Issue: Did the police have a founded suspicion of criminal activity to justify a canine sniff search of a car lawfully stopped for a traffic violation? 

Held: As the four-judge majority found record support for the mixed law-and-fact determination that a founded suspicion of criminal activity existed, “including the officers’ observations prior to and during the stop,” the issue was beyond further review. The defendant’s remaining contentions were unpreserved. 

Judge Wilson wrote a long dissent, in which Judges Fahey and Rivera, joined.  One wonders why this case remained on SSM given the divisions on the Court over the issues the case presented. 

Reviewing the facts that the majority did not recite, Judge Wilson first called the car stop out for the obvious pretext stop it was – after seeing the defendant, whom they generally knew as a drug seller, hug and give high-fives outside a convenience store they claimed to know as the cite of criminal activity, the police “waited 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.”  Bingo. 

As to the specifics of the case and the so-called observations that provided record support for the founded suspicion, Judge Wilson disagreed that they did so. A handshake or hug does not support “any” suspicion of criminality, he said.  If it did, he further noted, such a rule would unfairly impact communities of color and low-income communities because shaking hands outside Saks “will likely not result in your detention.”

The Appellate Division had cited inconsistent answers that the defendant gave when stopped.  Judge Wilson disputed that, pointing out there was nothing in the record showing his answers to be untrue or inconsistent.   Any discrepancies in his answers didn’t give rise to a founded suspicion of criminal activity being afoot.  The Appellate Division also cited the defendant’s “slow roll” of the car and “furtive movements.”  Judge Wilson pointed out that since the defendant consented to a limited search of the car after he was stopped and nothing was found, the suspicions the police had on the basis of the slow roll and the so-called furtive movements were unfounded.   

Judge Wilson would also have reached as sufficiently preserved the question of whether the state standard of founded suspicion is preempted by the higher standard of reasonable suspicion required by the federal constitution under Rodriguez v. United States, 575 U.S. 348 (2015). Rodriguez 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 (id. at 352). 

Judge Wilson also addressed the racism inherent in the stop and search: Because none of the facts cited could have created a founded suspicion, “[i]t must have been based on something else—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.”   

CAL Observes: Judge Wilson’s dissent again exposes the conservative majority’s disinclination to decide important issues affecting our clients and communities of color.  In calling out the systematic problem of pretext stops, he signaled (we hope) his receptiveness to entertaining a challenge to People v. Robinson, 97 N.Y.2d 341 (2001).  We urge practitioners to aggressively challenge Robinson and pretext stops (see our Issues to Develop, July 2021, available on our website, for ideas). 

Judge Wilson also set out a road map for challenging as unconstitutional the application of the Debour Level 2 standard of founded suspicion to canine sniff searches where the car stop was prolonged to conduct the search.