Rear Window Stickers are Illegal in New York

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Did you know that the college sticker in your car’s rear window is an invitation for any police officer to pull you over? Don’t take our word for it – read the law; you’ll find it (if you look very carefully) in Sub-paragraph ‘(i)’ of Paragraph ‘(b)’ of Subsection ‘(1)’ of Section 375 of New York’s Vehicle and Traffic Law. And the law is very clear: “[t]he use or placing of posters or stickers on . . . rear windows of motor vehicles is . . . prohibited.”

You might want to take a look at Subsection 32 of Section 375 while you’re at it. A sticker in your window can cost you $150 (plus surcharge), 30 days in jail, or both.

While ‘ignorance of the law is no excuse’, though, no one really expects you to read every sentence of every statute ever published. The way a government spreads the word about a law is by enforcing it. So, the real reason you didn’t know you were an outlaw, a scofflaw, and a desperado, is that you never got a ticket for having a sticker in your window. No one ever does get a ticket for it – at least, no one ever gets pulled over for that alone.

The ‘no-sticker’ statute is only used when law enforcement wants to bust your chops over something else.

A driver found this out to his cost in People v. Pealer, decided this year by New York’s Court of Appeals. An anonymous informant supposedly told police that Mr. Pealer’s car was ‘weaving’, but the responding officer didn’t observe any offense – except the sticker. The officer pounced anyway, and Mr. Pealer was ultimately convicted of driving while intoxicated based on evidence uncovered after the stop.

Pealer is really a confrontation clause case (see our entries of May 9th and August 5th of this year). We’ll examine the majority opinion in a later entry, but it’s sometimes worth looking at what a court didn’t bother to write about in a particular case.

With the single exception of Judge Eugene F. Pigott, Jr., the court in Pealer thought that using the presence of a transparent sticker as a reason to pull the defendant over was a ‘no-brainer’. In fact, all the majority opinion has to say on the subject is that “there was no basis for supression.” The only reason we know a sticker was involved in the case is that Judge Pigott brought it up in a partial dissent filed with the majority opinion and Judge Robert S. Smith responded to it in a concurring opinion.

In his concurrence, Judge Smith acknowledges that the only reason the driver was pulled over for a sticker-violation was that he was suspected of drunk driving. The judge notes that

[h]ere, the pretext – a small sticker in a corner of a car’s rear window – is as transparent as the sticker.

However, he points out, it doesn’t matter. Under Whren v. United States, decided by the US Supreme Court in 1996, the subjective motivation of the police officer doesn’t count. All courts look at is whether the officer’s actions were objectively reasonable. Whren‘s rationale was explicitly adopted by New York State’s Court of Appeals in People v. Robinson, decided in 2001.

In Judge Smith’s view (and, apparently, the view of the majority), a court shouldn’t ask, after Whren and Robinson, whether the officer would have pulled you over for the sticker alone. All that matters is whether the officer could have pulled you over for the sticker alone.

For Judge Pigott, this isn’t enough to pass fourth amendment scrutiny. He argues that a pretextual stop for a ‘de minimis’ violation of the ‘no-sticker’ law is not ‘objectively reasonable’. This makes sense, but clearly failed to persuade the rest of the court. The attitude embodied in Whren, in Robinson, and – when it comes right down to it, in Pealer – may really be that expressed by Judge Smith in his concurrence: “the exclusionary rule is a blunt instrument that lets too many guilty people go free.”

While we strongly, if respectfully, disagree with Judge Smith on the importance of the exclusionary rule, his opinion apparently has some fairly lofty support.