What is the correct legal standard under which a police officer may stop a motor vehicle in New York state for a traffic violation? While that is a straightforward question, the answer remains elusive based on several decisions from the New York Court of Appeals and the U.S. Supreme Court.

Forty-three years ago, the New York Court of Appeals held, in People v. Ingle, 36 N.Y.2d 413, that a police officer may not stop an automobile for a traffic offense unless the officer reasonably suspects a violation of the Vehicle and Traffic Law.

That quantum of evidence remained the standard for automobile traffic stops until the New York Court of Appeals addressed the issue of pretext automobile stops in People v. Robinson, 97 N.Y.2d 341. The court, as a matter of state constitutional law, adopted Whren v. United States, 517 U.S. 806 (1996), in which the U.S. Supreme Court rejected the argument that pretext stops were unlawful. In Robinson, the court held that a pretext stop is valid as long as a police officer has probable cause to believe that there was a violation of the Vehicle and Traffic Law.

While Ingle was seemingly contradicted by Robinson, the court did not explain the contradiction or even refer to Ingle. In a later lower court decision, People v. Prado, 2 Misc.3d 1002A, the Hon. Marcy Kahn held that if the Court of Appeals had meant to create a new rule for all traffic stops (both non-pretext and pretext), the court would have announced such a decision in Robinson. It did not do so.

The apparent inconsistency between Ingle and Robinson has created confusion among courts: Is the probable cause standard limited to cases in which the facts are consistent with a pretext stop or does that standard apply to all traffic stops? In appellate decisions following Robinson, numerous courts utilized the probable cause standard even in non-pretext cases, while others continued to apply a reasonable suspicion standard.

More recently, the confusion has deepened. In a recent continuing legal education course on DWI issues sponsored by the New York State Bar Association, the instructor told the audience that Ingle, “wasn't good law anymore.” One commentator has concluded that “Ingle … and reasonable suspicion as the basis for the stop of an automobile are dead.” Fiandach, 10 New York Criminal Law Newsletter at 15 (2012).

The Court of Appeals, has in recent years, cited Ingle and Robinson at various times when discussing traffic stops without distinguishing those cases. People v. Bushey, 29 N.Y.3d 158; People v. Guthrie, 25 N.Y.3d 130. Finally, two years ago, the Appellate Division, Fourth Department held that the correct legal standard for assessing all traffic stops was probable cause and not reasonable suspicion. Matter of Deveines, 136 A.D.3d 1383. The court concluded that Ingle had been abrogated by Robinson—a conclusion that the Court of Appeals has itself, never reached.

Nonetheless, suppression courts throughout the state are now required to follow the precedent set by the Fourth Department until the Court of Appeals or other departments hold otherwise. Mountain View Coach Lines v. Storm, 102 A.D.2d 663.

Why is it important to know whether probable cause is the correct standard as opposed to reasonable suspicion? Initially, it seems obvious that there should be clarity among courts throughout the state with respect to legal standards that must be applied at suppression hearings. As the U.S. Supreme Court has stated, in interpreting the Fourth Amendment, courts must utilize “… standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made.” Atwater v. City of Lago Vista, 532 U.S. 318, 347.

Second, the difference between the two standards is significant enough to affect the outcome of a ruling by a suppression court. There are certain traffic cases in which a police officer must give some deliberation before deciding on whether to pull a motorist over. For example, under VTL 375(30) it is unlawful for a driver to place or hang an object, e.g. air freshener, in a manner that prevents the driver from having a clear and full view of the road and condition of traffic. An officer might have reasonable suspicion to believe that the statute has been violated but insufficient facts to establish probable cause.

Similarly, a driver may not operate a motor vehicle with excessively tinted windows, i.e., a “light transmittance of less than seventy percent.” VTL 375 (12-a(b)). Clearly, that definition requires a police officer to make a visual assessment that may be based upon only reasonable suspicion rather than probable cause.

Recently, in a pretext stop case, the Appellate Division, First Department, held that a police officer did not have probable cause to believe that a motorist engaged in reckless driving. The facts however, might have satisfied a lesser standard of only reasonable suspicion. People v. Knupp, 2018 N.Y. Slip Op. 01649.

In attempting to determine the correct legal standard, one could look for guidance in decisions from the U.S. Supreme Court. As mentioned above, the Supreme Court adopted a probable cause standard in pretext stop cases. Whren, 517 U.S. 806. After Whren, however, the Supreme Court held that reasonable suspicion was the appropriate standard for a traffic stop; in that case the pretext argument was not raised. Heien v. North Carolina, 135 S. Ct. 530.

At least one other state has experienced similar confusion with respect to the correct standard in traffic stops. In Pennsylvania, despite a statutory change that imposed a standard of reasonable suspicion, Pennsylvania courts continue to debate whether probable cause is the appropriate standard. See “Traffic Stops, Reasonable Suspicion, and the Commonwealth of Pennsylvania: A State Constitutional Analysis,” 69 U. Pitt. Rev. 331. That state's highest court has yet to rule on the issue.

One could argue that Robinson and Ingle are not, in fact, inconsistent and that Robinson (and Whren) were limited to pretext cases; indeed, there should be a higher standard of proof in a pretext stop case where the defendant challenges the motivation of the police officer making the stop. Until such time, however, when the Court of Appeals decides the fate of Ingle, and whether reasonable suspicion remains a viable standard in traffic stop cases, judges and practitioners will be left with a degree of uncertainty that does not serve well the administration of justice. One is reminded of Justice Lewis Powell's comment in a similar context: “I recognize … that the law of search and seizure is intolerably confusing. The Court apparently cannot agree even on what it has held previously, let alone on how these cases should be decided.” Robbins v. California, 453 U.S. 420, 430.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of ​'New York Search and Seizure' (Lexis/Nexis 2017); he is a former ​State Supreme Court Judge.