8.21 - 3. Conduct Of The Hearing

• Jurisdiction: New York

3. Conduct of the Hearing

The prosecutor commences the hearing by presenting evidence to show the legality of the police conduct.¹⁵⁹² This is generally achieved by presenting evidence to show that the degree to which the police interfered with the defendant’s freedom of movement was supported, at each successive stage, by the required standard.¹⁵⁹³ The levels of intrusion and their corresponding standards of justification are as follows:¹⁵⁹⁴

a. Officer requests information (Who are you? Where are you going? What are you doing here?). Officer must have an objective, credible reason for asking, not necessarily indicative of criminality.

b. Common law right of inquiry (What is in the bag, valise, trunk and so on?). Officer must have a founded suspicion that criminal activity is afoot.

c. Forcible stop and detention. Officer must have a reasonable suspicion that this person is or was involved in a crime. ¹⁵⁹⁵

d. Arrest. Officer must have probable cause to believe that this person has committed a crime. It should be noted that new information obtained at each phase can provide the basis for a further intrusion, including an arrest. ¹⁵⁹⁶

If the...