The People, Respondent,v.Andrew R. Bushey, Appellant.BriefN.Y.March 29, 2017To be Argued by: BARRY NELSON COVERT, ESQ. (Time Requested: 15 Minutes) APL-2016-00032 Erie County Clerk’s Index No. 2014-APP228 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – ANDREW R. BUSHEY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LIPSITZ GREEN SCIME CAMBRIA LLP Barry Nelson Covert, Esq. Erin E. McCampbell, Esq. Attorneys for Defendant-Appellant 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Tel.: (716) 849-1333 Fax: (716) 855-1580 Date Completed: July 7, 2016 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................ ii PRELIMINARY STATEMENT ...................................................................... 1 ARGUMENT .................................................................................................... 1 OFFICER ROETZER CONDUCTED AN UNLAWFUL “SEARCH” OF DEFENDANT’S PERSONAL INFORMATION STORED ON A RESTRICTED ELECTRONIC DATABASE MAINTAINED BY THE STATE ..................................................... 1 CONCLUSION ................................................................................................. 6 ii TABLE OF AUTHORITIES Cases Page People v. Candelaria, 101 A.D.3d 1139 (2d Dep’t 2012) .......................................................... 1 People v. De Bour, 40 N.Y.2d 21 (1976) ............................................................................... 2 People v. Volmar, 29 Misc.3d 1207(A), *3 (Troy City Ct. Sept. 10, 2010) ........................ 1-2 Federal Statute 18 U.S.C. § 2721(b)(1)...................................................................................... 4 1 PRELIMINARY STATEMENT Defendant submits the instant reply brief1 in further support of his opening brief (“Def.’s Br.”), respectfully requesting that this Court reverse the County Court’s decision because the City Court’s decision to suppress the evidence against Defendant, which was wrongly reversed by the County Court, should be reinstated. Nothing the People have said in their opposition brief (“Pl.’s Opp’n”) suggests that this Court should rule otherwise. ARGUMENT OFFICER ROETZER CONDUCTED AN UNLAWFUL “SEARCH” OF DEFENDANT’S PERSONAL INFORMATION STORED ON A RESTRICTED ELECTRONIC DATABASE MAINTAINED BY THE STATE As a preliminary matter, Officer Roetzer conducted a “search” when he typed Defendant’s license plate number into his CHARM computer software to obtain (or access) information stored on an electronic government database pertaining to the vehicle’s registration status as well as “information about [Defendant].” (R. 79.) A search of an electronic government database is a search for purposes of suppression analysis. Cf. People v. Candelaria, 101 A.D.3d 1139, 1140 (2d Dep’t 2012) (describing the act of the police entering a suspect’s nickname into a database as a “search”); People v. Volmar, 29 Misc.3d 1207(A), 1 For purposes of clarity, the instant reply brief uses all of the same definitions and abbreviations set forth in Defendant’s opening brief. 2 *3 (Troy City Ct. Sept. 10, 2010) (describing the process of verifying that a particular individual resides at a particular home through use of multiple government databases as “database searches”). Indeed, the gravamen of the dispute between the parties is whether Officer Roetzer’s search was unlawful. In his opening brief, Defendant set forth several reasons as to why that arbitrary, random, and standardless search of a restricted electronic database was unlawful, namely, that such a search permits law enforcement officers to bypass the well-settled prohibition on suspicionless vehicle stops as well as the rules of inquiry established by this Court’s decision in People v. De Bour, 40 N.Y.2d 21 (1976) to manufacture the reasonable suspicion necessary to stop an otherwise law-abiding vehicle. (Def.’s Br. at 9-22.) The People’s arguments to the contrary are unfounded. First, the People’s assertion that a law enforcement officer’s observation of a license plate does not constitute a “search” or a “seizure,” and therefore, no violation of Defendant’s privacy occurred, see Pl.’s Br. at 6-7, is nothing more than a red herring. Officer Roetzer’s observation of Defendant’s license plate is not the subject of the instant appeal. Defendant does not and could not assert that Officer Roetzer’s viewing of his license plate was unlawful. Rather, Defendant challenges Officer Roetzer’s arbitrary, random, and standardless search for vehicle 3 registration and driver information associated with his license plate number contained on a restricted electronic database maintained by the State. Second, the People’s contention that law enforcement officers must have “free access to vehicle registration information” to determine whether or not a vehicle is insured or to identify stolen vehicles and that ruling in Defendant’s favor would quash such law enforcement efforts (Pl.’s Br. at 9) misunderstands, again, the fundamental issue on appeal. Defendant does not challenge or seek to impede the access of law enforcement officers to such databases when their searches are conducted as part of an investigation, or on the basis of some level of suspicion of criminality afoot, even if minimal, regarding the particular vehicle at issue. Under each of these scenarios, law enforcement officers would be searching for information because they had suspicion, to some degree, that criminality was afoot. Moreover, in the case of verifying insurance and registration status, if the CHARM searches were conducted pursuant to a policy or procedure for verification, such as searching for information on every vehicle that passed a particular location (or every tenth vehicle or any other identified permutation), such searches may not be arbitrary, random or standardless. Rather, the policies or procedures that triggered those searches would insure the opposite—that law enforcement officers were accessing personal information to accomplish a law enforcement goal. Thus, contrary to the People’s assertion, ruling in Defendant’s favor would not impede 4 the efforts of law enforcement officers to combat crime. Indeed, the only ruling Defendant seeks is a ruling prohibiting law enforcement officers from conducting searches when they have no suspicion whatsoever that the vehicle or its driver were or are engaged in criminality. Similarly, Defendant does not dispute that, as a matter of federal law, law enforcement officers are permitted to access personal information maintained on electronic government databases to “carry[] out” law enforcement “functions.” (Pl.’s Br. at 9 (quoting 18 U.S.C. § 2721(b)(1)).) However, when an officer observes a driver doing nothing “unusual,” as Officer Roetzer testified, it is hard to justify a search of such records under the rubric that Officer Roetzer was “carrying out” law enforcement duties. There is no evidence that Defendant was under investigation or that his vehicle was known to law enforcement officers to be associated with criminality. Further, the search of Defendant’s information was not initiated pursuant to a policy or procedure to achieve a law enforcement goal, such as identifying stolen or uninsured vehicles. There was absolutely no reason for Officer Roetzer to search for Defendant’s information, other than to manufacture the reasonable suspicion necessary to stop his vehicle. This issue, in a broader context, namely, the search of personal information contained in electronic government databases by law enforcement officers unrelated to any suspected wrong doing, has received much public attention. (See 5 Def.’s Br. at 26-28 (citing articles discussing civil suits against law enforcement officers for their arbitrary, random, and standardless search and access of personal information on electronic government databases).) The ultra vires actions of the officers featured in the articles discussed in Defendant’s opening brief are indistinguishable from the actions of Officer Roetzer because in each situation, there was no suspicion of criminality to justify the officer’s search. Consequently, when there is no suspicion of criminality, when an individual has done nothing “unusual” to draw an officer’s attention, the officer’s search of a restricted electronic database to manufacture the reasonable suspicion necessary to stop a vehicle, much like searching a database to obtain the telephone number and address of a romantic interest, should be found to be an unlawful intrusion into the constitutionally enshrined protection from unreasonable searches. Finally, there is sufficient testimony to support the notion that the electronic database at issue, which was accessed through CHARM software, was restricted and that it contained personal information about Defendant. As Officer Roetzer testified: I don’t know the breakdown of the name of it, but it’s a computer based system that we have in our cars that runs checks through the [Department of Motor Vehicles (“DMV”)]. All I do is type in the letters and numbers on the license plate and it gives you back information on the status as far as registered, valid, and information about the owner of the vehicle based on the license plate. (R. at 78-79 (emphasis added).) This testimony indicates that the database accessed is restricted because it is something that, according to Officer Roetzer, "we" (meaning law enforcement officers) have the ability to access. Furthermore, in addition to information about a vehicle's registration status, law enforcement officers are able to access "information about the owner." (R. 79.) CONCLUSION For all the reasons discussed in Defendant's opening and reply briefs, Defendant respectfully urges the Court to reverse the County Court's decision wrongly reversing the City Court's order suppressing the evidence against Defendant and dismissing the instant indictment. DATED: July 7, 2016 Buffalo, New York 6 BARRY NELSON COVERT, ESQ. ERIN E. MCCAMPBELL, ESQ. Attorneys for Defendant, ANDREW R. BUSHEY Office and Post Office Address 42 Delaware Avenue, Suite 110 Buffalo, New York 14202-3901 (716) 849-1333