D. Street Encounters

• Jurisdiction: New York

D. Street Encounters

PRACTICE GUIDE

Street encounters are evaluated under State law using the four levels of People v. De Bour.³⁷⁹ Under federal law, courts follow the three-tiered assessment of Terry v. Ohio.³⁸⁰

1. Approach to Request Information

A police officer may approach a citizen and request information, although there is no indication of criminal activity, provided there is an objective, credible reason for the approach.³⁸¹ However, purely innocent conduct does not support a request for information.³⁸² A citizen has a right to be le ft alone and may refuse to respond to police inquiry.³⁸³

2. Common Law Right to Inquire

The right to inquire "is activated by a founded suspicion that criminal activity is afoot" and permits a somewhat greater intrusion in that a police officer is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure.³⁸⁴ An anonymous tip, standing alone, provides the police with the right to make an inquiry.³⁸⁵ The police interaction with a suspect during a Level II encounter may be a bit more intensive than a Level I interaction so, under certain circumstances, it was proper for the police to request that the suspect walk with them towards a building in which he claimed he had been visiting a friend.³⁸⁶

3. Stop

A stop, even though short of an arrest, is a seizure and requires that the police have reasonable suspicion. To justify such an intrusion, the police officer must indicate specific and articulable facts that reasonably prompt that intrusion.³⁸⁷ Factors used to determine whether there is a reasonable suspicion include furtiveness, nervousness, high crime area, fear and time of day. The combined effect of these factors must be weighed to evaluate the reasonableness of the officer's conduct.³⁸⁸ Case law has expanded the right of the police to confront individuals on the street;³⁸⁹ an officer's command to "stop" does not constitute a seizure.³⁹⁰ It is well-established that flight alone will not supply reasonable suspicion.³⁹¹

The police may detain a suspect and transport the suspect to a nearby location for further investigation if they reasonably suspect that he or she has committed a crime.³⁹²

4. The Frisk

PRACTICE GUIDE

A frisk is not justified by the basis for the stop. There must be a justification that supports the further intrusion.

Where an officer reasonably concludes that a person is committing, has committed or is about to commit a crime, the officer may frisk (pat down) the person if he or she reasonably believes that he or she is in danger of physical injury by virtue of the accused being armed.³⁹³

Absolute certainty is not required to justify the frisk; a reasonable belief is sufficient.³⁹⁴ The frisk is limited to a search for weapons only.³⁹⁵ Under certain circumstances, a frisk can be conducted at gunpoint.³⁹⁶ Also, a frisk is not limited to a pat down of the accused's outer clothing but may include a pat down of any of the accused's personal items within his or her reach that are capable of concealing a weapon.³⁹⁷ Once the officer has determined that the accused is not armed, the frisk must cease.³⁹⁸

Where a police officer searches an accused and seizes a gun in his or her possession based upon the observation of a bulge under the accused's clothing, the court will apply a three-pronged test to determine the reasonableness of the search:

1. Was there proof of a describable object that provided a reasonable basis for the officer's belief that the accused possessed a gun?

2. Was the manner of the approach and the seizure reasonable under the circumstances?

3. Was there evidence of improper motive on the part of the police or that the stop was pretextual?³⁹⁹

5. Arrest

Under DeBour, the fourth level is the arrest. To arrest a citizen, the police need probable cause to believe that the person has committed a crime. Probable cause to believe that a person has committed an offense exists when evidence or information that appears reliable discloses facts or circumstances that are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.⁴⁰⁰

In assessing probable cause, the facts must be judged against an objective standard, i.e., would the facts available to the officer at the moment of the seizure convince a person of reasonable caution to believe that the action taken was appropriate?⁴⁰¹

Probable cause does not require an awareness of the specific crime, but only that some crime has been committed.⁴⁰² It may be established by one citizen accusing another of committing a specific crime.⁴⁰³ It may be found through circumstances that develop over time.⁴⁰⁴

Even where the police have...