This is Part One in a two-part series of columns on two New York State appeals court panel decisions and the law relating to stop and frisk. Part Two will appear on August 15 here on Justia’s Verdict. –Ed.
At the end of June and the beginning of July, respectively, two panels of a New York State appeals court (the Appellate Division, First Department) each ruled that police had violated a suspect’s state constitutional rights against unreasonable searches and seizures, and that as a result, the trial judges should have suppressed the weapons found on the suspects—that is, the judges should have excluded the weapons from evidence that could be introduced against the defendants at a criminal trial.
Highly critical commentary—from Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, and from others—followed on the heels of the two rulings. The commentary suggested in harsh terms that the judges in the two cases were unjustifiably endangering public safety by second-guessing legitimate police decisions in rapidly unfolding and dangerous street encounters with suspects. In this column, I will analyze the controversy and offer an explanation for why we are unlikely to see its satisfactory resolution any time soon.
The Rules of Stop and Frisk under Federal and New York State Law
Some readers may be unfamiliar with the phrase “stop and frisk.” It refers to two police strategies that often work in concert, as follows:
Police “stop” a person when they intentionally restrain his or her freedom of movement. If you are driving on the highway, for example, and the police signal for you to pull over (by flashing their lights, sounding their siren, and/or making an announcement via a loudspeaker), they are attempting to “stop” you. If you comply and pull over, police have now “stopped” you and thereby subjected you to a “seizure” for purposes of the Fourth Amendment to the U.S. Constitution (as incorporated against states and localities by the Fourteenth Amendment).
Before police may lawfully stop you, they must generally have an articulable basis for suspecting that you are in the process of committing, about to commit, or have already committed a crime.
A “frisk,” in turn, occurs when police perform a surface search of your outer clothing in an effort to find weapons that might be on your person. Before lawfully frisking you, police must ordinarily have an articulable basis for suspecting that you are armed and dangerous. Though stops and frisks regularly occur together, for obvious reasons, the legality of the first (a stop) does not necessarily entail the legality of the second (a frisk).
As in other areas of law, the U.S. Constitution provides a floor for permissible official conduct, below which that conduct will violate the law. This means that state and local police must abide by U.S. Constitutional requirements (as construed by the U.S. Supreme Court), regardless of what the particular state’s constitution provides. This is a consequence of the U.S. Constitution’s Supremacy Clause, under which a valid federal law will apply when it conflicts with an applicable state law.
It accordingly follows that ordinarily, New York police may stop a suspect only if they have reasonable suspicion that the suspect is involved in criminal activity, and police may frisk a suspect only if they have reasonable suspicion that the suspect is armed and presently dangerous. The U.S. Supreme Court’s decision in Terry v. Ohio interpreted the Fourth and Fourteenth Amendments to so require.
Though the U.S. Constitution mandates a floor for official behavior, however, it does not usually provide a ceiling. This means that if a particular state wishes to extend greater protection to the individual against law enforcement practices than she would have enjoyed under the U.S. Constitution alone, the state has the power to do so. And New York State has done precisely that in the area of search and seizure law.
In the 1976 case of People v. De Bour, the New York Court of Appeals—the highest court in the state—announced a graduated set of requirements for escalating police encounters with suspects on the street. It was under this set of requirements that the two New York courts that I mentioned above recently found police conduct to have been unlawful, and accordingly, to have required suppression of the evidence resulting from that conduct, findings that generated tremendous public controversy.
New York’s Requirements For Police-Suspect Encounters
In De Bour, the highest court in New York divided on-the-street encounters between police and suspects into four stages, each of which, respectively, carries increasingly demanding requirements.
The first stage involves the police approaching a person to request information. To confront an individual civilian in this way requires some articulable reason sufficient to justify the approach, though police need not suspect criminal activity.
Then there is the second stage: To pose pointed questions to a potential suspect under the so-called “common-law right to inquire,” police, under New York law, must have “a founded suspicion that criminal activity is present.” With this second level of inquiry, it is clear to the suspect that he is in fact a suspect, but police may still lack enough suspicion to forcibly seize him in a manner “involving actual or constructive restraint.”
This means that in New York State, police may not simply ask questions of anyone they please, in the absence of some concrete basis for doing so. Even in the presence of a well-grounded level of suspicion justifying approach and questioning, moreover, police may still lack the power to seize the suspect.
The U.S. Supreme Court has not read the Fourth Amendment to contain either of these first two New York State requirements. Under federal constitutional law, unembellished by state law, police officers may lawfully approach and pose pointed questions to anyone they wish, without having to have either a legitimate reason for doing so or any basis at all for suspecting the person they approach of criminal wrongdoing. So long as the officers do not seize the individual (for example, by grabbing her arms, or by flashing their lights and thus directing a driver to stop), the police, under U.S. Supreme Court precedent, have the power to confront anyone and everyone they please on the street.
The protection that New York provides against the third and fourth stages of police intrusion more closely tracks the protection found in the federal Fourth and Fourteenth Amendments. To stop a suspect—by constructively or actually restraining her freedom of movement—police must have reasonable suspicion to believe that she has committed, is committing, or is about to commit a crime.
In turn, to frisk a suspect, there must be a reasonable threat of physical injury or a reasonable suspicion that the stopped person is armed. The fourth level of intrusion, the making of an arrest, may occur only when police have probable cause to believe that the person they seek to arrest has committed a crime.
The New York Supreme Court’s Interesting Approach to Police Encounters With Citizens
The first two New York requirements are interesting in that they reflect a very different perspective on police-citizen encounters than does the federal approach, under which police need not have any legitimate reason to approach a suspect on the street or to pose pointed questions to that suspect. The New York perspective is that when police approach you and pose questions, they do something coercive to you that calls for some regulation.
In the words of the New York Court of Appeals’s De Bour opinion:
Despite the lack of a forcible seizure here all constitutional considerations do not disappear. The basic purpose of the constitutional protections against unlawful searches and seizures is to safeguard the privacy and security of each and every person against all arbitrary intrusions by government. Therefore, any time an intrusion on the security and privacy of the individual is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity, the spirit of the Constitution has been violated and the aggrieved party may invoke the exclusionary rule or appropriate forms of civil redress.
Though you are technically free to go on your way when confronted by police as a suspect in a “level two” manner, and though you can refuse to answer the officer’s questions, the New York requirements acknowledge that such a confrontation interferes with your “right as a citizen to walk the streets unimpeded by the State.” In reality, the Court of Appeals thus recognized, when police approach, you experience little freedom to either go on your way or to refuse to respond to their questions.
The New York perspective may better capture the authentic experience of someone who is approached by the police, than does the perspective that federal law implicitly embraces. Whether out of fear of arousing further suspicion, or out of confusion about what one’s legal entitlements truly are, most individuals approached by a law enforcement official with questions and suspicion would, I predict, experience the confrontation as ruling out the option of saying “Sorry. I’m in a hurry. Maybe we can chat some other time,” to the police officer.
We may be confident about waving away someone who approaches us, asking, “Do you have a minute for the environment?” or “Can I tell you about our savior?” But many—indeed, perhaps most—of us would not feel similarly empowered in the presence of the police seeking to ask us questions.
To be sure, New York law does distinguish between posing pointed questions and technically seizing a person, and it correspondingly demands more of police for the latter than it does for the former. Yet the New York stop-and-frisk doctrine simultaneously honors the reality of how people truly feel when they confront police officers who are asking questions. Federal law, by contrast, does little to similarly honor that reality.
The New York Cases
In one sense, the distinctive aspects of New York law have little bearing on the suppressions at issue in the two New York cases, In re Darryl C. and In the Matter of Jaquan M. In both of those cases, the majorities of the appellate court panels did not dispute that police were justified in taking the first two steps discussed in De Bour: (1) approaching to request information, and (2) posing the more pointed questions that would plainly be aimed only at a suspect. Both courts found, however, that the police lacked “reasonable suspicion” to believe that the suspects were committing, had committed, or were about to commit a crime, and that the police also lacked reasonable suspicion to believe that the suspects posed a danger or were armed. On their face, then, it would seem that these two decisions represent fact-specific applications of a standard that is, for the most part, the same under federal and New York State constitutional law.
What is the reason, then, for all the fuss? And why have I suggested, here, that the special New York graduated-intrusions framework bears on the outcomes and people’s reactions to these two cases? I’ll consider those very questions in my next column, which will appear on August 15 here on Justia’s Verdict.