Thursday, March 24th, 2016

Summary Order on “Automobile Frisk” and the Prejudice Prong of Ineffective Assistance of Counsel

United States Jonathan Bulluck, No. 13-255-cr (Summary order of March 24, 2016 (Leval, Calabresi, Lynch):

The Court did not a issue a published opinion today. Its one summary order affirmed the denial of an ineffectiveness claim for lack of prejudice, on the ground that the search of a bag (which contained drugs)in a car stop would have been upheld as a valid “automobile frisk.”

This was the second appeal to the same panel, after a prior summary order concluded that counsel’s performance was deficient in failing to argue that the defendant, a cab passenger, had a reasonable expectation of privacy in the plastic bags in the back of the cab. United States v. Bullock, 556 Fed. Appx. 18 (2d Cir. 2014)(Bullock I). The suppression motion had originally been denied on the ground that the passenger had no expectation of privacy in the back of the cab in general, so the district court had never reached the issue of whether probable cause existed to search the bags. In the first appeal, the Court of Appeals had concluded that the defendant did have a reasonable expectation of privacy in the plastic bags in the rear of the cab, and it remanded pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), for a determination of whether counsel’s failure to argue this theory prejudiced the defendant. Bullock I.

On remand, Judge Gardephe concluded that there was no prejudice because he would have held that the search of the plastic bags was justified as an “automobile frisk” under Michigan v. Long, 463 U.S. 1032 (1983).  The district court found that after stopping the cab for failing to signal, the police saw Mr. Bullock, in the rear passenger seat, throw a plastic bag on the floor and attempt to stuff it under the front seat. He then refused to exit the vehicle after three or four requests, and when he finally exited, he “appeared angry.” United States v. Bullock, 2015 WL 4998573 at 11 (S.D.N.Y. Aug. 20, 2015). One officer testified that he feared for his safety and frisked Bullock and searched the bags for that reason. Judge Gardephe rejected the government’s argument that the search was justified under the automobile exception to the warrant because  “the facts here – even considered together – did not provide the officers with probable cause to believe that the rear of the livery cab or the plastic bags on the floor contained contraband or evidence of a crime.” Id. at 8. However, he concluded that the same facts justified the officers’ reasonable suspicion to believe that their safety was in danger by the possibility of a weapon in the plastic bags.

On the second appeal, the panel held that the search of the plastic bags “was justified as part of a valid automobile frisk” under Michigan v. Long, 463 U.S. at 1049, because “the district court reasonably concluded that the officers properly stopped the cab due to a traffic infraction, and that the officer who conducted the search of the back seat of the livery cab had a reasonable fear for his safety based on ‘specific, articulable facts’ that would warrant such fear.” Bullock II at 3. Therefore, the defendant was not prejudiced.

Finally, the Court rejected the argument on appeal that the officers had no right to open the second bag which was inside the first bag–and which contained the drugs– because that argument was not raised below. Is the Court here inviting another ineffectiveness claim?

-Colleen P. Cassidy

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