The People, Respondent,v.Graham Reid, Appellant.BriefN.Y.November 18, 2014ork THE PEOPLE OF THE STATE OF NEW YORK, -against- GRAHAM REID, Respondent, Defendant-Appelant. ON APPEAL FROM THE APPELLATE DIVISION, FIRST DEPARTMENT NEW YORK COUNTY INDICTMENT# 717 /2009 APL 2013-00155 BRIEF OF AMICUS CURIAE NEW YORK CIVIL LIBERTIES UNION ALEXIS KARTERON CHRISTOPHER DUNN PHILIP DESGRANGES New York Civil Liberties Union Foundation 125 Broad Street, l 9 1 1h Floor New York, N.Y. 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 Atorneys for Amicus Curiae New York Civil Liberties Union Dated: September 5, 2014 New York, N.Y. DISCLOSURE STATEMENT PURSUANT TO RULE 500.l(f) The NYCLU hereby discloses that it is a non-profit, 501(c)(4) organization, and is the New York State affiliate of the American Civil Liberties Union. 1 TABLE OF CONTENTS DISCLOSURE STATEMENT PURSUANT TO RULE 500.l(f) .............. .i TABLE OF AUTHORITIES .......................................... ii INTRODUCTION ........................................ . . ......... 1 STATEMENT OF INTEREST OF AMICUS CURIAE ...................... I ARGUMENT ....................................................... 3 I. WHEN AN OFFICER HAS NO INTENTION OF MAKING AN ARREST, THE FOURTH AMENDMENT AND NEW YORK LAW PROHIBIT APPLICATION OF THE SEARCH INCIDENT TO ARREST EXCEPTION TO THE WARRANT REQUIREMENT. ..... ........... 3 A. Exceptions to the warrant requirement are jealously guarded and are recognized only when there is a nexus between the justification for the exception and the circumstances of the search ... 4 B. The Appelate Division's decision conflicts with precedents of the Supreme Court and this Court. . ........................... 8 IL AFFIRMANCE OF THE APPELLATE DIVISION'S RULING WOULD INVITE EXPLORATORY SEARCHES ........... ........ 12 CON,CLUSION .................................................... 17 11 TABLE OF AUTHORITIES CASES Arizona v. Gant, 556 U.S. 332 (2009) .............. ... . . .... . ..... 5, 11, 17 Arizona v. Johnson, 555 U.S. 323 (2009) ...................... . . ........ 15 Chimel v. California, 395 U.S. 752 (1969) .............................. 5, 7 Din/er v City of New York, No. 04 Civ 7921 (RJS), 2012 WL 4513352 (S.D.N.Y. Sept. 30, 2012) ................................ . .......... 2 Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) ............. 16 Knowles v. Iowa, 525 U.S. 113 (1998) ........................ ..... . .passim Ligon v. City of New York, 925 F. Supp. 2d. 478 (S.D.N.Y. 2013) . . . .... ...... 2 McDonald v. United States, 335 U.S. 451 (1948) ............... . . . . . . . ..... 5 People v. Belton, 55 N.Y.3d 49 (1982) .............. ...... .... ..... .. 11-12 People v. Cruz, 43 N .Y.2d 786 (1977) ... ....................... ..... 10-11 People v. Diaz, 81 N.Y.2d 106 (1993) ........................ . . ........ 11 People v. Erwin, 42 N.Y.2D 1064 (1977) ................. .......... .passim People v. Evans, 43 N.Y.2d 160 (1977) ....................... . . . ... .passim People v. Johnson, 66 N.Y.2d 398 (1985) ....................... ........ 14 People v. Landy, 59 N.Y.2d 369 (1983) .............................. 10-11 People v. Lewis, 50 A.D.3d 595 (App. Div. 2008) ........... . . .... ..... 13-14 People v. Marsh, 20 N.Y.2d 98 (1967) .......................... .... .passim People v. Taylor, 294 A.D.2d 825 (App. Div. 2002) ...... ................. 13 ll Sibron v. New York, 392 U.S. 40 (1968) ........................... .4, 11, 14 Terry v. Ohio, 392 U.S. 1 (1968) .................................. .passim United States v. Riggs, 4 7 4 F .2d 699 (2d Cir. 1973) .................... 10-11 United States v. Robinson, 414 U.S. 218 (1973) ........................... 7 United States v. Skinner, 412 F.2d 98 (8th Cir. 1969) ................... 10-11 OTHER AUTHORITIES New York State Division of Criminal Justice Services, Adult Arests: 2004-2013, New York City, Computerized Criminal History system (Feb. 25, 2014) htp:/www.criminaljustice.ny.gov/crimnet/ojsa/arrests/NewYorkState.pdf. ... 13 Sara LaPlante, Christopher Dunn & Jennifer Cainig, Stop-and-Frisk Dming the Bloomberg Administration (2002-2013), New York Civil Liberties Union (Aug. 2014), htp:/www.nyclu.org/files/publications/08182014_Stop- and-Frisk_Briefer_2002-2013 _final.pdf. .............................. 15 Sarah Ryley, Laura Bult & Dareh Gregorian, Daily News analysis finds racial disparities in summons for minor violations in 'broken windows' policing, New York Daily News (Aug. 4, 2014, 2:00 AM), htp:/www.nydailynews.com/new-york/summons-broken-windows-racial- disparity-gamer-article-l .1890567 ............................... 12-13 STATUTES N.Y. Crim. Proc. L. § 140.10 ......................................... 13 IV INTRODUCTION This case presents this Court with an important constitutional question about the authority of police officers to conduct searches of people pursuant to the search incident to arrest exception to the warrant requirement even when an officer has no intention of making an arrest. Here, the Appelate Division approved such a search merely because the officer possessed the legal authority to arrest the Appelant. In doing so, it dramaticaly expanded the search incident to arrest exception in violation of foundational principles of Fourth Amendment and New York law. The Appelate Division ruling squarely conflicts with the Supreme CoUit's 1998 decision in Knowles v. Iowa-a case the lower court did not even mention and that the Respondent mentioned only at the very end of its brief. The ruling also conflicts with the 1977 decisions from this Court in People v. Erwin and People v. Evans. Moreover, it opens the door to vast numbers of New Yorkers being subjected to ful police searches merely because they are being issued a summons for a suspected minor offense. The lower court's ruling is wrong and dangerous, and amicus curiae the New York Civil Liberties Union urges this Court to reverse. STATEMENT OF INTEREST OF AMICUS CURIAE The New York Civil Liberties Union (NYCLU), the New York State affiliate of the American Civil Liberties Union, is a non-profit, non-partisan organization with tens of thousands of members. The NYCLU is commited to the defense and protection of civil rights and civil liberties. For over sixty years, the NYCLU has been involved in litigation and public policy on behalf of New Yorkers, fighting against discrimination and advocating for individual rights and government accountability. In pruticular, the NYCLU frequently engages in advocacy and litigation defending the right to be free from unlawful searches and seizures. See, e.g., Ligon v. City of New York, 925 F. Supp. 2d. 478 (S.D.N.Y. 2013) (granting preliminary injunction in chalenge to widespread practice of unlawful stops and searches of individuals at private apartment buildings by police officers); Dinler v City of New York, No. 04 Civ. 7921 (RJS), 2012 WL 4513352 (S.D.N.Y. Sept. 30, 2012) (chalenging mass arrests of protesters at 2004 Republican National Convention in New York City). As this case presents an important issue regarding the protections against unreasonable searches provided by the Fourth Amendment and New York law, it is of great interest to the NYCLU. In addition, an opinion in this case is of particular interest to the NYCLU because of the case' s implications for the rights ofNew Yorkers who are issued summonses but not arrested. As discussed in Part II of the argument section of this brief, hundreds of thousands of New Yorkers receive summonses annualy for offenses for which they could alternatively be arrested. As such, if the Appelate 2 Division's ruling were to be affirmed, they could be subject to invasive, warrantless searches. In sum, this case is of interest to the NYCLU because it raises an important constitutional question. ARGUMENT I. WHEN AN OFFICER HAS NO INTENTION OF MAKING AN ARREST, THE FOURTH AMENDMENT AND NEW YORK LAW PROHIBIT APPLICATION OF THE SEARCH INCIDENT TO ARREST EXCEPTION TO THE WARRANT REQUIREMENT. The central issue presented by this appeal is whether the search incident to arrest exception to the warrant requirement should be extended to approve a search conducted by a police officer who had no intention of making an arrest at the time of the search. Misapprehending Fourth Amendment and New York law~ the Appelate Division's ruling approved such a search. The Supreme Court's decision in Knowles v. Iowa, 525 U.S. 113 (1998), and this Court's decisions in People v. Erwin, 42 N.Y.2D 1064 (1977), and People v. Evans, 43 N.Y.2D 160 (1977), plainly command the contrary conclusion. As explained in those decisions, such searches are not permissible because there is no nexus between the justifications for the search incident to arrest exception to the warrant requirement and the search when an officer has no intention of making an arest. Those cases rest on two foundational principles of Fourth Amendinent and New York law. First, given the significant privacy and dignitaiy interests at stake in any search by a government actor, exceptions to the warrant requirement are 3 jealously guarded. Second, exceptions to the warrant requirement are recognized only when there is a tight nexus between the justification for the exception and the circumstances of the search. These principles are addressed below. A. Exceptions to the warrant requirement are jealously guarded and are recognized only when there is a nexus between the justification for the exception and the circumstances of the search. The Fourth Amendment "protects the sanctity of the person against unreasonable intrusions on the part of al government agents." Sibron v. New York, 392 U.S. 40, 66 (1968). The privacy and dignitary interests protected by the Fourth Amendment are substantial. "Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry v. Ohio, 392 U.S. 1, 24-25 (1968). See also id. at 19 (describing a frisk as "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment"); People v. Marsh, 20 N.Y.2d 98, 101 (1967) (noting the "indignity of a search for weapons"). To give meaning to the Fourth Amendment's protections, it is axiomatic that a waITant is typicaly required before a government actor conducts a search. See Terry, 392 U.S. at 20 ("[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure .. "). The waITant requirement reflects the constitutional guarantee that a neutral 4 magistrate, rather than a police officer, should ordinarily be the party deciding whether a search is justified. As the Supreme Court has observed, The presence of a search wan·ant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for ilegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. McDonald v. United States, 335 U.S. 451, 455-56 (1948). In light of these principles, "the basic rule" is that '"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specificaly established and wel-delineated exceptions"' Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1968)). See also People v. Diaz, 81N.Y.2d106, 109 (1993) ("It is fundamental thatwan-antless searches and seizures are per se unreasonable unless they fal within one of the acknowledged exceptions to the Fourth Amendment's waITant requirement."). Exceptions to the waITant requirement are therefore jealously guarded. As the Supreme Court has held, "the general requir,ement that a search wan-ant be obtained is not lightly to be dispensed with, and the burden is on those seeking [an] exemption [from the requirement] to show the need for it .. "'Chime! v. 5 California, 395 U.S. 752, 762 (1969) (internal quotation marks and citation omited; alteration in original)). The question of whether an exception to the warrant requirement should be recognized is analyzed in accordance with the "central inquiry under the Fourth Amendment-the reasonableness in al the circumstances of the particular governmental invasion of a citizen's personal security." Terry, 392 U.S. at 19. Reasonableness turns on whether the search is justified by the rationale for the exception. See id. at 19-20 ("[I]n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."). B. The Appelate Division's decision conflicts with precedents of the Supreme Court and this Court. In consideration of the precedents discussed above, the Supreme Court and this Court have rejected expansions of the search incident to arrest exception in cases where, as here, it was clear that the police officer who conducted the search had no intention of making an arrest at the time of the search. In considering those cases, the Supreme Court and this Court have questioned, in accordance with Terry, whether "the intrusion was justified at its inception,"-i.e., whether there was a nexus between the justification for the exception to the warrant requirement and the search. Those cases command reversal here. 6 In Knowles v. Iowa, the Supreme Court unanimously rejected the contention that a "search incident to citation" is covered by the search incident to arrest exception to the warrant requirement. 525 U.S. at 117-19. There, a police officer stopped the petitioner speeding and issued him a ticket. Id. at 114. The officer then "conducted a ful search of the car," which revealed a bag of marijuana. Id. The officer relied on an Iowa law that explicitly permited "search incident to citation," a statute that had received the Iowa Supreme Court's approval. Id. at 116. The Supreme Court roundly rejected Iowa's proffered extension of the searclh incident to arrest exception to the warrant requirement. In its analysis, it reviewed the two rationales for the exception and found that a warrantless search was not justified in cases where a ticket is issued without an arrest. Id. at 116-19. Those two rationales have been clear for decades: to locate any weapons might be used to harm a police officer effecting the arrest, and to prevent the destruction of evidence relevant to the crime for which the arrestee is being detained. See Chime!, 395 U.S. at 762-63; see also United States v. Robinson, 414 U.S. 218, 234 (1973) ("The justification or reason for the authority to search incident to a lawful arrest rests quite as much as on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial."). 7 The Knowles Court concluded that without an arrest, these justifications were simply not i1nplicated. It held: "The threat to officer safety from issuing a traffic citation .. is a good deal less than in the case of a custodial arrest," id.at 117, and, therefore, "the concern for officer safety .. does not by itselfjustify the often considerably greater intrusion atending a ful field-type search." Id. It also rejected the notion that the second rationale for the search incident to arrest exception to the warrant requirement-the "need to discover and preserve evidence," id.at 118-applied at al. Specificaly, it reasoned as folows: "Once Knowles was stopped for speeding and issued a citation, al the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compaitment of the car." Id In sum, Knowles teaches that intent to arrest is an unquestionable prerequisite to invocation of the search incident to arrest exception to the warrant requirement. This Court has reached the same conclusion more than once in similar circumstances. In People v. Erwin, where the police officer could have arrested the appelant for a traffic infraction, but conducted a search even though he only intended to issue a warning, this Court held as folows: 'There being no arrest the subsequent search of defendant's person and his automobile can be justified only if 8 independent reasonable cause existed." 42 N. Y .2d at 1065. The explanation for this rule was explained at length in another similar case, People v. Evans: To adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident, otherwise once probable cause existed a potential arrestee would fair game for any intrusions the police deem appropriate for however long they alow him to remain at large. While it has been consistently held that there is no constitutional right to be arrested, the police may not utilize the existence of probable cause as a trump card to justify warrantless personal searches. Unless and until a person is arrested. a ful body search without a warrant or exceptional circumstances is constitutionaly unreasonable. 43 N.Y.2d at 165 (emphasis added). Thus, this Court has affirmed that expansion of the search incident to arrest exception to the warrant requirement requires a nexus between the justification for the exception and the proposed expansion. Where none exists, a warrantless searc.h is unconstitutional. In the case at bar, the proffered justification for the search of Appelant- mere legal authority to arrest-bears no resemblance to the rationales justifying the searc.h incident to arrest exception. Without an arrest, there was no need to disarm the Appelant for the purpose of taking him into custody. Moreover, there was no evidence could be colected related to the charge of driving while intoxicated by conducting a pat-down after the Appelant exited his car. Thus, the Appelate Division's holding-that the search "was permissible because at the time of the 9 search probable cause existed to arrest defendant for driving while intoxicated," Reid, 104 A.D.3d at 63-identifies no connection to the rationales that the Supreme Court and this Court have repeatedly invoked to justify the exception. This Court should reverse. The Appelate Division's failure even to address Knowles and Erwin underscores its fundamental misapprehension of the relevant standards. The Respondent commits the same error in interpreting Fow1h Amendment and New York law. Citing Knowles on only page 40 of its 41-page brief, the Respondent does not even atempt to explain why Knowles does not compel reversal here. Instead, it offers the observation that "the Court did not hold that the timing of the arrest was a fatal flaw," Resp. Br. at 41. It goes on to misread the nature of the Comt's analysis. The Court did not simply "note[] that the overarching concerns of officer safety and preservation of evidence .. were lessened in the situation of searches incident to mere citations." Id. Instead, the Knowles court asked whether a warrantless search issued in connection with issuance of a ticket accorded with the dual historical justifications for the search incident to arrest exception and concluded that it did not. See Knowles, 525 U.S. at 116-18. Further, the primary cases cited by the Respondent in support of the Appelate Division's decision al pre-date the Sllpreme Court's decision in Knowles, and two of the four are not binding on this Court. See United States v. 10 Riggs, 474 F.2d 699 (2d Cir. 1973); United States v. Skinner, 412 F.2d 98 (8th Cir. 1969); People v. Cruz, 43 N.Y.2d 786 (1977); People v. Landy, 59 N.Y.2d 369 (1983). Moreover, while they al upheld searches that occurred before the defendant was handcuffed, they are al distinguishable from this case on one crucial point: in none of them did the court make clear that the police officer did not intend to arrest the defendant before the search at issue occurred. Where, as here, it is undisputed that the officer had no intention of conducting an arrest at the time he conducted the search, the search incident to arrest exception simply cannot be stretched to justify a waITantless search without unmooring it completely from its justifications. As in Knowles, Erwin, and Evans, the Supreme Court and this Court have repeatedly refused to broaden exceptions to the warrant requirements without justification. See, e.g., Gant, 556 U.S. at 343-44 (holding exception concerning searches of automobiles was limited to circumstances in which an arrestee is unsecured in the vehicle or when there is probable cause to believe that evidence of the crime for which the person is under arrest wil be located in the vehicle); Sibron, 392 U.S. at 65 (holding that ful-scale search of defendant was unjustified when defendant was not under arest and oficer did not fear for his safety); Diaz, 81 N.Y.2d at 110-12 (refusing to extend plain view exception to the warrant requirement); People v. Belton, 55 N.Y.3d 49 (1982) (holding that under the New 11 York Constitution, the automobile search exception applies only when there is reason to believe that the automobile "may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted"); Marsh, 20 N.Y.3d at 101 (holding that search incident to arrest exception does not apply to people arrested for mere traffic violations). In consideration of Knowles, Erwin, Evans, and the foundations of Fourth Amendment and New York law described above, this Court should refuse to do so again here and reverse. II. AFFIRMANCE OF THE APPELLATE DIVISION'S RULING WOULD INVITE EXPLORATORY SEARCHES . Although precedents of the Supreme Court and this Court clearly require reversal for the reasons explained in Point I, it is also important to recognize that affirmance of the Appelate Division' s ruling would promise the serious abrogation of New Yorkers' Fomth Amendment rights. The Appelate Division' s ruling opens the door to the strong likelihood that the hundreds of thousands of New Yorkers who receive summonses for an-estable offenses annualy would be subject to invasive searches. According to the data from the Office for Court Administration recently published by the New York Daily News, 6,619,841 summonses were issued in New 12 York City alone between 2001and2013.1 This is staggering number, and it is noteworthy that the number of people arrested in New York City pales in comparison to those issued summonses. In the last ten years, 3,211,982 people have been arrested for misdemeanors and felonies in New York City. 2 The charges on which New Yorkers receive summonses are typicaly quality-of-life violations. For example, since 2001, 1,566,791 summonses have been issued for public consumption of alcohol, 269 ,308 for operating a bicycle on a sidewalk, and 28,756 for spiting.3 And, despite the trivial nature of the charges for which summonses are commonly issued, they typicaly make the offender subject to arrest. See N.Y. Crim. Proc. L. § 140.10(1 )(a) (alowing arrest by a police officer for "[a]ny offense when he or she has reasonable cause to believe that such person has commited such offense in his or her presence")~ People v. Taylor, 294 A.D.2d 825 (App. Div. 2002) (upholding arrest for violation of an open container ordinance); People v. Lewis, 50 A.D.3d 595 (App. Div. 2008) 1Sarah Ryley, et al., Daily News analysis finds racial disparities in summons for minor violations in 'broken windows' policing, New York Daily News (Aug. 4, 2014, 2:00 AM), available at htp:/www.nydailynews.com/new-york/summons-broken-windows-racial-disparity-garner- article-l .1890567 [hereinafter "Daily News Analysis"]. 2 New York State Division of Criminal Justice Services, Adult Arrests: 2004-2013, New York City, Computerized Criminal History system (Feb. 25, 2014), available at htp:/www.criminalj ustice.ny. gov I crimnet/ oj sa/arrests/N ew Y orkState. pdf. 3 Daily News Analysis. 13 (upholding arrest for violation of two sections of the New York City Arts and Cultural Affairs Law, both non-criminal offenses). The logic of the Appelate Division's decision in this case commands that when a police officer issues a summons-and by definition has probable cause to believe that an offense has been commited and is therefore entitled to make an arrest4-he is also entitled to conduct a ful-blown search of the offender. This result seriously undermines the Fomth Amendment's protections against warrantless searches. Indeed, "serious intrusion[s] upon the sanctity of the person," Terry, 392 U.S. at 19, would become the n01m, violating the principle that "[b ]efore [a police officer] places a hand on the person of a citizen in search of anything, he must have constitutionaly adequate, reasonable grounds for doing so," Sibron, 392 U.S. at 64. As this Court has previously recognized, people who are accused of only minor violations should not be subjected to such invasive treatment. See Marsh, 20 N.Y.3d at 101 (holding as a mater of state constitutional law that individuals arrested for traffic offenses should not be searched incident to arrest, and noting "there is something incongruous about treating traffic offenders as noncriminals, on the one hand, and subjecting them, on the other, to the 4Although the statute authorizing warrantless arrests states that an arrest is permissible upon "reasonable cause," this Court has interpreted the statute to require probable cause. See People v. Johnson, 66 N. Y.2d 398, 402 (1985) ("A police officer may arrest a person without a warrant when lhe has probable cause to believe that such person has commited a crime.") 14 indignity of a search for weapons"). Yet the Appelate Division's ruling invites that result. This invitation is particularly worrisome in New York City, where the NYPD's stop-and-frisk practices suggest litle respect for the Fourth Amendment rights of New Yorkers. lo recent years, the NYPD has conducted hundreds of thousands of unlawful frisks. Between 2003 and 2013, data produced by the NYPD incticate that officers conducted frisks in 51.9 percent of al stops, resulting in an incredible 2,585,945 frisks.5 During the same period, officers conducted ful searclhes of the person stopped in 417,018 stops. 6 And although the Supreme Court has emphasized that "[t]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous," Arizona v. Johnson, 555 U.S. 323, 326-27 (2009), weapons were recovered in less than 2 percent of stops in which frisks were conducted. These data suggest that frisks were often conducted without reason to believe that the subject was armed and dangerous. The problem was aptly summarized by a federal judge last year, who described the practice of unconstitutional frisks by the NYPD as "pervasive[]," and evidenced by "the uncontested fact that over half of al people stopped are frisked, 5 Sara LaPlante, et al., Stop-and-Frisk During the Bloomberg Administration (2002-2013), New York Civil Liberties Union (Aug. 2014), available at htp:/www.nyclu.org/files/publications/08 l 820 l 4_ Stop-and-Frisk_ Briefer_ 2002-2013 _final.pdf, 7. 15 while only 1.5% of frisks reveal a weapon, as wel as the institutional evidence of inaccurate training regarding when to frisk, testimony by officers who did not know the constitutional standard for a frisk, and anecdotal evidence of routine unconstitutional frisks in this case." Floyd v. City of New York, 959 F. Supp. 2d 540, 660 (S.D.N.Y. 2013). In sum, NYPD officers have al too often engaged in unconstitutional searches in recent years. Although the chief question presented in this case does not concern the legal standards that apply to stop-and-frisk practices, the NYPD's record suggests that if this Court were to affirm the Appelate Division's ruling, New Yorkers' Fourth Amendment rights would be in great peril. It is easy to imagine that officers wil routinely stop people, conduct frisks or even more invasive searches, and if the search is fiuitful, identify some basis for probable cause that preceded the search- even when they had no intention of conducting an arrest at the time of the search. Unjustified exploratory searches are the chief evil that the Fourth Amendment is designed to prevent. Indeed, it is for this very reason that the Supreme Court recently limited the scope of automobile searches after an arest: A rule that gives police the power to conduct such a search whenever an individual is caught commiting a traffic offense, when there is no basis for believing evidence of the ofense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central conce1n underlying the Fourth Amendment-the concen1 about giving police officers unbridled discretion to rummage at wil among a person's private effects. 16 Gant, 556 U.S. at 345 (emphasis added). Affirmance of the Appelate Division's decision would effectively ratify such conduct. Given the substantial volume of police contact that many New Yorkers experience, that resu 1t would invite the infringement of the ights of thousands of New Yorkers. CONCLUSION For the foregoing reasons, the NYCLU urges this Court reverse the AppeHate Division. Dated: Septen1ber 5, 2014 New York, N .Y. Respectfuly submited, I ----- ALEXIS KARTERON CHRISTOPHER DUNN PHILIP DESGRANGES New York Civil Libe1ies Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 Counsel for Amicus Curiae Nev . ;York Civil Liberties Union 17