The People v. Reginald BlandfordThe People v. Reginald Blandford
Submitted by Peter D. Salton, for appellant.
Submitted by William D. Vandelinder, for respondent.
The order of the Appellate Division should be affirmed.
Defendant Reginald Blandford challenges the denial of his motion to suppress marihuana found during a traffic stop of his vehicle. In the course of a stop predicated on the observation of traffic violations—the legality of which defendant does not contest before this Court (see generally People v. Robinson, 97 NY2d 341, 349 [2001])—defendant consented to a search of the backseat of his vehicle. Instead of conducting that search, the police officer walked his canine around the exterior of the vehicle and, in mеre seconds, the canine alerted to the trunk. Defendant argues that law enforcement lacked founded suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior canine sniff search.
A canine sniff search of a vehicle‘s exterior is lawful if police possess a founded suspicion that criminal activity is afoot (see People v. Devone, 15 NY3d 106, 110 [2010]). Determinations regarding the existence of a founded suspicion of criminality involve mixed questions of law and fact (see People v. Mercado, 25 NY3d 936, 937 [2015]; see also People v. Garcia, 20 NY3d 317, 324 [2012]). Therefore, our review is “limited to whether there is evidence in the record supporting the lower courts’ determinations” (People v. McIntosh, 96 NY2d 521, 524 [2001]; see also People v. Britt, 34 NY3d 607, 617 [2019]). As pertinent hеre, “[t]his rule applies where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn” (People v. Howard, 22 NY3d 388, 403 [2013] [internal quotation marks and citation omitted]).
Based on the evidence presented at the suppression hearing, including the officers’ observations prior to and during the stop, there is record support for the determination that a founded suspicion of criminal activity existed here and, thus, the issue is beyond further review (Mercado, 25 NY3d at 937; People v. Martin, 19 NY3d 914, 916 [2012]; Devone, 15 NY3d at 113-114).1 Defendant‘s remaining contentions, to which the dissent alludes, are unpreserved (see People v. Gates, 31 NY3d 1028, 1029 [2018]).
WILSON, J. (dissenting):
When people meet, they often shake hands. If more familiar, they may clasp hands and bring their
On an ordinary November afternoon, outside the On the Way convenience store in Elmira, New York, Reginald Blandford greeted someone thusly. Instead of seeing his handshake or hug as greeting, however, two officers interpreted his actions as a drug sale. They already suspected Mr. Blandford might be involved in drug sales, and they knew the On the Way store was in an area where drug sales occurred.
A state trooper followed Mr. Blandford as he drove away. When he noticed that one of Mr. Blandford‘s two rear license plate lamps was out, the trooper pulled Mr. Blandford over. The trooper then relied on Mr. Blandford‘s behavior outside the On the Way store, along with other observations before and during the traffic stop, to determine he had the appropriate level оf suspicion to detain Mr. Blandford while he brought a drug-detection dog to sniff the exterior of Mr. Blandford‘s car. That canine sniff led to the discovery of marijuana in the car. Because both the New York and U.S. constitutions protect individuals from such intrusions on their reasonable expectations of privacy under these circumstances, I dissent.
I.
Mr. Blandford caught the attention of law enforcement before the afternoon of his arrest. Investigator Backer “knew [Mr. Blandford] was involved in the illegal sale of narcotics” from “general police knowledge.” On the afternoon of Mr. Blandford‘s arrest, Investigator Backer аttempted to summon a state trooper to stop Mr. Blandford, whom Investigator Backer believed was driving without wearing his seatbelt. No trooper arrived before Mr. Blandford parked at the On the Way convenience store, which Investigator Backer described as a “trouble spot in the city.” The Investigator radioed Trooper Shive, describing Mr. Blandford‘s car, noting the alleged seat belt infraction, and telling Trooper Shive that he thought “there may be some criminal activity afoot” outside the On the Way store. Trooper Shive understood that to mean actions that might suggest potential “hand-to-hand dealing,” but that “could be just as simple as loitering.”
Trooper Shive and Investigator Backer observed someone exit the store and sit in the front passenger seat of Mr. Blandford‘s car. After Trooper Shive began following Mr. Blandford‘s car, he noticed that one of its two license plate lamps was out, a violation of
When Mr. Blandford stopped, Trooper Shive had him exit the car to conduct a roadside interview. Mr. Blandford explained that he was giving the person in his car, Mr. Gerdeep Singh, a ride home and that Mr. Singh‘s family owned the On the Way store. Mr. Blandford also mentioned his wallet, money and going to the store to make purchases. Despite those innocuous responses, Trooper Shive felt that he and Mr. Blandford “kind of talked in a circle.” He recognized that giving Mr. Singh a ride home and going to the On the Way store tо buy items were plausible explanations for why Mr. Blandford went to and exited the store. Nevertheless, Trooper Shive found it suspicious that Mr. Blandford said he went to the store to buy something but exited with no visible purchases. Based on the foregoing, Trooper Shive decided he had a “founded suspicion that criminal activity was afoot” and asked Mr. Blandford for consent to search his vehicle. Mr. Blandford gave “mixed consent,” granting Trooper Shive permission to search the backseat area, his driver‘s seat area, and part of the passenger
Mr. Blandford was charged with one count of criminal possession of marijuana in the second degree, a violation of
Mr. Blandford appealed. The Appellate Division, with one Justice dissenting, affirmed, holding that “taken together, the trooper‘s observations of defendant . . . created a founded suspicion that criminal activity was afoot” and that Trooper Shive therefore “properly extended the stop beyond its initial justification” to “conduct[] the canine search” (People v Blandford, 190 AD3d 1033, 1037 [3d Dept 2021]).
II.
When Trooper Shive was asked why he stopped Mr. Blandford, he answered under oath: “I‘m conducting a pretext stop.” Given his candor, I suspect Trooper Shive and Investigator Backer would not quarrel with the following summary of the record, which I reсite in the light most favorable to the prosecution. Without any real evidence, but just “general police knowledge,” the officers believed Mr. Blandford was selling marijuana. So they watched him. They were almost able to stop him for a seatbelt violation, but Trooper Shive and his dog did not arrive in time. When following him after he left the store, it was their good fortune that one of his two license plate lights was not illuminated, giving Trooper Shive a basis to stop
Of course, Mr. Blandford‘s car was parked for a while, in plain view of Trooper Shive and Investigator Backer, outside the convenience store. The store was known as a trouble spot. A handshake or hug is sometimes used to convey drugs. Why couldn‘t Trooper Shive have just walked up with his dog and had the dog sniff the car? Well, the Fourth Amendment would prohibit that. How about the handshake and hugs, the passenger, Mr. Blandford exiting the store with no purchases – all that happened before Mr. Blandfоrd left the parking lot – why not just take a stroll by and let Clark get a good whiff? Sorry, the Fourth Amendment still would have prohibited that. Once Mr. Blandford‘s car was moving again, the officers needed some basis to stop it. This time, one infers that Mr. Blandford was wearing his seatbelt, because the officers did not stop him on that basis and issued no citation for that infraction. Driving with one nonfunctioning license plate light bulb is a traffic infraction, so Trooper Shive had a basis to stop the car to issue a citation. I think it fair to say, though, that Trooper Shive did not stop the car because he wanted Mr. Blandford to get a new lightbulb.
Mr. Blandford‘s case illustrates a trоubling aspect of police behavior: law enforcement can pursue someone they suspect of criminal behavior without a founded suspicion of criminality, wait for the right moment to stop that person for a minor traffic infraction, and then serve up a stew of flavorless facts to transform a stop in which they have no intrinsic interest into the search they sought before they had any evidentiary basis to suspect wrongdoing. Although this case illustrates that problem, its resolution should be much simpler than resolution of the systemic problem: here, the officers did not possess information sufficient to justify the canine search.
A. The traffic stop.
The police may stop a vehicle 30 minutes or later after sunset if one of its license plate lights is not working. Although one might question the cost/benefit calculus of permitting police stops on that basis, that is a legislative choice. However, it is worth noting that a minor change in factual findings would have rendered the stop unlawful.
Trooper Shive may have understood what the Appellate Division did not – that he could not stop Mr. Blandford based on the prior seatbelt infraction. Accordingly, Trooper Shive followed Mr. Blandford in the hope of finding a new traffic infraction or some other basis to stop the car. New York‘s Vehicle and Traffic Law states that motor vehicles, excepting motorcycles, are required to have a white light illuminate their license plate for at least fifty feet from the rear of the car under certain conditions (
Thus, the legality of this stop cannot be justified by the prior seatbelt infraction or by more than 30 minutes passing from sunset; it turns not on Trooper Shive‘s testimony that forward visibility was less than 1000 feet, but on the Appellate Division‘s conclusion that it was reasonable to believe that, if it was “fully dark,” visibility was less than 1000 feet.
I conclude from the above that the stop of Mr. Blandford was pretextual. But you needn‘t believe me—Trooper Shive swore it was. The officers guessed correctly that Mr. Blandford possessed drugs; whether a seatbelt infraction or license plate bulb failure or some other flaw existed was irrelevant to the officers, so long as it provided a basis to stop his car. Pretextual, however, does not mean unlawful.
B. The canine search.
Though the stop was lawful, the canine search for which Trooper Shive prolonged the stop violated Mr. Blandford‘s constitutional rights under the New York and federal constitutions.
Under the New York Constitution, the level of suspicion required before law enforcement сan conduct a canine search of the exterior of a lawfully stopped vehicle is a “founded suspicion that criminal activity is afoot” (People v Devone, 15 NY3d 106 [2010]). That level of suspicion is “level two” in a four-level framework this Court explicated for various police-civilian encounters (People v DeBour, 40 NY2d 210, 223 [1976]). The Appellate Division held that “taken together, the trooper‘s observations of defendant engaging in behaviors commonly seen in outdoor drug transactions at a location known for such activity, his ‘slow roll response’ and furtive movements after the trooper initiated the stop and his evasive, inconsistent answers to the trоoper‘s questions created a founded suspicion that criminal activity was afoot” (Blandford, 190 AD 1036). For the Appellate Division, Trooper Shive therefore properly extended the stop beyond its initial justification to conduct the canine search (
First, Mr. Blandford‘s handshake or hug to at least one person outside the convenience store does not support any suspicion of criminality. Notably, neither officer observed Mr. Blandford deliver or receive any contraband when they saw him greet at least one person outside the store; instead, each acknowledged that his conduct could have been completely innocent. Unless we are prepared to say that the police may detain anyone who hugs or shakes hands outside of a store known to the police to have been the site of drug transactions, those facts cannot be a basis for stopping Mr. Blandford. We should also keep in mind that such a rule would fall more harshly on communities of color and low-income communities: shaking hands as you enter Saks will likely not result in your detention. Because neither Trooper Shive nor Investigator Backer observed any exchange of contraband, it was improper for County Court to consider Mr. Blandford‘s handshakе or hug as a factor supporting its finding that there was a founded suspicion of criminality afoot justifying Trooper Shive‘s canine sniff.
Second, contrary to the holding of the majority and the Appellate Division, the record does not support a finding that Mr. Blandford gave “inconsistent answers to the trooper‘s questions” (Blandford, 190 AD3d at 1036). According to Trooper Shive, Mr. Blandford told him that he was giving Mr. Gerdeep Singh, his fellow passenger, a ride home and that Mr. Singh‘s family owned the store. Nothing in the record suggests those statements were untrue. Mr. Blandford talked about his wallet and money, and he indicated that he was in the store to buy items. The trooper observеd his wallet in the car, which matches Mr. Blandford‘s statement that his wallet was in the back of the car. Because Trooper Shive “didn‘t observe anything that [Mr. Blandford] bought,” he claimed that he and Mr. Blandford “just kind of talked in a circle.” Again, nothing is inconsistent or suspicious about entering a store and leaving
What remains is Mr. Blandford‘s “slow roll” while making “furtive movements.” Perhaps those observations would justify stopping Mr. Blandford, but that is not at issue here: he was stopped for a nonfunctioning license plate lightbulb. Trooper Shive concluded that the slow roll and furtive movements around the floorboards and back seat made him suspicious that criminal activity was afoot.3 The issue here is whethеr, at the time Trooper Shive determined to continue the stop and fetch
of the passenger compartment or in the trunk. Instead, the facts as known to Trooper Shive after he conducted the search and spoke with Mr. Blandford unequivocally suggested that no criminal activity was afoot.
III.
Mr. Blandford also raises two arguments under the U.S. Constitution. First, he argues that Trooper Shive was not permitted tо conduct the canine search under the federal constitutional standard, which Mr. Blandford argues requires reasonable suspicion, a higher threshold than “a founded suspicion of criminal activity afoot.” Second, Mr. Blandford argues that this Court‘s application of the DeBour level two standard of suspicion to canine searches during traffic stops through Devone is therefore unconstitutional.
The majority concludes that Mr. Blandford failed to preserve those arguments. I disagree. In the suppression court, Mr. Blandford‘s attorney argued that the canine search was improper under Rodriguez v United States (575 US 348 [2015]), which concerns the U.S. Constitution‘s protections during traffic stops. Mr. Blandford аgain cited Rodriguez in his brief to the Appellate Division as presenting “another legal issue” raised by his case, arguing that “there is no authority” for police to conduct a canine sniff under the facts and proposition of the case (Brief of Appellant to the Appellate Division at 20). Thus, Mr. Blandford sufficiently argued below that the canine search was improper under the constitutional standard articulated in Rodriguez. In the suppression court, Mr. Blandford does not appear to have argued explicitly that the DeBour
In Rodriguez, the U.S. Supreme Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the [U.S.] Constitution‘s shield against unreasonable seizures” (575 US at 350). The Court specifically held that a canine sniff conducted by an officer after a traffic stop was completed, without the owner‘s permission, was improper (
Determining whether Trooper Shive‘s canine search passes muster under Rodriguez involves two central questions: first, whether Trooper Shive prolonged the traffic stop to effectuate the canine search and second, if he did, whether he had a reasonable suspicion of criminal activity to justify it. There is no question thаt Trooper Shive prolonged the stop to conduct the canine search—he had to return to his vehicle to get the canine, with Mr. Blandford not free to leave in the interim. Indeed, the Appellate Division made a factual finding that the trooper “extended” the traffic stop “beyond its initial justification” to conduct the canine search (Blandford, 190 AD3d at 1036).
Thus, the issue devolves to the second question: did the trooper have a reasonable suspicion to warrant a canine search? The “reasonable suspicion” standard is higher than the “founded suspicion” standard under the New York Constitution (see DeBour, 40 NY2d at 223 [describing a four-tiеred framework for levels of suspicion, with the second level of suspicion (required for police officers to make inquiries) as “a founded suspicion that criminal activity is afoot” and a third, higher level of suspicion (required for police officers to complete a forcible stop and detention) as a “reasonable suspicion that a particular person has committed or is about to commit a felony or misdemeanor“]; Devone, 15 NY3d at 110 [holding that the second DeBour level of suspicion applies to canine sniffs of cars during lawful traffic stops]). As discussed earlier, the record does not support a finding that there was a founded suspicion, and therefore it also cannot support a finding that there was a reasonable suspicion, which is a higher standard.
Because the federal standard in Rodriguez requires a higher level of suspicion than does level 2 of DeBour, Devone, which was decided 5 years before Rodriguez, can no longer be good law. Whether articulated in that way or, instead, by saying that the canine search here was unlawful under the federal standard but not the New York standard does not have any practical importance. Regrettably, the majority concludes that neither way of phrasing the issue was properly preserved, which means that officers and civilians alike must live with uncertainty about the proper test to be applied to canine searches. I would рoint those in doubt to the Supremacy Clause
IV.
Mr. Blandford‘s letter brief raises several policy considerations about police practices in communities of color, arguing that “[t]his case is about . . . how we as a society want to treat persons of color in their neighborhoods and when they step into cars.” He contends that existing laws, and their judicial interpretations, have led law enforcement officers to “stitch together disparate innocuous facts” to satisfy the founded suspicion standard they need to meet for certain intrusions. An objective reader of the facts would have to conclude that the officers here were not concerned that Mr. Blandford would be injured because he was not wearing a seatbelt, or that his license plate could not be read with only one working lightbulb. Rather, they suspected—for reasons we don‘t know—that he was dealing drugs. It is not reasonable to believe their suspicion was based on his hugs, his fruitless shopping at a convenience store or his giving a friend a ride. After searching his car and speaking with him, it could not have been based on a slow roll or furtive movements. It must have been based on something еlse—something they suspected well before that November afternoon. Because that “something else” is not in the record, we are left to wonder how benign or pernicious that suspicion may have been.
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge DiFiore and Judges Garcia, Singas and Cannataro concur. Judge Wilson dissents in an opinion, in which Judges Rivera and Fahey concur.
Decided October 14, 2021