Any criminal practitioner in recent years has seen a proliferation of the latest “catch all” predicate police allege for making a car stop: the defendant failed to signal.
It is a clever predicate in that, unlike the allegation of mechanical issues such as a broken tail light, it is nearly impossible to disprove. Moreover, in light of the current state of the law, once the police have a “valid” reason to pull a defendant over it doesn’t matter if that is the real reason they pulled him over. That is, the “pretextual stop” argument has been largely undermined in the wake of Whren v. United States, 517 US 806 (1996), holding in effect that the police officer’s true motive for the car stop is irrelevant so long as he had a valid reason for the stop. This reason may not need to be supported by probable cause in New York, where cases suggest “reasonable suspicion” is sufficient. People v. Robinson, 97 NY2d 341 (2001).
So, if your client has been pulled over for “failure to signal” what are your tools to fight the constitutionality of the stop? First of all, chances are that he was never issued a ticket, which bears on the credibility of the police officers. More importantly, and the part that the officers and the DA may fail to focus upon, is that the police must provide testimony which supports the actual statutory infraction. VTL Section 1163 (turning movements and required signals) states in relevant part that no driver shall: “turn a vehicle from a direct course or move left or right upon a roadway unless and until such movement can be made with reasonable safety. No person shall turn any vehicle without giving the proper signal”. In a recent case, People v. Rice, 810 NYS2d 306 (2006), the Court determined, based upon the above and upon a review of the legislative history, that while a turn may always require a signal, a lane change does not if it can be made safely. “There was no desire [of the legislature] to add . . . a per se requirement of signaling lane changes as well”. As such, the law does not “require signaling when a lane change can be made in complete safety without such a signal”.
What is the practical affect of this ruling? In most hearings the police officer will simply state that the defendant was observed making a lane change without signaling. The DA will ordinarily fail to elicit the nature of the roadway, the traffic conditions at the time and how, if at all, the purported lane change endangered other drivers. IF this latter evidence is not proffered on direct testimony, it is the wise practitioner that does not address it on cross examination lest the officer “fill in the gaps”. With no evidence that a unspecified “lane change” was made unsafely, any subsequent car stop violates the Fourth Amendment and the New York Constitution and any contraband recovered thereafter should be suppressed as fruit of the poisonous tree.