MATTER OF MUHAMMAD F.

• Decision Date: 30 November 1999
• Citation: 722 N.E.2d 45,94 N.Y.2d 136,700 N.Y.S.2d 77
• Parties: In the Matter of MUHAMMAD F., a Person Alleged to be a Juvenile Delinquent, Respondent. PRESENTMENT AGENCY, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEITH BOSWELL, Appellant.
• Court: New York Court of Appeals Court of Appeals

94 N.Y.2d 136

722 N.E.2d 45

700 N.Y.S.2d 77

In the Matter of MUHAMMAD F., a Person Alleged to be a Juvenile Delinquent, Respondent. PRESENTMENT AGENCY, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEITH BOSWELL, Appellant.

Court of Appeals of the State of New York.

Argued September 15, 1999.

Decided November 30, 1999.

Michael D. Hess, Corporation Counsel of New York City (Stephen J. McGrath and Alan Beckoff of counsel), for appellant in the first above-entitled matter.

Legal Aid Society, New York City (Raymond E. Rogers and

Monica Drinane of counsel), for respondent in the first above-entitled matter.

Office of Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant in the second above-entitled matter.

Robert T. Johnson, District Attorney of Bronx County, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for respondent in the second above-entitled matter.

Chief Judge KAYE and Judges BELLACOSA, WESLEY and ROSENBLATT concur with Judge LEVINE; Judge SMITH dissents and votes to affirm in a separate opinion; Judge CIPARICK taking no part.

OPINION OF THE COURT

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 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.

On the night of July 7, 1996, the patrolmen parked their unmarked car just off 145th 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 145th 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.

II.

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 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.

III.

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]). 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).

In Michigan Dept. of State Police v Sitz, the Supreme Court stated 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 border" 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).

By contrast, United States v Martinez-Fuerte (428 US 543) upheld suspicionless stops by the Border 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...