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Thu, 06 Dec 2018

New York Court Tells CBP Agent He's Not Allowed To Pretend He's A Traffic Cop

Furnished content.

In a short decision, the Supreme Court of the State of New York reminds federal agents what they can and can't do while operating under the color of law. In this case (via The Newspaper) a CBP officer, who was supposed to be keeping an eye on the ultra-dangerous Canadians, decided he wanted to be a traffic cop instead.

Spotting a driver "engaging in dangerous maneuvers," the CBP agent (who is unnamed in the decision) decided to pursue the vehicle. He called the Buffalo (New York) Police Department to relay his observations. Deciding it would take too long for Buffalo PD officers to respond -- and supposedly concerned about the danger posed by the driver -- the CBP agent activated the lights on his vehicle and pulled the driver over.

The CBP agent did not approach the driver until a Buffalo police officer arrived -- not out of concern for the Constitution, but rather for his own personal safety. The CBP agent left after more police officers arrived. A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm.

The driver moved to suppress the evidence, arguing the stop itself was unlawful. The court found the CBP agent had the "powers of a peace officer," a fact that's relevant to its final determination. As such, the CBP agent can do certain things related to customs/border protection, but pulling drivers over for traffic violations isn't one of them. From the decision [PDF]:

In concluding that the agent unlawfully stopped the vehicle, the court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment.

The state argued the CBP agent was not acting as a peace officer when he performed the stop. It claimed the agent was nothing more than a concerned citizen performing an ultra-rare "citizen's arrest." LOL, says the court. Even if the court had found that a CBP agent is not a peace officer, the agent's actions undercut any arguments construing this as a citizen's arrest.

Even assuming, arguendo, that the agent, as a marine interdiction agent with the U.S. Customs and Border Protection Air and Marine Operations and a deputized task force officer with the Niagara County Sheriff’s Office, is not a peace officer and does not possess the powers thereof [...] we conclude that the court properly determined that the agent did not effect a valid citizen’s arrest.

The agent, while contemporaneously reporting the incident to the police over the telephone and requesting the presence of a police unit, activated red and blue emergency lights in the grille of his truck and a light bar inside the windshield for the purpose of stopping the vehicle. A private person, however, is not authorized to display such emergency lights from his or her private vehicle (see Vehicle and Traffic Law § 375 [41]; People v Hesselink, 76 Misc 2d 418, 418-419 [Town of Brighton Just Ct 1973]). Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense (see Penal Law § 190.25 [3]; see generally People v LaFontaine, 235 AD2d 93, 106 [1st Dept 1997, Tom, J., dissenting], revd on other grounds 92 NY2d 470 [1998]).

Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. Additionally, the agent was not acting merely as a private person when he approached the seized vehicle as backup in cooperation with the officer for safety purposes.

The state also tried to argue that even if the seizure was not lawful under New York law, it was not unconstitutional. The court says "you had us at 'illegal seizure.'"

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures…

And away goes the evidence and the conviction. The lesson is: if you're a federal agent charged with keeping an eye on the border, do that. If you feel the need to act like a concerned citizen, try to do it without turning on your emergency lights and pulling them over. Otherwise, all you've done is waste a bunch of people's time.

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posted at: 12:10am on 06-Dec-2018
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