Pubdate: Thu, 18 Nov 1999
Source: New York Law Journal (NY)
Copyright: 1999 NLP IP Company
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Author: John Caher
Note: Article is on-line at:
http://www.lawnewsnetwork.com/stories/A9827-1999Nov17.html

POLICE STOP FOR BIKE INFRACTION LEADS TO VALID DRUG ARREST

TROY, N.Y. - Rejecting a defendant's claim of a pretextual stop in violation
of the state constitution, an upstate judge has refused to suppress evidence
seized from a man initially stopped because he did not have a bell on his
bicycle, and subsequently charged with a narcotics felony after a police
officer recognized the man as a suspected drug trafficker.

Rensselaer County Judge Patrick J. McGrath, in The People of the State of
New York v. Claude E. Varn, Indictment No. 98-1176, applied the primary
motivation test which New York's courts have continued to rely upon,
notwithstanding the U.S. Supreme Court's holding in Whren v. United States,
517 U.S. 806 (1996).

Judge McGrath said the "stop of the defendant was clearly justified and the
mere fact that the officer subsequent to the stop was aware that defendant
was suspected of drug trafficking did not affect the legality of the
officer's conduct."

The case, which generated substantial interest from defense advocates and
civil libertarians upstate, stems from a recent Troy Police Department
policy of targeting violators of bicycle safety laws with the goal of
stopping more serious crimes committed by persons utilizing bicycles. That
policy was implemented in 1995 by Captain Robert Cipperly.

Captain Cipperly, while serving as the midnight platoon commander for the
Troy Police Department, observed that a substantial amount of street crime
- -- including purse snatchings, robberies and assaults -- in the central
business district of this small city just north of Albany, was facilitated
by the use of bicycles.

SAFETY LAWS In late 1995, he ordered all of the officers on the midnight
shift to begin enforcing existing bicycle safety laws under both the Vehicle
and Traffic Law and the Troy City Code. Eventually, the aggressive
enforcement of those laws was extended to all shifts and expanded to the
high-crime "combat zone," which generally runs several miles along the
Hudson River. The policy was not in effect in other areas of the city.

On Sept. 27, 1998, Officer Richard Schoonmaker observed the defendant
operating a bicycle on the wrong side of the road and without the audible
warning device required under state law and local ordinance. Officer
Schoonmaker drove alongside Mr. Varn and, after repeated requests, the
bicyclist complied with the officer's request to pull over and stop.

Judge McGrath found that it was the officer's intention to issue Mr. Varn a
ticket for failing to have a bell and, if the bicyclist had proper
identification, release him at the scene.

Thereafter, Officer Schoonmaker recognized Mr. Varn as a known drug dealer
and possible murder suspect and asked the man to get off the bike. Mr. Varn
refused, and when Officer Schoonmaker placed his hands on the handlebars,
slapped the officer's hands away. The officer informed Mr. Varn that he was
under arrest and grabbed the suspect around the waist.

After a struggle, Mr. Varn was taken into custody. A search yielded drugs
and Mr. Varn was ultimately charged with harassment, resisting arrest and
felony drug possession.

MOVE TO SUPPRESS The Rensselaer County Public Defender, Jerome K. Frost, and
Gregory D. Cholakis of counsel, moved to suppress based on the argument that
the stop of his client was pretextual, and therefore in violation of the New
York State Constitution's bar against unreasonable searches and seizures.

Mr. Cholakis noted that New York courts have consistently held that police
may not exploit a traffic violation as a "mere pretext to stop a citizen,"
regardless of the Supreme Court's holding in Whren.

In Whren, the Supreme Court, in a unanimous 1996 opinion written by Justice
Antonin Scalia, held that "subjective intentions play no role in ordinary
probable cause Fourth Amendment analysis." The Court interpreted the Fourth
Amendment standard of "reasonableness" as being objective, and therefore
precluding evaluation of a police officer's subjective motivation.

New York courts have held, both pre- and post-Whren, that a traffic
violation must be the primary motivation for a stop predicated on those
grounds, and consequently a pretextual traffic stop for an investigation
into unrelated criminal activity may not be the primary motivation. Mr.
Cholakis argued that since the stated purpose of the police department's
policy of vigorously enforcing bicycle safety laws
was to deter criminal activity, it was inherently pretextual.

But Judge McGrath found the policy a "proper exercise of the state's
interest in protecting the public from criminal activity," and applying a
balancing test, held that the "state interest of making the streets safe for
its citizens outweighs the intrusion to the individual."

Further, Judge McGrath held that since it was Officer Schoonmaker's usual
practice to stop all bicyclists lacking proper equipment, "there is
sufficient evidentiary basis for the conclusion that the bicycle violation
provided the primary motivation for the stop." Crucial to the judge's ruling
was a finding that the officer had not recognized Mr. Varn as a drug dealer
until after he had pulled him over for the traffic violation.

Mr. Cholakis said he has not yet decided whether to appeal. The prosecution
was represented by a special prosecutor, Columbia County District Attorney
Beth G. Cozzolino, Timothy J. Berry of counsel.
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