The De Bour/Mcintosh lesson on the importance of state common law.

Author:Graffeo, Victoria A.

From the inception of our American democratic form of governance, state constitutions have historically reflected the concerns and beliefs of their citizens, evidenced by the fact that eighteen state constitutions predated and influenced the drafting of our federal Constitution. (1) I believe that this early desire to retain significant local control over governmental affairs explains, in part, why we have fifty state governments rather than an exclusively federal form of governance. In many instances, the language used in state constitutions with reference to certain rights and obligations is broader or more specific than what is contained in the federal Constitution, and often there may be no federal counterpart for certain subjects. (2) This is clearly the case in New York where the length, the spectrum of subject matter, and the complexity of provisions far exceed that of the federal Constitution. (3) As a result, the New York Court of Appeals has been a national leader in recognizing the benefits that can be derived from examining the nature of rights and the boundaries of protections addressed in a state constitution. (4)

When considering the panoply of rights enjoyed in the United States, most people think of the Bill of Rights and landmark U.S. Supreme Court cases, rather than New York state courts and our state constitution and common law. (5) For example, a citizen's right to be free from unreasonable police searches and seizures is most closely associated with the Fourth Amendment to the U.S. Constitution. (6) But federal court interpretations of Fourth Amendment protections only extend so far; a person cannot rely on the Fourth Amendment in the context of an investigatory police encounter that does not rise to the level of a seizure. (7) This is one area where states can extend--and New York has seen fit to provide--greater rights within its borders than those guaranteed by the federal Constitution. (8) As former Chief Judge Judith Kaye of the New York Court of Appeals described, there is a "floor of federal constitutional rights as defined by the United States Supreme Court," (9) but states can rise above that floor by interpreting their own common law and state constitutions to amplify those rights.

When appropriate, the Court of Appeals has relied on our well-established common-law traditions and the New York State Constitution in defining the legal parameters of governmental actions, particularly in situations involving police conduct. (10) I was indoctrinated in the importance of the common law within months of my arrival at the New York Court of Appeals in connection with police activity that occurred in my own county. By contrasting two cases involving so-called "bus sweeps," I hope to highlight the evolving relationship between federal and state judicial interpretations of civil rights protections.

In Florida v. Bostick, (11) the U.S. Supreme Court in 1991 held that armed narcotics officers had legal authority to question a bus passenger without any articulable suspicion, so long as "a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter." (12) Ten years later, in People v. Mcintosh, (13) the New York Court of Appeals applied precedent grounded in state common law and Article I, Section 12 of the state constitution (14) in concluding that the police could not request that a bus passenger produce a ticket and identification without an objective, credible reason based on the conduct of the passenger. (15) Consequently, New Yorkers enjoy greater protection from arbitrary police questioning in this context than residents of states that adhere to the federal rule.


    The facts of Florida v. Bostick arose from a drug interdiction program conducted by the Broward County Sheriff's Department in Florida. (16) As part of this initiative, officers would "routinely board buses at scheduled stops and ask passengers for permission to search their luggage." (17) On one occasion, two officers, one of whom carried a pistol in a zippered pouch, boarded a bus in Fort Lauderdale and asked Terrance Bostick, "admittedly without articulable suspicion," to produce his ticket and identification. (18) After reviewing the documents and...

To continue reading