LET'S BE REASONABLE: WHY NEW YORK COURTS NEED TO EMBRACE THE FEDERAL STANDARD FOR ANALYZING POLICE-CIVILIAN ENCOUNTERS.

• Author: Simchi-Levi, Yuval

1. INTRODUCTION

   New York State courts analyze police-civilian encounters in a stricter manner than the federal courts and many other state courts. (1) This is because of a case decided in 1976 by the New York Court of Appeals, People v. De Bour, (2) which placed certain preconditions on police officers when they interact with civilians. (3) An example of such a precondition is that, in investigating potential criminal activity, a police officer can talk to a civilian only if the officer has an "objective credible reason" for doing so. (4) One former judge on the New York Court of Appeals noted that New York is seemingly the only state that forbids police officers from talking to people in the street unless particular preconditions are satisfied. (5) Recently, a current judge on the Court of Appeals observed, "[T]he analytical framework of De Bour serves, in many ways, to undermine the goals of clarity, public safety, and judicial economy." (6) And the judge who wrote for the majority in De Bour, himself acknowledged that, after four decades, it may be time to reexamine the case in light of "the change in communities, the change in morality, the change in our sense of justice, the change in our need for protections, the change in our need for greater enforcement." (7)

   This Paper argues that these judicial preconditions should be discarded because a standard already exists that many other courts across the United States follow for analyzing encounters between civilians and law enforcement. Specifically, under the Fourth Amendment of the United States Constitution, federal courts and many other state courts have determined that whether police officers acted lawfully hinges on whether the officers' conduct was reasonable--plain and simple. (8)

   New York is long overdue in adopting the reasonableness standard. The De Bour framework breeds needless confusion among hearing courts and litigants, has led to the suppression of evidence in illogical situations, and is conceptually unsound. As one federal judge even suggested, interactions deemed lawful under New York law, may actually be unlawful under the United States Constitution. (9) As this Paper describes, moreover, New York courts have fashioned a judicial escape clause, so that reasonable police conduct that does not fit neatly into De Bour's framework will not always result in the suppression of evidence--a judicial tool that is neither consistently nor foreseeably applied. New York State courts should simplify and improve criminal procedure by analyzing interactions between civilians and law enforcement solely under the Fourth Amendment's reasonableness standard.

2. HISTORY OF FOURTH AMENDMENT ANALYSIS

   Since the country's founding, Americans have struggled to balance the right to be free from "rash and unreasonable interferences" from police with the interest in granting law enforcement appropriate "leeway" to enforce the law and protect the community. (10) The Fourth Amendment, of course, provides that people have a right to be secure from "unreasonable searches and seizures" in their persons, houses, papers and effects." In that regard, the framers of the Constitution opposed the eighteenth century British practice of issuing "writs of assistance" to revenue officers, which allowed the officers, at their discretion, to search suspected places for smuggled goods. (12) The Fourth Amendment was thus meant to protect citizens from unreasonable searches by law enforcement. (13)

   Before 1968, the United States Supreme Court's jurisprudence held that a police officer could not seize a person without probable cause. (14) That changed with the seminal case of Terry v. Ohio, when the Supreme Court ruled that a police officer could indeed seize a person without probable cause under certain circumstances. (15) Terry recognized that the previous strict rule--namely, that any seizure required probable cause was impractical because police-civilian encounters are "rich in diversity," and thus not easily governable by a hard-and-fast rule. (16) Consequently, the Supreme Court held in Terry that where a police officer lacked probable cause to arrest a defendant, but had "reasonable suspicion" to believe that the defendant engaged in, or was about to engage in, a crime, the officer could briefly seize the person, ask questions and pat down the individual to ensure that they were not armed. (17)

3. NEW YORK HISTORY REGARDING POLICE-CIVILIAN ENCOUNTERS

   In 1777, New York adopted its first constitution, which did not include any guarantee for protecting citizens from unreasonable searches and seizures. (18) New York remedied this omission in 1828, when it added a statutory protection modeled after the Fourth Amendment. (19) New York did not alter this statute for 110 years, until 1938, when it became the last of the initial forty-eight states to incorporate, into its state constitution, its own search and seizure provision tracking the language of the Fourth Amendment. (20) Subsequently, in 1964, New York enacted a "stop and frisk" statute that authorized a police officer upon reasonable suspicion to forcibly stop a person in a public place in order to make an inquiry, and to search a person for a weapon in the presence of reasonable suspicion that the stopped person posed a threat to the officer's safety. (21)

   In 1976, the New York Court of Appeals issued its decision in People v. De Bour, which formalized new standards for suppression courts to analyze police-civilian encounters. (22) In doing so, the New York Court of Appeals, like the United States Supreme Court in Terry, documented the complexity of analyzing police-civilian street encounters. (23) The Court of Appeals acknowledged that even though the police must enforce the law, police officers have other duties and responsibilities. (24) The court noted that the police provide a variety of services to the public, such as protecting constitutional rights, maintaining order, controlling pedestrian and vehicular traffic, mediating domestic and non-criminal conflicts and providing emergency help and assistance. (25) On the other hand, the New York Court of Appeals pointed out the "tendency" on civilians' part to "submit to the badge," as well as the right of a person to be left alone that should not be wholly entrusted to those charged with detecting crime and enforcing the law. (26) And, the Court of Appeals observed, crime prevention was an area of policework "highly susceptible to subconstitutional abuses," reasoning that, as a result, this aspect of policework should receive greater scrutiny. (27)

   The Court of Appeals thus established guidelines for hearing courts to analyze policework by tethering an officer's right to request information to the manner and intensity of the interference, the gravity of the potential crime, and the circumstances attending the encounter. (28) Specifically, the court categorized police-civilian street encounters as belonging to one of four escalating levels. (29) When an officer requests information from a civilian under the first level, the Court of Appeals held that an officer must have "some objective credible reason" for doing so that is not "necessarily indicative of criminality." (30) For instance, the observation of a person coming out of a building and reacting in a startled manner to seeing an officer provides an objective credible reason for the officer to ask the person if he or she lives in the building. (31) For the second level, which is an "investigative" inquiry--such as to ask whether a person has a weapon--the police officer must have "founded suspicion that criminal activity is afoot." (32) For the third level, forcibly stopping and detaining a person, the officer must have reasonable suspicion to believe that someone has committed or is about to commit a crime. (33) This...