New York State constitutional law - today unquestionably accepted and applied as a vital and essential part of New York jurisprudence.

Author:Hancock, Stewart F., Jr.
Position:Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

In 1993, when my article The State Constitution, A Criminal Lawyer's First Line of Defense* 1 was published, reliance on New York State constitutional law to protect individual rights not adequately protected by the United States Supreme Court was still a recently emerging doctrine. (2) As pointed out in First Line of Defense, state constitutionalism of the so-called "new judicial federalism" (3) was given its most widespread recognition and acceptance as a result of a seminal article by Supreme Court Justice William Brennan. (4) *

This renewed reliance on state constitutionalism was by no means unanimously embraced by the judges of the New York State Court of Appeals. In some of the court's decisions at that time, even the thought of applying state constitutional law triggered vigorous, and sometimes incredibly harshly worded, dissents. (5) Moreover, in this earlier period of renewed state constitutionalism in New York, there were unresolved and complex questions about the methods of determining whether and how state constitutional law should be applied in a given case. (6)

State constitutionalism in 2013-2014 is no longer regarded as some arcane methodology requiring an initial selection of the "interpretivist" or "noninterpretivist" approach (7) or some other approach before it may be determined whether the state constitution affords greater protection than the federal in a given case. (8) Rather, it is simply the logical and imminently fair doctrine that when a New York court concludes that an individual has rights that are not protected under the federal Constitution, but should be under the New York Constitution, the court will afford that person the greater protection as a matter of state constitutional law. It is simply a matter of fairness and common sense. As Judge Kaye noted in her concurring opinion in People u. Scott--responding to the arguments raised in the dissent against giving a defendant the protection of the state constitution for rights not covered under the federal Constitution--such independent state constitutionalism in no way demeans the Supreme Court as the nation's highest court, or challenges the authority of its decisions as the supreme law of the United States, or offends the Justices. (9) Today, New York courts accept and routinely apply state constitutionalism when necessary to effectively safeguard individual rights and liberties.

In short, independent state constitutional law is no longer considered novel or unusual. It is now routinely accepted and applied as a matter of course. (10)

What is worthy of note is the variety and in some instances the unquestioned significance of the cases in which state constitutionalism has been employed. In the balance of this article, I will discuss in depth some of these cases.


Consider Weaver, a case involving the constant tracking of the defendant via secret police installation of a Global Positioning System (GPS) under the fender of his minivan. (11) A Court of Appeals majority held that this use of the GPS device constituted an unconstitutional search in violation of privacy rights under article I, section 12 of the New York Constitution. (12)

The Weaver case is significant for several reasons. It is virtually certain to be cited and its applicability questioned in future cases involving the use by police of newer and more sophisticated electronic devices to track a defendant's movements and whereabouts. (13) As stated in a recent front page New York Times article: "Once, only hairdressers and bartenders knew people's secrets. Now, smartphones know everything--where people go, what they search for, what they buy, what they do for fun and when they go to bed." (14)

The dissenting opinion at the Third Department by Justice Leslie Stein and Chief Judge Jonathan Lippman's majority opinion for the Court of Appeals both contain significant discussions of state constitutional law. (15) Finally--and of most interest--about three years after the New York decision in Weaver, the Supreme Court in an almost identical case and applying solely federal law reached the same conclusion in United States v. Jones. (16) Finally, the Court of

Appeals majority opinion in Weaver, in disagreeing with Judge Susan Read's dissenting opinion, seems to clearly reject as outmoded and unnecessary the "interpretive-noninterpretive" methodology advocated by Judge Read. (17)

In Weaver, the defendant had been convicted in Supreme Court, Albany County of charges relating to the burglary of a K-Mart store in Latham. (18) The evidence supporting the conviction was that supplied by the GPS tracking device which the police had secretly placed without a warrant under the fender of defendant's van. (19) The device remained in place for sixty-five days and constantly monitored the position of his vehicle. (20) The GPS device placed the defendant's vehicle in the parking lot of the K-Mart at the time of the crime. (21)

The Appellate Division, Third Department affirmed with a lone dissent by Justice Stein. (22) The majority--while acknowledging the greater protection against illegal searches and seizures afforded as a matter of independent New York constitutional law--held that there had been no violation because the police had not intruded "into the passenger compartment of a vehicle without appropriate justification." (23) The majority did not address the question of whether the secret, warrantless tracking of the defendant by the police through use of the GPS was an invasion of the defendant's state constitutional right of privacy. (24)

Dissenting Justice Stein focused on the issue ignored by the majority: "whether the N.Y. Constitution prohibits constant surveillance of an individual's whereabouts by means of a global positioning system ... device without a search warrant," an issue which "has far-reaching implications and has never been addressed by any appellate court of this state." (25) Justice Stein argued that the police in their secret placement of the GPS without a warrant, and their use of it in the continuous tracking of defendant had committed an unreasonable search and seizure in violation of

defendant's state constitutional search and seizure rights. (26) Notably, Justice Stein added that her "conclusion is not inconsistent with the jurisprudence of this state, which includes an expansive view of individual rights under the N.Y. Constitution." (27)

Chief Judge Lippman, in his opinion for the court, in which Judges Carmen Ciparick, Eugene Pigott, and Theodore Jones concurred, observed that the question of the use of a GPS device for constant tracking had not been addressed by the Supreme Court and, moreover, declined to decide the case on the basis of federal law. (28) The majority noted that the Court of Appeals had "on many occasions interpreted [New York's] own Constitution to provide greater protections when circumstances warrant and have developed an independent body of state law in the area of search and seizure." (29)

Chief Judge Lippman's opinion for the majority concluded that "the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause." (30)

The basis of Judge Robert Smith's dissent, in which Judges Victoria Graffeo and Susan Read concurred, was his conviction that the majority's holding imposed an unwarranted limitation on legitimate and necessary police investigations. (31) As Judge Smith put it:

If the majority is holding--as it apparently is--that police may never, in the absence of exigent circumstances or probable cause, track a suspect with a GPS device, it has imposed a totally unjustified limitation on law enforcement. It has also presented future courts with the essentially impossible task of deciding which investigative tools are so efficient and modern that they are subject to the same prohibition. (32) Judge Read, in her dissent in which Judge Graffeo concurred, concluded that the majority had improperly failed to employ the now largely outmoded and seldom...

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