20 Eagle Street: The Court of Appeals

Subject: 20 Eagle Street: The Court of Appeals
Date: 10/29/2005 1:13:20 A.M. Eastern Daylight Time
From: starquest@nycivic.org
To: reysmontj@aol.com
Sent from the Internet (Details)


NOTE: At the end of the article, you will find an invitation to a Museum of the City of New York event on November 1, free to members of New York Civic.



NEW YORK COURT OF APPEALS, IN 2005,
READS THE FOURTH AMENDMENT (1791)
TO AID MAN WITH COKE IN CAR TRUNK
WHO CONSENTED TO VEHICLE SEARCH




By Henry J. Stern
October 28, 2005

This is a link to the text of a decision issued Tuesday by the Court of Appeals, the highest court in New York State, in the case of People v. Gomez. In a nutshell, Gomez, now indicted for drug trafficking, consented to a search of his car. The police, noting new carpeting on part of the floor and new painting on the undercarriage, pried open the gas tank with a crowbar and found one and a half pounds of cocaine. The Court of Appeals reversed the Appellate Division and threw out the conviction on the ground that Gomez's consent to a search of the car did not include permission to search the gas tank, In this case, external evidence indicated to the police that the tank had recently been altered. Judge Carmen Ciparick, appointed by Governor Cuomo, wrote for the Court majority, Judge Susan Read, appointed by Governor Pataki, was the lone dissenter. Two of the three Pataki judges voted with the four Cuomo judges to comprise the majority. Link to the judges' names for their bios, link to their opinions in the Gomez case here.

There were two stories in the tabloids about the case. The longer one consisted of nine paragraphs on page 13 of Wednesday's Daily News. It was written by Joe Mahoney of the paper's Albany News Bureau.

The New York Post dealt with the case Wednesday in a two-paragraph squib on page 19, by Kenneth Lovett. That story was clearly truncated because space was limited. The newspapers of record have not as yet reported the Court of Appeals decision.

The case was remanded to the Appellate Division for consideration pursuant to the Court of Appeals decision, so Gomez will not necessarily go free. The lower court will consider the extent of the consent, the effect of the defendant's silence when the search was conducted in his presence, and the reasonableness of the police officers' suspicion, which was based on the physical appearance of the car - the repainted undercarriage and a fresh carpet over part of the floor of the rear compartment.

Nonetheless, the Court of Appeals seems to have rejected the 'reasonable man' standard in favor of the protection of gas tanks, even when they contain cocaine. It would, however, be only fair that in the event no drugs were found in the tank, the city should have the obligation to repair the tank, refill it with gas, and reinstall or replace the carpet.

This is a case you are qualified to judge for yourself after reading what the judges wrote. Both opinions read like Talmudic disputations, parsing and twisting past precedents so they appear to govern this fact situation. We, in our naivet�, see what we believe is the interest of the general public. It is better to interfere with the distribution of cocaine before it reaches the streets for resale than to collaborate with drug dealers by limiting the scope of their consent, or forbidding the police to follow clues which they discern because of their experience in dealing with subterfuge of this sort. Query, if a police dog had sniffed the cocaine, would that be reasonable cause for a search?

What we derive from this case is that these judges are erudite and display skills in reasoning and communication. What sort of opinion might Harriet Miers have written; we'll never know. But the Court of Appeals majority, in our judgment, just doesn't get the underlying situation. What if it were a terrorist transporting an infernal device? Should he get away with his crime just because the search of his car was more intense than the terrorist had anticipated when he consented to the search? What if he had said "Stop" in the middle of the search? That sounds ridiculous to us. But you will find that concept in the majority opinion, dealing with the nuances of defendant's expectations, scope and extent of Gomez' consent.

Clearly, most of the Court of Appeals is not persuaded by pragmatic arguments. They see the case as an exercise in the meaning and scope of consent. Others see People v. Gomez as a rebuke to cops using their jobs and doing their job by making a more thorough search than Gomez may have had in mind.

The New York State Court of Appeals has traditionally been even more protective of defendants' rights than the United States Supreme Court. That may be a blue-state phenomenon (you see it also on the Ninth Circuit). Prosecutors can go too far, and the courts are a necessary check. Both opinions discuss a 'bright line rule' in different contexts to prove their point. The bright line can be drawn in different places.

Rules are helpful guides, as long as they can be modified by common sense. In People v. Gomez, we suggest that the Court has let technicalities impede reasonable judgment as to what conduct is appropriate for police officers. We train cops to use insight and to follow small clues. We should not disregard their findings when they do what we have hired and trained them to do.



#261 10.28.05 848wds



Tuesday, November 1 � 6:30 PM

The Works: Anatomy of a City


One of the great challenges of the Koch administration was to address the aging infrastructure of the city in the aftermath of the fiscal crisis. Kate Ascher, Executive Vice President of the New York City Economic Development Corporation, brings the vitally important story of the city's hidden systems up to date in her new book, The Works: Anatomy of a City (Penguin, 2005). Ascher offers a riveting account of the extraordinarily complex, often invisible, and wholly taken for granted technologies, and the people behind them, that make urban life possible. Reception and book signing follow. A special viewing at 6:00 pm of the new exhibition New York Comes Back: Mayor Ed Koch and the City precedes the program.

FREE FOR NY CIVIC MEMBERS

$5 for MCNY Museum members, seniors and students; $7 for non-members. For more information or to purchase tickets, please call 212-534-1672 ext. 3395





Henry J. Stern
starquest@nycivic.org
New York Civic
520 Eighth Avenue
22nd Floor
New York, NY 10018
(212) 564-4441
(212) 564-5588 (fax)

www.nycivic.org