Thursday, April 1, 2010


NYLJ 06-06-2007


2. Coincidence or not, Coolidge v. New Hampshire, 403 U.S. 443 (1971) came out the same year as “The French Connection.” That the Nazgul deal with the same issue as Popeye & Co. may only have to do with the zeitgeist, but is as valid an association as any: both concern the same suspicions in the instant case.

“That car is dirty,” Doyle tells his partner, meaning: he knows there is dope in it. He just has to get a warrant, and then have it searched, stripped and re-assembled before…the owner blows his cork de vin. They’d tailed a low-level wiseguy, making his first bow as a go-between, and that led to a wire-tap and hence… If the Northern District Judge hadn’t had Coolidge to cite, he probably would have added the movie into his list of precedents. As it was, his finding that the State Police and Feds had ample time to get straight-up warrants and didn’t have to resort to shabby tricks that neither Wm. Friedkin’s scripter, nor the REAL NYPD, would have us believe, in their wildest imaginations, in the audience.

It was two separate cases the NDNY Justice ruled on. One was where the troopers and DEA watched these clowns making a pickup in the parking lot at Woodbury Commons. If that isn’t an indication of low wattage, the ruse used was even lower; the troopers claimed to be investigating a case of road rage. The second one stopped a guy as a potential gas station drive-away-w/o-pay. Lame-O. If these were not officers of the law, this could be called “false imprisonment” or “improper detention” or even—without too far a stretch—“kidnapping”. As for acting? Let the Academy be the judge.

“Was this necessary?” Any drama desk stringer could put that in his critique and not be faulted. According to the Judge who heard the matter, what sounded like entrapment was due to the fact that “the normal exigencies that would justify auto searches were not present because neither the drivers nor passengers were close enough to their vehicles to obtain a weapon or destroy evidence found in the trunk.” As well, “the defendants were in no position to offer chase.” When added together, the capper was none of the defendants were able to challenge the search on any grounds as they were not even aware they were happening.

Not that this was any different from “The French Connection,” except that they had warrants! However, that wasn’t the main reason for the reversal on appeal. The CoA used the logic that the Nazgul had clearly justified warrantless automobile searches under two theories: one, a lower expectation of privacy in a vehicle, and two, because a vehicle is “readily moveable”, exigent searches are dictated. The opinion states that the lower court had erred in determining that they were not “readily moveable” simply because the drivers and passengers were in police barracks, not sitting behind the wheel. This was seen as a gloss over the potential of the vehicle being moved to another jurisdiction, thereby precluding search, and the lower court’s reading of “ready mobility” had long ago been rejected by US v. Vassilion, 820 F.2d 28 (2nd Cir 1987). (Here, one suspects, Vassilion must’ve been one hell of a brain teaser to apply in the instant case.) It was also the opinion of the CoA that, if this lower ruling were adopted, it would impermissibly graft onto the automobile exception a requirement of some additional exigency beyond the inherent mobility clause. Perhaps even that a driver be present.

But, as well, the district court seemed to have ignored the fact of the diminished expectation of privacy. Which stands to reason, as a house has windows and sides, air-conditioning, luxury sound system, DVD screen, reclinable furniture and is always advertised as “a man’s castle,” as opposed to his “home on the road”. So, of course, one should never think you have the same feeling of security in one as you do in the other.

Which begs the other question: if this were an RV or mobile home, would this still apply? And just what does it take to affect the “inherent mobility clause”? A flat tire?

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