Opinion
24136.
Decided April 21, 2004.
Edward J. Nowak, Esq., Monroe County Public Defender (Leanne G. Staropoli, Esq., assistant public defender, of counsel) for the Petitioner.
Elliot Spitzer, Esq., New York State Attorney General (Charles D. Steinman, Esq., Assistant Attorney General, of counsel) for the Respondents.
A decision nearly a quarter of a century ago in People ex rel. Piccarillo v. N.Y.S. Board of Parole, 48 N.Y.2d 76 (1979) held that the Fourth Amendment exclusionary rule applies in parole revocation proceedings in this state. A number of subsidiary rules were established. Because a hearing officer in the parole revocation proceeding cannot make the decision whether evidence should be suppressed, People ex rel. Robertson v. N.Y.S. Div. of Parole, 67 N.Y.2d 197 (1986); Matter of Finn's Liquor Shop v. State Liquor Authority, 24 N.Y.2d 647, 657 n. 2 (1969); People ex rel. Victory v. Travis, 288 A.D.2d 932, 933 (4th Dept. 2001) ("Hearing Officer has no authority to rule on suppression issues"); Matter of Schoenwandt v. N.Y.S. Div. of Parole, 240 A.D.2d 415, 416 (2d Dept. 1997); People ex rel. Coldwell v. N.Y.S. Div. of Parole, 123 A.D.2d 458 (2d Dept. 1986), a special procedure was devised under C.P.L.R. Article 70 to permit consideration of such claims, to hold hearings, and to determine the claim upon findings of fact and conclusions of law, when a criminal court has not made a "`prior judicial determination'" of the same in the context of a criminal prosecution. People ex rel. Johnson v. N.Y.S. Div. of Parole, 299 A.D.2d 832, 833 (4th Dept. 2002) (quoting People ex rel. Victory v. Travis, 288 A.D.2d at 933). Cf., People ex rel. Derby v. Williams, 206 A.D.2d 831 (4th Dept. 1994) ("exclusionary rule is not implicated" when a petitioner's suppression motion is denied, after a hearing, in a prior criminal action). In some cases, such as this one, due process requires that the final revocation proceeding be adjourned pending resolution of the suppression issue in Supreme Court or the applicable criminal court. People ex rel. Matthews v. N.Y.S. Div. of Parole, 58 N.Y.2d 196 (1983).
This regime has percolated through our court system since 1979 and this habeas corpus proceeding is an example. The criminal action resulting from the police conduct challenged in this proceeding was not fully prosecuted by the district attorney, leaving the suppression issue unresolved in criminal court. This habeas corpus petition was filed after the preliminary parole revocation proceeding. A hearing was ordered to determine whether petitioner's Fourth Amendment rights (or rights under N.Y. Const. Art. 1, § 6) were adhered to. Petitioner contends that he should be granted relief if the court finds that his Fourth Amendment or state constitutional rights under Article 1, § 6 were infringed.
In 1998, however, the United States Supreme Court held that the exclusionary rule does not in general extend beyond "proceedings other than criminal trials," and in particular does not extend to state parole revocation proceedings. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 2019 (1998). See also, United States v. Armstrong, 187 F.3d 392, 393-94, 394-95, (4th Cir. 1999). In the nearly six years since Scott was decided, no treatment of that decision appears in the reported New York decisions. Because there is no statutory or regulatory authority that the exclusionary rule must be applied in parole revocation proceedings, Executive Law § 259-i; 9 N.Y.C.R.R. Part 8005, and because the regulations state that "formal rules of evidence observed by courts need not be followed," excepting rules of privilege, 9 N.Y.C.R.R. § 8005.2(a), the question devolves to whether the Scott decision abrogates Piccarillo. It does, for the following reasons.
Petitioner observes in a memorandum that the court raised this issue with the parties just prior to the taking of testimony. Respondents have since filed a memorandum formally raising whether Piccarillo was abrogated by Scott. Petitioner requested, and was granted time to file papers on the issue. He raises no objection to the court's consideration of the issue in those papers.
A. The facts: what constitution was violated, if any
According to the police testimony at the hearing, petitioner discarded, and therefore abandoned, the cocaine while absconding from police pursuit of him in Jones Park, north of the intersection of Saratoga Street and Lyell Avenue in the City of Rochester. See generally, People v. Ramirez-Portoreal, 88 N.Y.2d 99, 110-11 (1996). The leader of a team of officers that stopped petitioner and recovered the cocaine acknowledged that he saw nothing in petitioner's behavior that was suspicious or furtive as he and his companion rode their bicycles through the park. They acted solely on the orders of Inv. Muller in pursuing and stopping petitioner.
Inv. Muller testified that he saw petitioner near a corner store at 199 Lyell Ave. while patrolling in an unmarked police car in the late evening hours of September 25, 2003. He saw petitioner bend down and place an otherwise non-descript clear plastic sandwich bag on the ground. Petitioner covered it up with dirt. Muller drove on by, and looked back to see petitioner bend down again in an apparent effort to retrieve the bag from the ground. Muller did not actually see the bag in petitioner's hand at that point, however, H.M. 39, nor did he see petitioner engage in a transaction with someone else. Petitioner then rode away with a companion on bicycles, in unremarkable fashion, north toward Jones Park. Inv. Muller observed no other furtive or otherwise suspicious behavior. He provided his expert opinion, however, that petitioner's behavior was consistent with those who engaged in cocaine distribution activities. Muller explained that this was a high crime area, that cocaine was the primary drug of choice there (over marijuana, thus attempting to distinguish petitioner's putative criminal activity from those only committing violations of the law), and that he had observed no one in that area in his experience who actually carried a sandwich in a clear plastic sandwich bag. Inv. Muller, however, could not identify the contents of the bag given the distance involved, nor did he observe petitioner, or his companion for that matter, engage in any other of the tell tale signs of criminal drug activity. Nevertheless, he gave the order over the radio to stop petitioner, and saw one of the at least six units which responded approach petitioner near Jones Park.
Because Officer Lembke's actions upon hearing the order over the radio, together with that of the other six or more units which responded to Jones Park, cannot be characterized as anything less than a "pursuit" of petitioner (Lembke activated his spot lights and drove his marked police car up over the curb and onto the grass and sidewalk of the park itself as he followed petitioner), this case is controlled by People v. Howard, 50 N.Y.2d 583 (1980). The police here, as in Howard, had the right to make a so-called level two De Bour intrusion, i.e., make inquiry of petitioner, id. 50 N.Y.2d at 589, but they could not without more justify anything other than continued "unobtrusive" observation of petitioner. Id. 50 N.Y.2d at 592. See also, People v. Pines, 99 N.Y.2d 525 (2002) (reasonable suspicion necessary to "justif[y] pursuit"); People v. Ross, 251 A.D.2d 1020 (4th Dept. 1998); People v. Hope, 237 A.D.2d 885 (4th Dept. 1997) (same).
See People v. Hollman, 79 N.Y.2d 180, 190 (1992); People v. De Bour, 40 N.Y.2d 210, 223 (1976).
Howard has since been limited, especially in its suggestion that police may not in such circumstances take into consideration a suspect's flight from officers before pursuit begins. See People v. Jones, 69 N.Y.2d 853 (1987); People v. Leung, 68 N.Y.2d 734 (1986). In People v. Martinez, 80 N.Y.2d 444 (1992), the court confirmed that flight may be considered in the decision to pursue a suspect, but held that reasonable suspicion is necessary to pursue a suspect and that flight alone is not enough to reach that threshold. Id. 80 N.Y.2d at 447-48. Here, respondents do not rely on flight, because the police acknowledged that petitioner's behavior, other than the secreting of the sandwich bag under the dirt (and later supposed retrieval, because Muller did not see the object retrieved), was not furtive or otherwise suspicious. According to Lembke, petitioner did not "immediately take off" or otherwise flee when he turned around in the park to notice the marked squad car rapidly approaching, but instead "[j]ust continued riding on his bike."
Lembke's opinion that he was just "following them" in the park, and that he "wouldn't say it was a pursuit," cannot be credited. Lembke was one of "at least six" units responding to Muller's radio call to stop petitioner in the park. He drove his squad car up over the curb into the grass and sidewalk in rapid approach, and ordered petitioner to stop, in close proximity and with the aid of a standard issue spotlight. In other testimony that the court credits, Lembke described it as "more of a simultaneous kind of thing to spotlight him, aquire him, make my intentions known to them after they were spotlighted or at the time." (emphasis supplied). This is by any measure "pursuit" within the meaning of Howard and its progeny. In any event, after the order to stop, when petitioner "just continued riding" without fleeing or making other furtive gestures before discarding the plastic bag, Lembke's continued close pursuit is also subject to Howard scrutiny.
It is this aspect of the case that distinguishes it from People v. Pines, 99 N.Y.2d 525 (2002) and In Re Steven McC., 304 A.D.2d 68, 72-73 (1st Dept. 2003). Pursuit of petitioner began the moment Officer Lembke heard Inv. Muller's order to stop petitioner; Lembke was pursuing, with at least six other units, before anything resembling flight occurred. The indicia of criminal activity observed by police before petitioner's ultimate attempt to discard the bag would not rise to the level of reasonable suspicion justifying the pursuit. In Pines and Steven McC., on the other hand, the suspects noticed the police investigators upon their approach at the outset, and immediately made visceral reactions of surprise and alarm, and then made continuously suspicious, furtive and evasive gestures before the police elevated the encounter to a level three intrusion. Id. 304 A.D.2d at 72-73. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 676 (2000) (unprovoked flight is simply not a mere refusal to cooperate . . . [but], by its very nature, is not `going about one's business'; in fact, it is just the opposite"). In this case, the pursuit in this high crime area began almost immediately, cf., People v. McIntosh, 96 N.Y.2d 521, 526-27 (2001), and was not supported by reasonable suspicion as that term is interpreted under N.Y. Const. Art. 1, § 6.
The case is functionally indistinguishable from People v. May, 81 N.Y.2d 725 (1992) and People v. Holmes, 81 N.Y.2d 1056 (1993), and should be contrasted with People v. Matienzo, 81 N.Y.2d 778 (1993), which involved an observed exchange of a small plastic bag for money and subsequent flight upon the approach of the police. The police in this case had no more founded suspicion than the police had in People v. Reyes, 83 N.Y.2d 945 (1994) and People v. Hill, 302 A.D.2d 958, 959 (4th Dept. 2003), both of which sanctioned only a level two common law inquiry. Yet the police activity here well exceeded what occurred in Reyes, especially because it involved pursuit of petitioner, using a squad car to drive into the park area, and use of the spot light, and an order to defendant, who was on his bicycle, to effectively "pull-over." People v. May, 81 N.Y.2d at 727. Even if the initial command to stop may be viewed as unobtrusive and not a seizure under New York law (I would find otherwise if it were necessary, see People v. Bora, 83 N.Y.2d 531, 535-36 (1994)), petitioner had in the circumstances a right to continue riding, as indeed he did, thus entitling the police only in "keep[ing] . . . [him] under observation" until further indicia of criminality was observed. People v. May, 81 N.Y.2d at 728. See People v. Holmes, 81 N.Y.2d at 1058. Because they instead pursued petitioner immediately upon receiving Inv. Muller's order to stop, and because such pursuit was not then justified by reasonable suspicion (because Lembke conceded that he saw nothing of a suspicious or furtive character during his observation of petitioner while pursuing him until the bag was discarded), petitioner's act of dropping the cocaine to the ground, which occurred subsequent to Lembke's attempt to stop petitioner in the park, was in response to unlawful police activity and may not be considered an abandonment under our law. People v. Ramirez-Portoreal, 88 N.Y.2d at 110.
This is, however, as alluded to above, only a violation of our state constitution. People v. Bora, supra. The police did not "seize" petitioner within the meaning of the Fourth Amendment, even when they pursued him with the objective of seizure, before the physical seizure actually occurred. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51 (1991). "[N]o Fourth Amendment seizure would take place where a `pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit.'" County of Sacrimento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 1715 (1998) (quoting Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1381-82 (1989)). See In Re. Steven McC., 304 A.D.2d at 71 (under Fourth Amendment). Therefore, petitioner's act of abandonment of the cocaine during the pursuit cannot be said to be in response to police action which violated the Fourth Amendment.
With the identification of which constitutional provision, state or federal, was violated, the question turns to the proper remedy in this proceeding, if any.
B. The viability of Piccarillo Piccarillo was one of a series of decisions in the late 1960's and 1970's which held that the exclusionary rule applied in administrative proceedings. Piccarillo, 48 N.Y.2d at 81 (collecting cases, including People v. McGrath, 46 N.Y.2d 12, 21 (1969), and Matter of Finn's Liquor Shop v. State Liquor Authority, 24 N.Y.2d 647 (1969)). In none of these cases was a separate state constitutional rule considered. In Finn's Liquor Shop, the court considered only "whether the exclusionary rule of Mapp v. Ohio, ( 367 U.S. 643) applies to administrative proceedings as well as to criminal prosecutions." Id. 24 N.Y.2d at 653. Federal law was cited throughout the opinion. In McGrath, the court in two actions addressed only "whether in a criminal contempt proceeding the Fourth Amendment requires suppression of defendant's testimony before the Grand Jury as the fruit of an illegal wiretap," and "whether, in a civil disciplinary proceeding in which a policeman is charged with perjury, the Fourth Amendment requires the suppression . . . [of certain testimony], as fruit of an illegal wiretap." People v. McGrath, 46 N.Y.2d at 20. Resolution of both issues was made under the formula of United States v. Calandra, 414 U.S. 338, 347-48 (1974) and other federal exclusionary rule cases. People v. McGrath, 46 N.Y.2d at 21-22, 26-28, 30-31. Finally, in Piccarillo itself, the court simply extended the holdings in McGrath and Matter of Finn's Liquor Shop, both cases involving an interpretation of the Fourth Amendment exclusionary rule (as stated above), and both of which established the general proposition that "[i]t can no longer be disputed that the exclusionary rule is applicable to administrative proceedings in New York," Piccarillo, 48 N.Y.2d at 81, to parole revocation proceedings in particular.
To be sure, as petitioner contends, the court distinguished lower level federal cases, and others from sister states, which had concluded otherwise. Piccarillo, 48 N.Y.2d at 81 n. 6. But the federal cases and the state decisions were in conflict at that time on the federal issue. No effort was made in Piccarillo to create a separate state constitutional rule. As the court later observed, Matter of Patchoque-Medford Congress of Teachers v. Board of Education of Patchoque-Medford Union Free School District, 70 N.Y.2d 57 (1987), the isolated reference to the State Constitution in Piccarillo served only to underscore that "this court has traditionally rested its decisions [in search and seizure cases] on both State and Federal grounds when it appears that they both support the result reached." Id. 70 N.Y.2d at 66 (citing, inter alia, Piccarillo) (emphasis supplied). Notably, the court in Piccarillo did not engage in the substantial exegesis traditionally undertaken by the Court of Appeals when it is creating a separately enforceable State Constitutional standard. See e. g., People v. Harris, 77 N.Y.2d 434, 437-39 (1991) ("detail[ing] some general rules governing independent state review," id. at 438, including that a "noninterpretive analysis of the state provision" is required which "focuses not on the text of the clause but on matters peculiar to this State," id., and whether "the Supreme Court's rule is not adequate to protect New York citizens," id. at 439). See also, People v. Robinson, 97 N.Y.2d 341, 351 (2001) ("[n]one of the reasons for extending protections of our Constitution beyond those given by the Federal Constitution exist here"); People v. Scott and Keta, 79 N.Y.2d 474 (1992) (and cases there collected); People v. Johnson, 66 N.Y.2d 398, 406-07.
Furthermore, this court has found no case in which the Court of Appeals referred to Piccarillo as involving an interpretation of the State Constitution broader than its federal counterpart. See e. g., the cases cited above and esp., People v. Robinson, 97 N.Y.2d at 350; id. 97 N.Y.2d at 367 (Levine, J., dissenting) (both opinions cataloging the decisions in which the court "has not hesitated to expand the rights of New York citizens beyond those required by the Federal Constitution"). Nor do the leading commentators attempt to place Piccarillo in the state constitutional jurisprudence category. See e. g., Robert M. Pitler, Independent State Search and Seizure Constitutionalism: The New York Court of Appeals' Quest for Principled Decisionmaking, 62 Brooklyn L. Rev. 1, 14-15 n. 33 (cataloging all of the cases holding that Art, I, § 6 provides more protection than the Fourth Amendment), 213-15 n. 827 (describing Piccarrilo as having been "decided before the dawn of active New York State constitutionalism"); Symposium: State Constitutional Law: Adjudication and Reform, 13 Touro L. Rev. 135, 161 (1996) (remarks of Professor Peter J. Galie) (until the decision in People v. Johnson, 66 N.Y.2d 398 (1985), "[w]hen the court has addressed the role of the exclusionary rule, it has done so solely in a federal context"); id. 13 Touro L. Rev. at 163 ("In no case has the court of appeals made an explicit decision to adopt a state based exclusionary rule to determine the status of the rule, or to articulate its relationship to the federally based rule.") Finally, the cases of People ex rel. Johnson v. Div. of Parole, supra, and People ex rel. Victory v. Travis, supra, relied on by petitioner, do not help him, because the abrogation issue was not raised in either case.
There is a student comment to the contrary, see Note, Suppress or Suspend: New York's Exclusionary Rule in School Disciplinary Proceedings, 72 N.Y. Univ. L. Rev. 1494, 1508-09 (1997), but it is not persuasive on the point.
Accordingly, the Supreme Court's decision in Scott is held to abrogate Piccarillo, and the court finds that no separate state constitutional rule has been created which calls for application of the exclusionary rule to parole revocation proceedings. There may or may not be reasons supporting the extension of a separate state constitutional or other exclusionary rule to parole revocation proceedings, even in the face of the 1938 Constitutional Convention's express refusal to adopt an exclusionary rule for Art. I, § 6 violations, People v. Richter's Jeweler's, Inc., 291 N.Y. 161, 168-69 (1943); see generally, Peter J. Galie, Ordered Liberty: A Constitutional History of New York 236 (1996); Robert M. Pitler, supra, 62 Brooklyn L. Rev. at 86-97, but they are not for a state Supreme Court justice to consider in the first instance. The exclusive policy making arm of the New York judiciary is the New York Court of Appeals; not trial courts, nor even the Appellate Divisions, may create separate state constitutional rules on their own. People v. Lucas, 183 Misc.2d 639, 644 (Sup.Ct. Monroe Co. 1999) (collecting cases). Particularly in a case such as this, in which such an adventure would appear to put this state in a dwindling and slim minority in applying the exclusionary rule to parole revocation proceedings, it would be inappropriate for this court to announce such a rule for the first time.
The court notes that, when last confronted with the issue whether the exclusionary rule applied in administrative proceedings, the Court of Appeals retreated quite dramatically from the bold and general statements made in Matter of Finn's Liquor Store and Piccarillo i.e., that the rule was generally applicable in administrative proceedings. Matter of Boyd v. Constantine, 81 N.Y.2d 189 (1993) (exclusionary rule inapplicable in administrative disciplinary proceeding against a state trooper). Cf., Juan C. v. Cortines, 223 A.D.2d 126, 131 (1st Dept. 1996) (applying the exclusionary rule to school disciplinary proceedings and applying collateral estoppel to a Family Court suppression order), rev'd, 89 N.Y.2d 659 (1997) (denying collateral estoppel effect to a Family Court suppression order without reaching the exclusionary rule issue). The court is also fortified in its decision that the Court of Appeals administers the exclusionary rule for state constitutional purposes on an individual case basis by the recent holding in People v. Corey Jones, ___ N.Y.2d ___ (April 6, 2004) (slip opn. at 7-8), which declined to extend the exclusionary rule created in People v. Harris, 77 N.Y.2d 434 (1977) to post- Payton violation identification situations.
CONCLUSION
For the reasons stated above, the Petition is denied.
SO ORDERED.