The opinion of the court was delivered by: I. LEO GLASSER
Robinson, 414 U.S. at 238 n.2 (Powell, J., concurring) (emphasis added). Second, in the Robinson majority opinion, Justice Rehnquist stated:
Id. at 221 n.1 (emphasis added).
Other circuits to address the pretext doctrine have continued to reiterate a preference for an "objective" test but have not expressed which of the above two standards they prefer. See, e.g., United States v. Burney, 1991 U.S. App. LEXIS 15107,*7-8 (4th Cir. 1991) (reciting both tests and holding that "evidence introduced at the suppression hearing would support the validity of the stop under either of these two approaches."); United States v. Mitchell, 293 U.S. App. D.C. 24, 951 F.2d 1291, 1295 (D.C. Cir.) ("Here, the objective circumstances clearly justified stopping the car. The trial court credited [the officer's] testimony that the car was speeding and had made a turn without a signal . . . ."), cert. denied, 112 S. Ct. 1976 (1991); United States v. Lillard, 929 F.2d 500 (9th Cir. 1991) (rejecting argument that search was pretextual because after stopping van for speeding, officers smelled "a distinct odor they knew was associated with making methamphetamine" which "coupled with the earlier suspicions that Lillard was making the drug supports the conclusion that there was probable cause to arrest."); United States v. Hawkins, 811 F.2d 210, 213 (3d Cir.) (concluding that officers had reasonable suspicion to conduct investigative stop and holding that officers' proffer of pretext did not invalidate otherwise constitutional search), cert. denied, 484 U.S. 833, 98 L. Ed. 2d 69, 108 S. Ct. 110 (1987).
C. Pretext in the Second Circuit
The Second Circuit has not yet spoken directly on the proper standard for pretextual searches, and reference to cases from this circuit indicates that the test for pretext remains very much unresolved. First, in United States v. Millio, 588 F. Supp. 45 (W.D.N.Y. 1984), the defendant moved to suppress a gun seized from his car by officers who stopped him for driving while intoxicated. After administering a sobriety test, which defendant passed, the officers ran a search on his license and registration and found a "scofflaw" -- an indication that the vehicle had three or more unpaid parking tickets. Id. at 47. The government agreed that the officer's original stop was pretextual -- effected solely to search the car for a weapon -- but argued that the scofflaw was a distinct intervening event which gave rise to discovery of the weapon. Id. at 48. Although the court concluded that the objective facts known to the police were sufficient to justify the original Terry stop, it nonetheless suppressed the pistol "because the seizure of the weapon was the direct result of the illegal pretextual detention of the defendant." Id. at 49.
A second case from this circuit in which the issue of pretextual searches arose is United States v. Piccirillo, 92-CR-929 (December 8, 1992). In the transcript of a suppression hearing from that case, Judge Amon rejected the argument that a traffic stop of a suspected participant in the Colombo Family "war" was pretextual and therefore invalid. Looking "to objective circumstances in determining the legitimacy of the police officers rather than the officers' state of mind," Judge Amon found that defendant cut off other cars, wove in and out of lanes without signalling, and made turns without signalling. (Piccirillo transcript at 8-9) This dangerous behavior, she concluded, provided the officers with reasonable suspicion to conduct an investigative stop of the vehicle.
Third, in United States v. Nersesian, 824 F.2d 1294, 1315-17 (2d Cir.), cert. denied, 484 U.S. 957 (1987), the Second Circuit addressed a pretext argument made by Elias Abdouch, one of many defendants convicted of participating in a narcotics conspiracy. Abdouch claimed that a DEA agent's continuation of an initially valid Terry stop was unlawful because it was based on a pretext unrelated to narcotics. Id. at 1316. Citing Terry, Hawkins, and the Supreme Court caselaw referred to above, the Nersesian court rejected any inquiry into the officers' subjective intent and explained:
In our view, a valid basis for a detention and search which exists in the first place, is not rendered invalid by the fact that police resort to a pretext for one purpose or another to continue that detention and search. While in most instances it would seem appropriate for the police to be forthright and honest in expressing the basis upon which they are relying in conducting an investigatory stop and search, the justification given by the police is not essential in determining whether the apprehension is constitutionally justified. The pivotal factor in determining whether a search violates the fourth amendment is whether there exists at the outset a valid basis for that search. In this instance, it is not disputed that such a valid basis existed. Therefore, we hold that subsequent intervention by another law enforcement officer, relying upon a pretextual basis to carry out a search, does not alter the validity of the initial detention or the sequence of events following in its wake.
Id. at 1316. Contrary to the government's argument, Nersesian does not dictate the result in Scopo's case, for this court must determine whether, in fact, the basis for the search was valid in the first place.
Fourth and finally, the Second Circuit opinion in United States v. Caming, 968 F.2d 232 (2d Cir. 1992), cert. denied, 121 L. Ed. 2d 339, 113 S. Ct. 416 (1992), indicates the court's most recent voice on the pretext doctrine. The defendant in Caming, charged with structuring currency transactions to avoid currency transaction reports, was arrested in his automobile while leaving the parking lot of his athletic club. An initial and then an inventory search of that vehicle disclosed various financial documents and records which the government sought to introduce into evidence at trial. Defendant moved to suppress this evidence, arguing that the officers who arrested him pursuant to a valid warrant purposely delayed that arrest to enable them to search his automobile. Id. at 234-35. The district court denied this motion, defendant was convicted, and he appealed.
Agreeing with the district court's factual finding that defendant had not "shown that his arrest was a pretext to enable the agents to search his car," id. at 236, the Second Circuit quoted the following language from the lower court's opinion:
"When a police officer has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle. . . . Where, however, it appears that the search and not the arrest was the real purpose in effecting a warrantless search of the premises,' and that the arrest was a pretext for or at most an incident of the search,' the search is Unreasonable under the Fourth Amendment." United States v. Sohnen, 298 F. Supp. 51, 56 (E.D.N.Y. 1969) (quoting Henderson v. United States, 12 F.2d 528, 531 (4th Cir. 1926); see United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877 (1932); McKnight v. United States, 87 U.S. App. D.C. 151, 183 F.2d 977, 978 (D.C. Cir. 1950).
Id. at 235 (quoting United States v. Caming, 756 F. Supp. 121, 123-24 (S.D.N.Y. 1991)). The Second Circuit agreed with the district court that defendant's arrest was not unreasonably delayed based primarily on two observations: first, that the officers who executed Caming's arrest took reasonable precautions to preserve their own safety and to avoid arousing the suspicions of other suspects still under investigation; second, if the officers were conducting a pretextual search, they probably would have arrested defendant in his apartment where evidence of this crime was more likely to be located. Caming, 968 F.2d at 236. While the language from the lower court's opinion was not essential to the circuit court's holding, quotation of that language suggests that the pretext doctrine retains vitality in this circuit. See United States v. Giampa, 1992 U.S. Dist. LEXIS 14266, *8 (S.D.N.Y. 1992) (citing Caming for proposition that where "it appears that the search and not the arrest was the real purpose in effecting a warrantless search of the premises, and that the arrest was a pretext for at most an incident of the search, the search is unreasonable under the Fourth Amendment."); United States v. Cook, 1991 U.S. Dist. LEXIS 12891, *15-16 (S.D.N.Y. 1991) (describing pretextual search doctrine and concluding, based on officer's testimony, that stop for erratically changing lanes was "a legitimate and nominally intrusive traffic stop.").
D. The Arrest and Search of Scopo's Car
As the discussion above makes abundantly obvious, pretext doctrine remains a matter for debate both in this circuit and nationwide. While inquiry into an officer's subjective motivation and intent clearly is not appropriate, the precise contours of the objective test that this court must apply are not defined. Accordingly, this court must choose the test for pretextual searches and seizures that it finds most faithful to the spirit and language of the fourth amendment. After much deliberation, it adopts the first test described above, specifically "whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." As the Smith court pointed out, this formulation mirrors the language and intent of Terry:
"And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?"
Smith, 799 F.2d at 710 (quoting Terry, 392 U.S. at 22). Clearly, courts are capable of engaging in this type of inquiry; indeed, the fourth amendment, with its explicit concern for reasonableness, would seem to require it.
More importantly, this test "properly preserves the Supreme Court's requirement of an objective inquiry into Fourth Amendment activity . . . and provides meaningful judicial review of discretionary police action." Guzman, 864 F.2d at 1517. Recognizing that officers often rely on their intuition to investigate criminal activity, this court nevertheless finds constitutionally repugnant the result to which adoption of the "authorization" test leads, as Trigg makes obvious: that test immunizes from judicial scrutiny any arbitrary and unreasonable use by police officers of minor violations. As the Guzman court explained:
An examination of a police officer's subjective intent in individual cases would unwisely involve the courts in unproductive inquiries. . . . Conversely, an objective test that asks no more than whether some set of facts might justify a given stop would permit arbitrary intrusions in situations such as traffic stops. Under such a test, thousands of everyday citizens who violate minor traffic regulations would be subject to unfettered police discretion as to whom to stop. To paraphrase one commentator, in the absence of standardized police procedures that limit discretion, whether we are simply allowed to continue on our way with a stern look, or instead are stopped and subjected to lengthy and intrusive interrogation when we forget to wear our seat belts, turns on no more than "the state of the digestion of any officer who stops us or, more likely, upon our obsequiousness, the price of our automobiles, the formality of our dress, the shortness of our hair or the color of our skin."
Guzman, 864 F.2d at 1516 (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 416 (1974)).
Applying the "usual police practices" standard in the present case, this court finds that a reasonable officer would not have arrested Scopo for failing to signal in the absence of an invalid purpose to search for weapons. Unlike the situation facing Judge Amon in Piccirillo, defendant's failure to signal posed no threat to the public safety: the violation occurred at nine in the evening, no other vehicles were on the street, and the cars were not speeding. Tr. at 64. In fact, Flatlands Avenue was so empty that even the officers did not remember whether they had signalled. Tr. at 72. Furthermore, despite the empty streets, the officers waited over two miles before deciding to stop the vehicles; however, Detective Higgins admitted that it would be "routine for a uniformed officer to pull a vehicle over immediately upon citing or seeing a VTL violation." Tr. at 69-70. Finally, earlier that same evening, the detectives who were authorized to enforce the traffic laws, failed to issue a summons for a traffic violation involving the same vehicles. Tr. at 30, 44-45, 58-59.
Other facts elicited both at the hearing and in related cases support the conclusion that the search of Scopo's car was pretextual. In his testimony, Detective Higgins made clear that the primary purpose of the Colombo Strike Force was to engage in "active, aggressive law enforcement" in order to quell the violence of the Colombo "shooting war." Tr. at 27, 43-44, 57. A part of this mission was to "take guns out of circulation whenever possible." Tr. at 44, 57. Team members knew that traffic stops of other suspected Colombo Family members during the "shooting war" had resulted in the seizures of illegal weapons. Tr. at 86-87; see also People v. Edward DeMarco, Misc.2d , NYLJ, June 15, 1992 (Kings Co. Sup. Ct., Juviler, J.) (detectives assigned to Colombo Strike Force used minor traffic infraction as illegal pretext to investigate driver and automobile, leading to seizure of gun).
Information presented to this court in a separate action involving the very same "shooting war" between factions of the Colombo family, United States v. Brady et al, CR-92-0792, corroborates the pretextual nature of the search in this case. At side bar, the Assistant United States Attorney responsible for the Brady prosecution made the following statement:
We discussed today . . . the FBI's strategy of alerting people when they were targets or hits. There was a strategy in place of a massive number of car stops. If there were traffic infractions they would stop the car, they would search to see if they could develop probable cause. There was a strategy of searching social clubs, all to get the weapons off the street. That was their goal.
Trial Transcript at 1925 (emphasis added).
In sum, based on testimony elicited at the suppression hearing coupled with the information presented above, this court finds that detectives on the Colombo Strike Force used Scopo's traffic violation as a pretext for their warrantless search of his automobile for weapons. While it is well established that an officer who has made a lawful custodial arrest of the occupant of an automobile may search the vehicle's passenger compartment incident to that arrest, where a court concludes that the search and not the arrest was the real purpose of the intrusion -- "'and that the arrest was a pretext for or at most an incident of the search'" -- the search is unreasonable under the Fourth Amendment. Caming, 968 F.2d at 235 (quoting Henderson v. United States, 12 F.2d 528, 531 (4th Cir. 1926)); see also United States v. Mota, 982 F.2d 1384, 1993 U.S. App. LEXIS 165, *3 (9th Cir. 1993) ("'An arrest may not be used as a pretext to search for evidence without a search warrant where one would ordinarily be required under the Fourth Amendment.'") (quoting Williams v. United States, 418 F.2d 159, 161 (9th Cir. 1969), aff'd, 401 U.S. 646, 28 L. Ed. 2d 388, 91 S. Ct. 1148 (1971)). The gun seized as a result of this unconstitutional search must be suppressed. Adopting the language of Judge Timbers in a recent civil forfeiture case, "while we recognize the formidable task faced by the government in its war on [organized crime], we decline to condone abuse of [the fourth amendment] as a means to winning that war." United States v. $ 31,990 in United States Currency, 982 F.2d 851, 1993 U.S. App. LEXIS 230, *16 (2d Cir. 1993).
For all the reasons stated above, this court concludes that the search of Scopo's car on January 17, 1992 was pretextual and therefore violated the fourth amendment's prohibition against unreasonable searches and seizures. Accordingly, as the contested physical and statement evidence were fruits of this unconstitutional behavior, defendant's motion to suppress is hereby granted.
Dated: Brooklyn, New York
February 19th, 1993
I. LEO GLASSER, U.S.D.J.