STATE CONSTITUTIONAL ISSUES.

• Position: Symposium in Honor of Chief Judge Judith S. Kaye - Discussion

THURGOOD MARSHALL U.S. COURTHOUSE

Wednesday, May 24, 2017, 4:00pm

Moderator: Carrie Cohen, Morrison & Foerster LLP

Speakers:

Hon. Jonathan Lippman, Latham & Watkins LLP; Chief Judge, New York Court of Appeals (Ret.)

Hon. Victoria A. Graffeo, Harris Beach PLLC; Assoc. Judge, New York Court of Appeals (Ret.)

Vincent M. Bonventre, Justice Robert H. Jackson Distinguished Professor of Law, Albany Law School

Judge Graffeo: Chief Judge Kaye was a woman who made us proud to be female attorneys and jurists. Judge Kaye was appointed to the Court of Appeals in 1983, about six years after Justice William Brennan's famous lecture on State Courts and Social Justice. In a 1995 article, Judge Kaye recalled how impressed she was with his call to "resuscitate our state constitutions" since she, like most attorneys, had been "federalized" and was not very familiar with the contents of our State Constitution. (1) So, even before she began her tenure as an Associate Judge on the Court, Judge Kaye had begun to contemplate the greater role that the New York Constitution could have in state jurisprudence, particularly in common law cases.

In the criminal realm, she publicly expressed her views about how the State Constitution could be an instrument for greater protections for New Yorkers in her concurrence in the 1992 case of People v. Scott (2) and People v. Keta. (3) The plurality writings in this case illustrated the philosophical differences of opinion at the Court regarding the relationship between the federal and state constitutions and when the Court of Appeals should deviate from the parameters established by U.S. Supreme Court precedent. (4) The Scott case involved a classic real property "law school" fact pattern--it was a "curtilage" case. (5) Although Mr. Scott had posted "no trespassing" signs on his 165-acre property, a deer hunter walked on his land and discovered Scott's marijuana crop. (6) The hunter alerted the State Police and a State trooper accompanied the hunter to the property to check out the cultivation. (7) This was, of course, done without Scott's knowledge or permission. (8) The State Police later obtained a search warrant and confiscated the plants, resulting in Scott's arrest for criminal possession of marijuana. (9)

As part of his defense, Scott filed a suppression motion claiming that the police had illegally entered his property. (10) The trial court denied his suppression request, and the Appellate Division affirmed that ruling. (11) Both courts relied on the U.S. Supreme Court's Fourth Amendment analysis in Oliver v. U.S., (12) in which the Supreme Court articulated the "open fields" doctrine. Applying the rationale in Oliver, the lower courts had concluded that Scott was not entitled to an expectation of privacy outside the curtilage of his residence. (13) Since the marijuana plantings were a distance from his home, the courts concluded that no search and seizure violation had occurred under the Fourth Amendment or Article I of the New York State Constitution. (14)

The New York Court of Appeals reversed in an opinion authored by Judge Stewart Hancock. (15) He explained that the Court's previous precedent in People v. Reynolds, (16) (another curtilage case that perhaps could have been distinguished on the basis that the property owner in that case had not posted "No Trespassing" signs) could be disregarded if the Court determined that the Oliver decision did not sufficiently safeguard the constitutional rights of New Yorkers. (17)

This was not the first time the Court of Appeals considered using language in the State Constitution to extend greater protections than those recognized by the U.S. Supreme Court. For instance, People v. P.J. Video, Inc. (18) established the standards for the issuance of search warrants...