Stops, frisks, and police encounters: the New York Court of Appeals's strict application of the De Bour standard.

Author:Long, Andrea A.
Position:Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

    To preserve a safe society and keep crime at a minimum, it is well-settled in both federal and New York case law that, in some situations, police have the authority to question, detain, search, or arrest individuals. The search and seizure provisions of the New York State Constitution and the federal Constitution are identical:

    The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (1) However, the United States Supreme Court and the New York State Court of Appeals long ago began carving out differing interpretations of search and seizure rights and how broadly to extend those rights to private citizens. Both courts have sought to balance the need to maintain a safe society with the need to uphold the constitutional rights of its citizens, as search and seizure situations naturally lend themselves to a tension between law enforcement interests and an individual's privacy. The Court of Appeals has long recognized that the New York State Constitution provides more protection to citizens in search and seizure cases than the federal Constitution does. (2)

    Since deciding People u. De Bour (3) in 1976, the Court of Appeals has maintained a strict construction and application of that standard, resisting attempts to allow courts more latitude in deciding police encounter cases through consideration of other factors. (4) In doing so, the court has developed a wide body of decisions interpreting the state constitution and state law, and expanded considerably the reservoir of independent state constitutional cases in New York. The De Bour test remains in effect just as strongly today as it was when first decided over thirty years ago, and the Court of Appeals continues to faithfully apply this standard when deciding cases based on street encounters between the police and private citizens. (5)


    In Terry v. Ohio (6) in 1968, the United States Supreme Court enumerated the federal standard for briefly stopping and searching (commonly known as a "stop and frisk") individuals suspected by police of engaging in some criminality. (7) In that case, the on-street encounter between police and a private citizen, Terry, occurred when an officer on patrol duty observed Terry and another man walking down the sidewalk. (8) The men were walking back and forth and looking at a storefront window, eventually joined by a third man. (9) Despite the hour of 2:30pm, the officer became suspicious and began keeping a closer eye on Terry, concerned they were planning a robbery by "casing" the storefront window. (10) "Deciding that the situation was ripe for direct action," (11) the officer approached the group and asked for their names, and then proceeded to physically grab Terry and pat him down. (12) He felt a pistol in Terry's front coat pocket, and the officer removed Terry's coat before patting down and arresting the other two men. (13) Terry was later convicted for carrying a concealed weapon. (14)

    Chief Justice Warren wrote for the majority and framed the issue as whether, given all the circumstances, Terry's Fourth Amendment rights were violated by an unreasonable search and seizure. (15) Interestingly, he began this analysis by setting out the policy arguments for both those in favor of stopping and frisking suspicious persons and those concerned about the personal privacy of citizens. (16) Rejecting the "all-or-nothing" approach advocated by both sides, Chief Justice Warren focused on the reasonableness, in all circumstances, of the government's invasion of personal privacy, and to what extent that privacy was invaded. (17) The Court ultimately found that because the nature of the invasion of privacy was less than that of a full arrest, the cause or suspicion necessary for that lesser intrusion was something less than probable cause: reasonable suspicion of some kind of criminal activity. (18) The Court of Appeals would decide the same issue only four years later, in the now-infamous De Bour case.


    Around midnight in October 1972, Louis De Bour was walking on the sidewalk toward two police officers, and when he crossed to the other side of the street the officers stopped him and asked "what he was doing in the neighborhood." (19) One of the officers then asked for identification and also noticed a suspicious bulge in De Bour's jacket. (20) When the officer asked De Bour to unzip the jacket, he spotted a gun tucked into his waistband. (21) De Bour was then arrested for possessing the firearm. (22) The entire encounter lasted only a few minutes. (23)

    The trial court denied De Bour's motion to suppress the weapon and found the officer's testimony credible during the suppression hearing. (24) On appeal, De Bour argued that the stop was a seizure that violated his Fourth Amendment rights, because he was deprived of his freedom of movement and intimidated by the officers surrounding him. (25) Judge Wachtler (who would later become the Chief Judge) analyzed the issues in this case using the primacy approach, relying first and almost exclusively on New York State case law. (26) He framed the issue as having two prongs: first, whether the initial encounter was lawful, and second, whether the actions taken were reasonable in scope, given the circumstances at the time. (27)

    The court noted that the job of a police officer is "a multifaceted one." (28) Among their many duties, "the police in a democratic society are charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other noncriminal conflicts and supplying emergency help and assistance." (29) The court addressed the need to balance police conduct with individual rights by creating a standard that justifies police interference by requiring increasing levels of cause and suspicion. This is known as the De Bour standard--a four-tiered method set out by the Court of Appeals for evaluating police encounters. This standard requires New York courts to evaluate each step of a police encounter to ensure the conduct remained constitutional. (30)

    Level I of De Bour requires an objective, credible reason to request information, "not necessarily indicative of [any] criminality." (31) The court explained that an inquiry at this level may include officers approaching private citizens to ask about the whereabouts of a lost child, or aid someone in distress. (32) Level II requires a founded suspicion that there is some criminality afoot before making any inquiries (known as the common law right of inquiry). (33) At this level, police officers are acting in their role as law enforcement, attempting to gain information in order to ascertain whether a crime has been committed. (34) At both the first and second levels of De Bour, a citizen may refuse to answer an officer's questions and is under no obligation to remain there with the police. (35)

    Level III requires reasonable suspicion before a stop or frisk. (36) This level specifically requires a reasonable suspicion that a particular person has committed a crime before engaging in a detention or pat-down. (37) Level IV requires probable cause that a person has committed a crime in order to arrest an individual. (38) Levels III and IV both correspond to federal standards that require reasonable suspicion or probable cause for a stop and frisk or arrest, respectively. (39) In establishing Levels I and II the court provided greater protections for citizens, by restraining police conduct beyond the requirements set by the United States Supreme Court.

    Applying this framework, the court found the initial inquiry to be lawful, as the officers simply asked De Bour his identity as part of their duties as foot patrolmen. (40) The court also held that the pistol was properly seized, because in the context of the late night encounter, deserted street, and the defendant's crossing the street ahead of the officers, the inquiry into the waistband bulge was minimally intrusive and done for the reasonable purpose of officer safety. (41) The conviction against De Bour was affirmed. (42)


    The New York State Court of Appeals has cited De Bour eighty-eight times since De Bour was decided in June 1976. (43) While the Court of Appeals is an appellate court, limited to questions of law, the court has noted that a De Bour analysis is a mixed question of law and fact and is beyond review as long as the record supports the finding. (44) Therefore, the majority of cases requiring a De Bour application that reached the Court of Appeals were affirmed if the record supported the decision made by the lower courts. However, the court still reviewed those cases and, if the record was inadequate to justify the result reached, engaged in its own De Bour analysis before remanding the case back to the lower court.

    In fifty-five (62.5%) of those cases, the court strictly applied De Bour by analyzing what level of suspicion and police conduct was present in the case. (45) In thirteen cases (15%), the court simply cited to De Bour without engaging in a strict analysis, instead using De Bour to stand for a related proposition, such as an "individual's right 'to be free from an official interference by way of inquiry' is not absolute." (46) In fourteen cases (16%), only the dissenting opinion referred to De Bour at all. (47) In two cases (2%), only the concurring opinion cited to De Bour, (48) Finally, four cases (4.5%) cite to De Bour as a comparison to another kind of Fourth...

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