported by
reasonable suspicion and the policies or programs on which the
stops are predicated. It is clear that a roadblock or checkpoint
stop is as much of a seizure within the meaning of the Fourth
Amendmentas is anon-checkpoint stop of a moving car (United
States v Hensley, 469 US 221, 226; Delaware v Prouse, 440 US
648; People v John BB, 56 NY2d 482, cert denied 459 US
1010). Although individualized suspicion is not a prerequisite to
a constitutional seizure of a vehicle that is carried out according
to a policy or program incorporating explicit, neutral limitations
on the conduct of the individual officers undertaking the seizure
(Delaware v Prouse, supra at 663), nevertheless, the seizure
must be justified in constitutional terms. This requires that a
court evaluating the legality of the stop and seizure balance the
consequential intrusion into the individual’s Fourth Amendment
interests against the promotion of legitimate governmental
interests (John BB, supra at 487; People v Scott, 63 NY2d 518,
525; Delaware _v_ Prouse, supra at 657). The intrusion is
characterized as both objective and subjective. The subjective
intrusion would be measured in terms of the anxiety or
inconvenience experienced by the individual being stopped; the
objective intrusion is the stop itself (United States v Santiago,
950 F Supp 590, 595). The analysis balancing these interests
requires a preliminary evaluation of the nature and extent of the
governmental interest involved, the effect of the program or
policy in relation to it, and the degree of the intrusion on the
individual, as measured by the subjective effect on that individual
and the degree of discretion accorded the officers under the

policy (People v Scott, supra at 525).

29a

There are two aspects of this police program that require
analysis: the extent of, and justification for, the intrusion; and the
degree of discretion vested in the officers responsible for
carrying out the program.

The purported goal of the program was to hand out safety
pamphlets to cab drivers. It is uncontroverted that the officers
were not investigating a recent or ongoing crime or preventing
the imminent commission of a robbery, despite some testimonial
suggestion that the officers’ efforts were motivated by recent cab
robberies in the vicinity. As such, the government interest in
generally discouraging or investigating criminal activity, “does
not implicate the same important social objectives that are at
issue when police are investigating recent or ongoing suspected
criminal activity” (People v Spencer, 84 NY2d 749, 754 cert
denied 516 US 905). In “the absence of a crime ‘afoot’ ” (id.,
756, citing United States v Ward, 488 F 2d 162), the People bear
the burden of demonstrating the “genuine need for so immediate
and intrusive an action as pulling over [a] freely moving vehicle”
(Spencer, supra at 757), especially when less intrusive
alternatives are available (id., 758). Parenthetically, to the extent
that the police motive was informational, the same information
might have been conveyed by other means, possibly by
distributing safety pamphlets to dispatchers or the like for further
distribution to cab drivers, but the record is silent on whether
such methods were tried or even posited.

Turning to the nature of the stop, the “objective intrusion,
. . . Checkpoint stops [are viewed] in a different light [from
roving patrols] because the subjective intrusion - the generating
of concern or even fright on the part of lawful travelers - is
appreciably less in the case of a checkpoint stop” (Santiago,
Supra at 595). The sine qua non of a valid checkpoint, typically
for license and registration or sobriety checks, at which vehicles
are stopped without regard to particularized suspicion, is in the
very obviousness of the police presence and purposes and its

30a

stationary nature. For instance, in People v Scott (supra) the
Court of Appeals found valid a roadblock, flagged by warning

signs facing traffic in both directions some 300 feet from the
checkpoint, manned by two marked police vehicles with flashing
turret lights, and highlighted by flares placed in the center of the
road, at which all vehicles were stopped. The Court of Appeals
found that precautions as to safety, lighting and fair warning
could alleviate drivers’ subjective reactions caused by sudden
and apparently purposeless intrusions by patrolling police. The
fact that the checkpoint was moved on a regular basis to other,
pre-selected, locations did not diminish the stationary nature of
the roadblocks (id.). We found a roadblock to be valid where
several officers, responding to a spate of neighborhood car
thefts, were assigned to conduct systematic mandatory car stops
on a specified corner and directed to pull over every vehicle
coming down the block to check ownership papers (People v
Serrano, 233 AD2d 170 lv denied 89 NY2d 929). Although
generally invalidating “roving patrols” which stop vehicles
without reasonable suspicion, the Court of Appeals has allowed
a “roving roadblock” under narrow circumstances not present
here - when police uniformly stopped all vehicles in a sparsely
populated rural area in connection with recent robberies (People

y John BB., 56 NY2d 482).

In the present case, the People characterize the “checkpoint”
as being stationary. While the record does not indicate that this
was exactly the type of roving patrol that we invalidated in
Muhammad F., and for which suppression was required in
United States v Santiago, (supra), it was nevertheless more akin
to a mobile patrol than to a stationary checkpoint. It bears
repeating that the police vehicle was unmarked and secreted in
the night and, rather than stopping vehicles at the actual
checkpoint, the officers, in plainclothes, were positioned so as to
require a pursuit, even if a quick one, as the cab blithely passed
beyond the supposedly stationary checkpoint.

3la

Nor does the nature of the “policy” in this case instill
confidence in its uniformity, in the indiscriminate nature of the
selection criteria, and in its restriction of subjective motivations
by the very officers carrying out the “policy.” In short, there was
no policy, in the sense that identified criteria were not
promulgated by the central command. Rather, at best, this record
suggests that the very officers carrying out the policy were the
ones who were formulating it. Although deciding on different
grounds, we have noted elsewhere that the fact that the Police
Department allows officers to exercise discretion to stop cabs
ostensibly for the safety of the drivers in the absence of
reasonable suspicion of actual criminal activity does not mean
that the stop thereby is justified (People v Concepcion, 216
AD2d 141 lv denied 86 NY2d 792). The present record suggests
just such street-level discretion, or, at best, as characterized by
the Second Department, only “an unelaborated precinct
directive” (People v Vails, 170 AD2d 550) as the predicate for
the stop. By contrast, in People v Scott (supra), the County
Sheriff's office had established a written policy, incorporating
objective criteria (every car was stopped) and selecting the actual
checkpoints as well as the time periods of operation and of
rotation among the checkpoint sites. The officers in Scott
conducting the stops had virtually no discretion as to whom to
stop. This is not to suggest that all discretion ought to be
removed from the officer at the scene, or that a policy, to be
valid, must be in writing (a requirement that we declined to
adopt in Serrano) but those circumstances have been identified
by the Court of Appeals as factors enhancing the nonarbitrariness
required by constitutional standards. It bears repeating that the
supervisory officer who was on the scene might have clarified the
parameters and formality of the policy, but he was not called as
a witness by the People.

The People contend that the selection of an objective number
(stopping one in three cabs) somehow makes the selection
sufficiently neutral to insulate each stop from the officer’s

32a

unfettered discretion. The Southern District, examining the very
argument advanced in the present case, characterized this logic
as “plainly wrong” (Santiago, supra at 596). In that case, as in
this case, there were no written rules, either the individual
officers or unidentified persons in the precinct decided where and
when to conduct stops, there was no reporting regarding the
stops, there was no oversight as to whether stops were truly
conducted in a neutral manner, and the patrols seemed to have
been conducted disproportionately at night. All of this
undermined the ostensible informational motive of the program.
As previously noted, the informational ends in Santiago, as here,
likely could have been accomplished with equal or even greater
ease and efficiency by distributing pamphlets and makmg police
presentations at central locations, such as taxi dispatch locations,
taxi inspection stations, or through the Taxi and Limousine
Commission. This is not to suggest that any of these various
points should be necessary requirements in promulgating this
type of program, but in the aggregate, the silence of the present
record undermines the very clarity and neutrality that case law
has required for vehicle stops unsupported by reasonable
suspicion.

As I noted at the outset, since I cannot see how these facts
can be rationally distinguished from those in Muhammad F., in
which this Court requires suppression, or how a reversal in this
case is in line with Court of Appeals authority, I conclude that
the motion court properly construed governing case law and
properly suppressed. For that reason, I respectfully dissent.

SBE oe Pa ae NGS BET HENS EET AER 9 F

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33a

THIS CONSTITUTES THE DECISION AND ORDER OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST
DEPARTMENT.

Entered: November 17, 1998

S/Catherine O’ Hagan Wolfe
Clerk

Appendix C

Decision and Order of the Hearing Court on
Reargument, entered March 13, 1997

se

42

na, NYitia' ys

35a

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX : PART 39

ee ee ee ee eee ee ee eee mee ee eee eee ee eee ee eee wee ee eee eee eeeeeeeeeen xX
PEOPLE OF THE STATE OF NEW YORK,
-against- Indictment No: 1946/95
DECISION AND ORDER
KEITH BOSWELL,
Defendant.
Oe ee ee eee ee eee eee eee eee sees eeeee= x

ROBERT L. COHEN, J.:

The People have moved to reargue the Court's decision which
granted the defendant's motion to suppress a warrantless police
seizure of physical evidence from the rear passenger
compartment of a taxi cab in which the defendant was the sole
passenger.

This Court held that the forcible cab stop for the sole purpose
of handing out safety literature and safety tips to the cab driver,
was unconstitutional, because there was no "explicit, neutral
limitations on the conduct of the individual officers" (People v.
Scott, 63 NY2d 518, 525). Additionally, the Court noted that
the People's only witness was unaware of any established criteria
or written guidelines limiting individual police discretion in
conducting checkpoint stops (see, People v. Scott, supra; cf.

People v. Spencer, 84 NY2d 749, 758; People v. Concepcion,
216 AD2d 141, lv. denied 86 NY2d 792).

The People's motion to reargue is based upon a subsequently
decided case by the Appellate Division, First Department, in
People v. Serrano, __ AD2d__, 650 NYS2d 95, holding that a

36a

plan establishing a roadblock does not have to be "in writing
emanating from the higher echelons of the Police Department, as
was the case in People v. Scott [63 NY2d 518] .. ., the only
requirement being that the procedure followed be uniform and
not gratuitous or subject to individually discriminatory
selection (citing People v. Ingle, 36 NY2d 413, 416)."
Serrano, AD2d 650 NYS2d at 96-97, supra.

ss )

The People's motion to reargue is granted, and upon
reargument, the Court makes the following findings of fact and
conclusion of law.

I. The Hearing

Police Officer Ray Winslow was the only witness to testify at
the Mapp hearing. On February 27, 1995, Winslow's tour of
duty began at 5:30 P.M.. He and his supervisor, Sergeant
Thomas Galati, were assigned to the Taxi Livery Task Force,
and were on routine anti-crime patrol, in an unmarked police
vehicle, in plainclothes, until about 9:00 p.m., when Segeant
Galati orally directed Officer Winslow to set up a "checkpoint"
in the vicinity of 139th Street and Exterior Avenue, in the Bronx.

Galati informed Winslow that they would be stopping every
third taxi cab for the purpose of handing out safety literature and
safety tips to the cab drivers. While they were parked at the side
of the road, the defendant's cab passed the unmarked vehicle,
and since, according to Officer Wnslow, it was the third cab, the
unmarked police car activated its lights and pursued the cab for
about a half a block, pulling it over opposite 725 Exterior
Avenue.

After parking behind the cab, Sergeant Galati approached the
driver's side while Officer Winslow approached the passenger
side of the cab. Winslow observed the defendant, who was in
the rear passenger compartment, "dip down" and "come back up

37a

real quick". Winslow then observed the defendant kick a "dark
blue like Gap bag" under the front seat, and asked him why he
was doing that. The defendant replied, "What bag," and also
said "that's not my bag".

Sergeant Galati entered the rear passenger compartment,
removed the "Gap" bag, informed Winslow that there were a lot
of drugs inside, and the defendant was arrested.

Officer Winslow testified that he was not aware of any
guidelines regarding the cab stops, written or otherwise, nor was
he familiar with the criteria that Sergeant Galati used in
determining what cabs to stop, and that the procedures for
Stopping cabs "is different sometimes. That night it was every
third cab".

At bar, it is disputed that there was no traffic infraction
committed or suspected, nor did the police observe any criminal
activity relating to the cab driver or defendant. Notably, there is
no evidence that the cab driver was given any safety literature or
safety tips by either officer, and, there is no evidence that either
officer approached the cab driver with safety literature in their
possession.

II. Findings of Fact and Conclusions of Law

The People contend that Sergeant Galati's oral instruction to
Officer Winslow to set up a checkpoint and stop every third taxi
cab for the purpose of handing out safety literature and safety
tips to cab drivers was nondiscriminatory, and was thus lawful,
citing People v. Serrano, __ AD2d___, 650 NYS2d 95, 96-97,

supra.

In my opinion, the People's characterization of the police
action as a "checkpoint" operation, is in error, and their reliance
upon People v. Serrano, supra, is also inapposite to the facts of

38a

this case. Serrano involved a "roadblock" conducted by six to
eight officers under the supervision of a sergeant conducting
mandatory stops to check for stolen cars in an area proximate to
where "a lot of stolen vehicles" were recovered. People v.
Serrano, 650 NYS2d , at 96.

At bar, Winslow and his sergeant were alone, in an unmarked
vehicle, in plainclothes, parked at night at the side of the road,
presumably out of sight, and when defendant's cab passed them,
the unmarked police vehicle pursued the cab effecting a forcible
stop of the cab.

I find that the foregoing police action was not a checkpoint
stop, as that term is understood in search and seizure
jurisprudence, but, rather, Officer Winslow's pursuit, and forcible
stop of the cab, constituted in actuality a random patrol type stop
requiring as a factual predicate reasonable suspicion that a
vehicle and traffic law violation or reasonable suspicion that an
occupant of the vehicle has committed, was committing, or was
about to commit a crime (see, Delaware v._ Prouse, 440 U.S.
648; United States v. Brignoni-Ponce, 422 U.S. 873; Almeida-
Sanchez _v. United States, 413 U.S. 266; United States v.
Santiago, 1996 WL 742856 (S.D.N.Y.); People v. Spencer, 84
NY2d 749; People v. May, 81 NY2d 725; People v. Millan, 69
NY2d 514; People v. Sobotker, 43 NY2d 559; People v. Ingle,
36 NY2d 413; People v. Concepcion, 216 AD2d 141, lv. denied
86 NY2d 792; People v. Rosario, 160 Misc.2d 1081; People v.
Genn, 144 Misc.2d 596).

Importantly, a checkpoint stop has certain characteristics that
are consonant with the Fourth Amendment's guarantee that a
search and seizure not be "unreasonable". Those characteristics
were aptly described in United States v. Ortiz, 442 U.S. 891,
893, quoting from United States v. Baca, 368 F. Supp. 398, 410-
411, as follows:

39a

Approximately one mile south of the checkpoint
is a large black on yellow sign with flashing
yellow lights over the highway stating 'ALL
VEHICLES, STOP AHEAD, | MILE.' Three-
quarters of a mile further north are two black on
yellow signs suspended over the highway with
flashing lights stating 'WATCH FOR BRAKE
LIGHTS.' At the checkpoint, which is also the
location of a State of California weighing station,
are two large signs with flashing red lights
suspended over the highway. These signs each
state 'STOP HERE - U.S. OFFICERS'. Placed
on the highway are a number of orange traffic
cones funneling traffic into two lanes where a
Border Patrol agent in full dress uniform,
standing behind a white on red 'STOP' sign
checks traffic. Blocking traffic in the unused
lanes are official U.S. Border Patrol vehicles with
flashing red lights. In addition, there is a
permanent building which houses the Border
Patrol office and temporary detention facilities:
There are also floodlights for nighttime operation

See also, United States v. Martinez-Fuerte, 428 U.S. at 545-
546, supra; Michigan v. Sitz, 496 U.S. 444; Maxwell v. City of

New York, 102 F.3rd 664; People v. Scott, 63 NY2d, at 525-
526, supra.

Additionally, the Supreme Court in Ortiz noted that
checkpoint stops are far less intrusive than the circumstances
surrounding a roving-patrol stop:

Roving patrols often operate at night on seldom-
traveled roads, and their approach may frighten
motorists. At traffic checkpoints the motorist
can see that other vehicles are being stopped, he

40a

can see visible signs of the officers' authority, and
he is much less likely to be frightened or annoyed
by the intrusion.

United States v. Ortiz, 422 U.S., at 894-895, supra. In the
United States v. Martinez-Fuerte, 428 U.S. 543, 559, supra, the
Court once again identified those factors that distinguish a
checkpoint seizure from a roving patrol, stating:

[C]heckpoint operations both appear to and
actually involve less discretionary enforcement
activity. The regularized manner in which
established checkpoints are operated is visible
evidence, reassuring to law-abiding motorists,
that the stops are duly authorized and believed to
serve the public interest. (emphasis added).

Importantly, the Court further observed :

The location of a fixed checkpoint is not chosen
by officers in the field, but by officials responsible
for making overall decisions as to the most
effective allocation of limited enforcement
resources. We may assume that such officials
will be unlikely to locate a checkpoint where it
bears arbitrarily or oppressively on motorists as
a class. And since field officers may stop only
those cars passing the checkpoint, there is less
room for abusive or harassing stops of
individuals than there was in the case of roving-
patrol stops,

United States v. Martinez-Fuerte, 428 U.S., at 559 (emphasis
added).

4la

In People v. Scott, 63 NY2d 518, 525, supra, the Court of
Appeals stated that a checkpoint seizure of an automobile must
be "carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers' [citing Brown v.

Texas, 443 U.S. 47, 51; Delaware v. Prouse, 440 U.S. 648, 663;
United States v. Martinez-Fuerte, 428 U.S. 543, 558-562)".

Most significantly, the Court in Scott held that the checkpoint
program at issue there

[W]as being maintained in accordance with a
uniform procedure which afforded little
discretion to operating personnel, and that
adequate precautions as to safety, lighting and
fair warning of the existence of the checkpoint
were in operation

People v. Scott, 63 NY2d, at 526, supra, (citations omitted)
(emphasis added).

In contrast to the above-noted illustrations of the essential
components of a valid checkpoint stop .see also, Michigan v.
Sitz, 496 U.S. 444, supra; Maxwell v. City of New York, 102
F.3rd 664, supra, (2nd Cir. 1996)), the police action at bar bore
none of those important characteristics. The stop here was at
night, without warning, by an unmarked police car that pursued
the taxi cab in which the defendant was a passenger and forcibly
stopped the cab's lawful progress to its destination.

The police action here was, in fact, a roving-patrol type stop
devoid of any factual predicate, with less justification than the
stops condemned in Unit s v. Bri i-Ponce, 422 U.S.
873, supra; Almeida-Sanchez v. United States, 413 U.S. 266,
supra; People v. Spencer, 84 NY2d 749, 758, supra; People v.
May, 81 NY2d 725, supra; People v. Sobotker,43 NY2d 559,

42a

supra; People v. Concepcion, 216 AD2d 141, lv denied 86
NY2d 742, supra.

The avowed purpose for the stop, to hand out safety literature
to cab drivers, could be effectively accomplished in other ways,
suggested in United States v. Santiago, 1996 WL 742856, supra,
(S.D.N.Y.), by distributing such information through the Tax and
Limousine Commission, at dispatch offices, and taxi inspection
stations.

As poignantly observed in People v. DeBour, 40 NY2d 210,
220, "[o]ne aspect of law enforcement warrants particular

mention and that is the area of crime prevention. Since this
function is highly susceptible to subconstitutional abuses it will

be subject to the greatest scrutiny . . ." (emphasis added).

In sum, I find the forcible stop of the cab an unreasonable
seizure in violation of the defendant's reasonable expectation of
privacy and freedom from arbitrary governmental interference "at
the unfettered discretion of officers in the field". Brown v.
Texas, 443 U.S.47, 50-51, supra; Delaware v. Prouse, 440 U.S.
648, 654-655, supra; United States v. Brignoni-Ponce, 422 U.S.
873, 882, supra; United States v. Santiago, 1996 WL 742856,
supra; People v. Scott, 63 NY2d 518, supra; People v. Rosario,
160 Misc.2d 1081, supra; People v. Genn, 144 Misc.2d 596,
supra.

Accordingly, upon reargument, this Court adheres to its prior
decision and order, dated October 26, 1996, granting defendant's
motion in all respects.’

' Had this stop been lawful defendant's denial of ownership or knowledge
of the "Gap" bag, constituted an abandonment and consequently, defendant
would lack standing to challenge the search of the bag (see, People v.
Harris, ___AD2d___, 643 NYS2d 88; People v. Boyd, 213 AD2d 291, 292,

appeal denied 85 NY2d 970, People v. Hazel, 194 AD2d 440, lv denied 82

43a

This opinion constitutes the decision and order of the Court.

Dated: March 13, 1997

S/RLC
Robert L. Cohen
J.S.C.

Received
District Attorney
Bronx County

97 Mar 27 PM 1:48

Filed

March 26 Rec'd

Supreme Court Clerk's Office
Bronx County

NY2d 755). However, since the stop was unconstitutional, the evidence
subsequently seized must be suppressed as the "fruit" of that unlawful
seizure (see, Wong Sun v. United States, 371 U.S. 471, 485; People v.
Holmes, 81 NY2d 1056; People v. Millan, 69 NY2d 514; People v. Rijo, 220
AD2d 217, appeal denied 88 NY2d 852; People v. Concepcion, Supra.

Appendix D

Initial Decision and Order of the Hearing Court
entered October 25, 1996

45a

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX : PART 39

PEOPLE OF THE STATE OF NEW YORK,

-against Indictment No: 1946/95
DECISION AND ORDER
KEITH BOSWELL,

Defendant,

ROBERT L. COHEN, J.:

Defendant is charged with two counts of Criminal Possession
of a Controlled Substance in the Third Degree, i.e., possession
of cocaine with intent to sell and possession of one or more
preparations . . . of an aggregate weight of one-half ounce or
more containing a narcotic drug, cocaine.

A Mapp hearing was held on defendant's motion to suppress
the warrantless seizure of a bag containing the alleged cocaine
recovered by the police following a taxi cab stop.

I. The Hearing

Police officer Ray Winslow was the only witness at the
hearing. He testified that on February 27, 1995, he was assigned
to the Taxi Livery task force covering the 44th and 46th
precincts working a 5:30 p.m. to 2:05 a.m. tour of duty. His
supervisor was Sergeant Thomas Galati who orally instructed
him to set up a checkpoint in the vicinity of 725 Exterior
Avenue, in the Bronx. Their purpose was to hand out safety
literature and safety tips to cab drivers.

46a

Sergeant Galati was the driver of their unmarked vehicle and
Officer Winslow was in the front passenger seat. Both officers
were in plainclothes. Sgt. Galati gave an oral direction to stop
every third cab, and, at about 9 P.M., the officers' pulled over a
cab opposite 725 Exterior Street.

Sergeant Galati approached the cab on the driver's side while
Officer Winslow approached the passenger side. Winslow
observed the defendant seated in the right rear passenger
compartment of the cab and noticed the defendant "dip down"
and "come back up real quick". Winslow saw the defendant
kicking a "dark blue like Gap bag" under the front seat, and
asked him why he was doing that. The defendant replied "what
bag", and also said "that's not my bag".

The defendant was directed to exit the cab, and then Sgt.
Galati entered the rear passenger compartment and retrieved the
same bag Winslow saw the defendant kick under the front seat.
Galati said there were a lot of drugs inside the bag, and the
defendant was then arrested. Officer Winslow observed crack
vials, money, and walkie talkies in the bag.

Regarding the cab stop, Officer Winslow did not know the
criteria Sgt. Galati used in determining what cabs to stop, nor
was Winslow aware of any written guidelines in that regard.
Winslow also testified that the procedures for stopping cabs "is
different sometimes. That night it was every third cab."

Before the stop in question, Officer Winslow did not observe
any traffic infraction nor did he observe any criminal activity
relating to the cab in which defendant was a passenger. After the
stop, Winslow did not speak to the driver, and did not know if
Sgt. Galati spoke to the driver. Notably, there is no evidence
that the cab driver was given any safety literature or safety tips.

47a

A police/pedestrian encounter does not always constitute a

"seizure" (see generally, People v. DeBour, 40 NY2d 210;
People v. Hollman, 79 NY2d 181; People v. Bora, 83 NY2d
531). However the police stop of a vehicle is a seizure
implicating constitutional guarantees (see, People v. Spencer, 84
NY2d 749; People v. May, 81 NY2d 725; People v. Millan, 69
NY2d 514; People v. Harrison, 57 NY2d 470; People v.
Sobotker, 43 NY2d 559; People v. Ingle, 36 NY2d 413).

At bar, the defendant has standing to challenge the stop of the
cab in which he was a passenger and may seek to suppress "the
product of that allegedly unlawful police conduct." People v.

Millan, 669 NY2d, at 516, supra; People v. May, 81 NY2d, at

727, supra; People v. Concepcion, 216 AD2d 141, lv. denied 86
NY2d 792.

Ordinarily the police may not stop a vehicle in the absence of
observing either a traffic infraction or possessing reasonable
suspicion "that the driver or occupan's of the vehicle have
committed, are committing, or are about to commit a crime

(citations omitted)." People v. Spencer, 84 NY 2d, at 753, supra.

In the case of a roadblock or checkpoint stop, which is a
seizure within the contemplation of the Fourth Amendment (see,

People v. Scott, 63 NY2d 518, 524; People v. John BB., 56

NY2d 482, cert. denied 459 US 1010; People v. Concepcion,
216 AD2d 141, supra), "individualized suspicion is not a

prerequisite to a constitutional seizure of an automobile which is
‘carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers' (citations
omitted)" People v. Scott, 63 NY2d, at 525, supra.

At bar, there were no "explicit, neutral limitations on the
conduct of the individual officers" (People v. Scott, 63 NY2d, at

48a

525, supra). Sgt. Galati apparently created an ad hoc policy of
what cab to stop, and Officer Winslow was unaware of any
written guidelines or directives from his precinct commander, or
anyone else, establishing criteria for law enforcement personnel
limiting individual police discretion in conducting checkpoint
stops' (see, People v. Concepcion, 216 AD2d 141, supra).

Finally, what was stated by the Court in Spencer, 84 NY2d
749, 758, is particularly applicable to the facts herein:

[T]he instant seizure is also
unreasonable when measured in
terms of the degree of discretion
vested in the officials charged
with carrying it out (see, Scott,
63 NY 2d, at 525, supra). The act
of forcibly pulling defendant over
resulted from the unchecked
discretion of the particular
officers involved. It must be kept
in mind that the defendant was
not the subject of individualized
suspicion. In the absence thereof,
other safeguards are necessary to
ensure that his reasonable
expectation of privacy is not
subject solely to the discretion of
the police. In this case, there
were no objective _saf

circumscribing the exercise of

' An inventory search must be conducted according to a routine
procedure pursuant to a written policy or directive from a police com-
mander, even though the automobile is already in lawful police custody. The
purpose of established guidelines is to limit the discretion of the officer in

the field. People v. Galak, 80 NY2d 715.

49a

police discretion. The stop of
defendant was standardless and
unconstrained. Nor can we
accept the People's urging that
the police officers acted in good
faith. Subjective good faith,
standing alone, is “ot enough
(emphasis added).

In sum, the People failed to produce any evidence of a written
systematic procedure limiting Officer Winslow's discretion in the
conduct of the checkpoint cab stop in the instant case. Notably,
Sgt. Galati, the creator of the alleged ad hoc taxi stop policy,
was not called as a witness (cf. People v. Brown, 34 NY2d 658,
659-660; People v. Miles, 48 AD2d 706).

Based on the foregoing, I find that the stop of the defendant's
cab was unconstitutional (see, People v. Scott, 63 NY2d 518,
supra; People _v. BB., 56 NY2d 482, supra, People _v.
Concepcion, 216 AD2d 141, supra, and that the evidence
thereafter discovered was in direct response to the unlawful stop
(see, Wong Sun v. United States, 371 U.S. 471, 485; People v.
Holmes, 81 NY2d 1056; People v. Millan, 69 NY2d 514, supra;

People v. Rijo, 220 AD2d 217; People_v. Concepcion, 216
AD2d 141, supra.

Accordingly, the defendant's motion to suppress is, in all
respects, granted.

50a

This opinion constitutes the decision and order of the Court.

Dated: October 25, 1996

s/ Robert L. Cohen

J.S.C.

Filed

November 6 Rec'd

Supreme Court Clerk's Office
Bronx County

OP ete UATE ION GOP ALE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0829%3A1. Public record. Not legal advice.