Tagged: stop and frisk

Know Your Rights!

POST WRITTEN BY: Danielle Petretta (J.D. ’17), Pace Law School

On November 18, 2014, the Criminal Justice Society, Criminal Justice Institute and Alumni Relations Office at Pace hosted Know Your Rights symposium. This event was created by Pace Criminal Justice Clinic students under the leadership of Professor David N. Dorfman.

Students were broken into groups, and each group participated in various skits demonstrating the appropriate responses during police street stops, stop and frisks, car searches, cell phone searches and more. While extremely amusing, the skits were followed by an important presentations during which students addressed legal issues involved in each of the skits. One of the problems is that many people do not know their rights and the available appropriate responses. The students’ skits conveyed the importance of being an informed citizen.

Think of some of the following statements and ask yourself if you know the answer:

  • Did you know that if a police officer approaches and asks you general questions, in a non-accusing manner, and you do not wish to answer, you can choose not to answer and walk away? (though doing so requires a level of courtesy)
  • Did you know that you do not have to consent to a car search without a warrant if a police officer stops your car, and that 80% of people only consent because they are uninformed of their right to refuse? (assuming that the officer does not have probable cause such as seeing drugs or firearms)
  • Did you know that cell phones cannot be searched incident to arrest without search warrant that is signed by a judge?

These are few of the questions that plague our justice system on a daily basis, which is why it is important to be aware of our rights, especially as young students in the midst of a technological revolution.

It is no secret that we live in an era where technology is rapidly changing. However, the law has not yet reached the 21st century, so there are many unsettled situation. In the meantime, our court systems battle these complex issues on a daily basis that arise with the advent of new technology. Think about the issues regarding cell phones searches, GPS devices, computers, social media, etc…. How is the law to handle the use of technology and searches while not infringing on person’s expectation of privacy? This is where the difficulty lies. We know that during a car stop, a police officer is allowed to search whatever is in plain view. On the other hand, what is the protocol for searching a computer that is left open and unattended? A cell phone that is seized? Can information found on social media websites be used against a person, and if so, how? What if the social media site is set to private? Do levels of privacy differ on the Internet? Should the same procedures currently applied in searches of cars, houses or people be applied to technology? These are some of the questions presenting much difficulty in articulating new laws.

For now, Riley v. California, decided just this year, is the only precedent we have regarding cellphone searches incident to arrest. An officer may seize a cell phone from an individual after his/her arrest, but may not open the phone or search through the phone without a valid search warrant. Here is an interesting excerpt from the Supreme Court decision: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos” Riley v. California, 134 S. Ct 2473, 2478 (2014). It is clear that new law is warranted, but it must be balanced against our expectation of privacy.

The Know Your Rights event was an eye opener. It would be interesting to see how this event can be incorporated into the public or in other schools, perhaps even high schools. I think it would be an extremely informative and fun experience for young adults to become informed about what is unfolding around them. Personally, I was made aware of the consequences of the technology that we as a society have become so obsessed with and reliant on, while also realizing that the courts face a huge task of creating new laws addressing these new issues. I would urge everyone to become informed not only as to their own rights but also about what is currently being debated in our courts, because we will be the ones who will become affected in the future by the laws that are being created at this moment.

For your convenience, take a moment to begin and read the Know Your Rights! Top Ten Takeaways compiled by Professor David N. Dorfman.

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?

Scheindlin Moves to Fight Removal but Her Motion Is Denied

Last Thursday, the United States Court of Appeals for the Second Circuit denied Judge Shira Scheindlin’s motion to vacate the order of the panel, which removed Judge Scheindlin from presiding on any further proceedings in Floyd v. City of New York, 12 Civ. 2274 (SAS).  

This Court of Appeals decision is the latest twist in the legal drama that ensued following the Floyd decision.

In its decision on Thursday, “the panel clarified that it had not ruled that Scheindlin violated the code of conduct, only that the ‘appearance of partiality required reassignment.”

As this issue gains widespread attention – drawing in the likes of lawyers, law professors, former Mayor Rudolph Giuliani, and police unions – it remains to be seen how the Second Circuit will proceed.  But one thing is certain:  the institutional reputation of this previously unusually well respected court has suffered.

 

Stop and Frisk – the Fate of Floyd

The Floyd case has taken unexpected turns.  After Judge Scheindlin’s decision finding the NYPD stop and frisk practices unconstitutional, the City appealed.  Although the City did not raise the question of Judge Scheindlin’s recusal, the Second Circuit ordered her removed from the case and her ordered remedies stayed.  Then Bill De Blasio was elected mayor of New York City, pledging, among other things, to halt the stop and frisk policy and presumably to withdraw the appeal.  Now Judge Scheindlin has moved to be reinstated.

Where does all of this leave the Second Circuit’s order removing Judge Scheindlin.  Although the order was based, in part, on a finding that Judge Scheindlin had interfered with the Court’s case assignment procedures, the City was present when this alleged impropriety occurred and never moved to recuse her; nor did the City’s appeal raise the issue before the Second Circuit.   Presumably, if the Mayor-elect withdraws the appeal, though, the order of removal will disappear.  Or will it?  What happens to the ordered remedies that have been stayed?  What happens to Judge Scheindlin’s motion?

One thing that is clear is that this entire procedure is unprecedented.  What is likely to happen? What is in limbo?  The thought arises:  why did the well-respected Second Circuit panel reach out to remove Judge Scheindlin knowing that Bill DeBlasio was so likely to win and so likely to withdraw the appeal?  Is this confusion good for the system and its perception by the public?

Related Readings

Judge Asks to be Put Back on New York ‘Stop-and-Frisk’ Case, Reuters, Nov. 6, 2013.
Joseph Goldstein, Court Blocks Stop-and-Frisk Changes for New York Police, N.Y. Times, Oct. 31, 2013.
United States Court of Appeals for the Second Circuit Order of Oct. 31, 2013, staying the District Court’s January 8, 2013 Floyd “Opinion and Order,” as well as the August 12, 2013 Floyd “Liability Opinion” and “Remedies Opinion” and removing Judge Shira A. Scheindlin after concluding that the District Judge violated the Code of Conduct for United States Judges, Canon 2.

Symposium on the Future of Stop and Frisk

The Criminal Justice Society at Pace Law School held a symposium last Tuesday (Oct. 22, 2014) on the future of stop and frisk in New York City.  Prof. David Dorfman moderated, and the panelists were Prof. Randolph McLaughlin, of Pace Law School; Mayo Bartlett, a Pace alum and private criminal defense attorney in White Plains; Heather MacDonald, a fellow at the Manhattan Institute;  and Police Officer David Rullo, a Pace student and a police officer in New Jersey.

The panelists began by debating the merits of Judge Scheindlin’s decision in Floyd, finding that the NYPD’s stop and frisk practices unconstitutional.  The disagreement was not so much over the Judge’s holding as it was over the facts upon which it rested, with Ms. MacDonald asserting that some of the fact finding was not supported by the evidence.  There was also disagreement about whether the Judge was correct in concluding that the racial breakdown of stop and frisk should reflect population demographics, as opposed to the demographics of who commits crimes.

Substantial discussion concerned the need for training police officers: Officer Rullo thought training on the constitutional dimensions of stop and frisk was inadequate and Ms. MacDonald thought the police should have training on how to treat people with respect.  Ultimately, Ms. MacDonald raised a concern that hamstringing the police in stop and frisk would lead to more crime, while Mr. Bartlett and Prof. McLaughlin focused on how many innocent people are arrested under current stop and frisk practices.  All of the panelists were concerned about the impact of stop and frisk – or of stopping the stop an d frisk policy – on the community.

The panelists also proposed solutions. Mr. Bartlett emphasized the need for incorporating police officers into the community.  A reform of the stop and frisk policy based on police presence would foster community relationships that could help police officers deter crime.

With the NYC mayoral election looming, many people worry about whether the crime rate will rise after Floyd and with a new administration.  Many people are debating whether we should reintroduce community policing and, if so, what the impact will be on the community.