Forty-five years ago, the U.S. Supreme Court announced in Terry v. Ohio1 that police-citizen encounters rising to the level of a seizure but falling short of an arrest are subject to Fourth Amendment protection scrutiny. Eight years later in People v. DeBour,2 the New York Court of Appeals announced in a groundbreaking decision that New York courts must assess the propriety of street encounters that do not rise to the level of a seizure for purposes of the Fourth Amendment. To this day, New York remains the only state to regulate such encounters. Recently, the Court of Appeals, in People v. Garcia,3 extended the legal framework of DeBour to traffic stops, holding that a police officer, before asking a motorist if he or she is in possession of a weapon, must have a founded suspicion of criminality.
The ‘DeBour’ Framework
In DeBour, the court identified four levels of police encounters and the degree of knowledge needed to justify each level of intrusion. Under level one, a police officer may approach a citizen to request certain basic information when there is some objective credible reason for that interference, although not necessarily indicative of any criminality. The second level, the common-law right to inquire, permits an officer to request more intrusive information and ask questions of an accusatory nature. This must be justified by a “founded suspicion that criminal activity is afoot.”4
For level three, an officer may forcibly stop, and detain, a person when the officer has a reasonable suspicion that the person has committed, is committing or is about to commit a felony or misdemeanor. A corollary of the right to stop an individual is the authority to frisk if the officer reasonably suspects that he or she is in danger of physical injury because the detainee may be armed. Finally under the fourth level, a police officer may arrest and take into custody, a person he or she has probable cause to believe has committed a crime or offense in his or her presence.
The court concluded that this four-tiered framework “represents the gradation of permissible police authority with respect to encounters with citizens in public places and directly correlates the degree of objectively credible belief with the permissible scope of interference.”5
In the years following DeBour, the U.S. Supreme Court made it increasingly clear that police-initiated encounters falling short of actual seizures do not implicate the Fourth Amendment.6 In light of those cases, the New York Court of Appeals was urged to overrule DeBour. In People v. Hollman,7 the court declined to do so, reaffirming DeBour by holding that New York courts would continue to assess the propriety of low-level street encounters as a matter of state common law, infused by the “spirit” of the Constitution.
Former Chief Judge Sol Wachtler, who wrote the majority opinions in DeBour and Hollman, recently commented that DeBour “was born during the war on drugs.”8DeBour was clearly designed to address the thousands of street encounters initiated by the police who were battling an epidemic of drug activity in New York City.
Eventually, mid-level appellate courts began to apply the legal framework of DeBour to determine whether police-initiated questioning following a lawful car stop was permissible.9 At one point, the Third Department even applied a DeBour-type analysis in holding that a police officer was justified in knocking on the door of a residence.10 However, the Third Department ultimately held in a later decision that DeBour was never intended to apply and should not be applied to residential criminal investigations.11
On several occasions, the New York Court of Appeals assumed, in deciding the propriety of police conduct, the application of a DeBour and Hollman analysis to automobile encounters, but stopped short of holding that the graduated legal analysis applied to street encounters applied equally to traffic stops.
In People v. Battaglia,12 the police stopped the defendant’s car driven by another individual when the driver proceeded the wrong way down a one-way street. The driver of the vehicle gave the police a name that could not be verified by a computer check. A second officer then asked the defendant for permission to search the trunk, and the defendant agreed. The officer observed a wooden box in the trunk and requested permission to search it. After the defendant denied ownership of the box, the officer searched it, found a handgun and arrested the defendant.
In affirming a denial of suppression, the court concluded that the driver’s use of a false name created a founded suspicion of criminality justifying a common-law inquiry in the form of a request for the defendant to consent to a search of the vehicle.
Ten years later, the court affirmed the granting of suppression, when the request to search a defendant’s vehicle was not based upon a founded suspicion of criminality.13
On other occasions, the court utilized a level-one DeBour analysis in automobile cases, holding that a police officer may not approach a parked14 or a stationary15 car unless he or she has an objective credible reason to do so. Applying DeBour, the court limited the officer’s inquiry of the driver to basic, nonthreatening questions, e.g., identity, address or destination.
Thus, it was not surprising that in Garcia, the court held explicitly what was implicit in Battaglia: The framework of DeBour and Hollman applies with equal force to traffic stops.16 In Garcia, three police officers in a marked police vehicle pulled over the defendant’s vehicle because of a defective rear brake light. In addition to the defendant, who was driving, there were four male occupants in the vehicle. One officer testified that as he approached the vehicle, the three passengers in the rear seat “were a little furtive,” “kept looking behind” and “stiffened up.” A second officer observed that the passengers “made furtive movements and act[ed] nervous.”17
Upon arriving at the vehicle, an officer asked the defendant for his license and registration; the defendant complied with the request. The officer then asked if anyone in the vehicle had a weapon, and the passenger in the rear middle seat answered, “Yes, I have a knife.” The officer directed the passenger to place the knife on the floor and to keep his hands in view; the passenger complied. The officers then ordered the occupants out of the vehicle and frisked each person as he exited the car. After the last passenger exited, an officer observed what appeared to be “a gun or some sort of weapon” wedged between the front passenger seat and the door of the vehicle. The officer retrieved the item, an air pistol, and all five occupants of the car were arrested.18
The court rejected the prosecutor’s argument that there should be two different standards of analysis: one for street encounters and one for encounters with motorists. The prosecutor argued that because of the inherent danger of automobile stops, the police should be permitted to ask occupants of a lawfully stopped vehicle if they are in possession of a weapon, regardless of any suspicion of criminality.
The court held that prior decisions19 already guard against the unique dangers faced by police officers as they approach persons seated in an automobile. These decisions allow the police to neutralize these safety concerns by permitting them to order the occupants out of the vehicle to observe their movements, placing the occupants in the same vantage point as pedestrians with respect to police officers during street encounters.
Applying DeBour and Hollman to traffic stops, the court held that whether an individual is a pedestrian or a motorist, a police officer may not ask if the citizen is in possession of a weapon unless the officer has a founded suspicion that criminal activity is afoot. Under the facts of this case the court determined that the police officer did not have a founded suspicion of criminality, noting as it has in the past, that nervous behavior, in and of itself, is not an indication of criminality. Finally, the case was remanded for consideration of the prosecutor’s inevitable discovery claim.
In his dissent, Judge Robert Smith opposed any expansion of “the already hyper-stringent rule of DeBour,”20 noting that New York remains the only state to regulate questioning by police officers when they meet citizens on the street. While not advocating an abandonment of DeBour with respect to street encounters, Smith saw no reason to extend that standard to traffic stops. He noted that during a traffic stop, the motorist has already been subjected to a level three detention and that it “seems paradoxical to suppress evidence because of the lesser intrusion created by a level one or level two inquiry.”21
At the heart of the majority decision was a desire by the court to promote clarity and predictability in the area of search and seizure jurisprudence. As the court has noted on a previous occasion, bright-line rules “guide the decisions of law enforcement and judicial personnel who must understand and implement our decisions in their day-to-day operations in the field.”22 The court observed that if they had adopted the prosecutor’s argument, the result would have injected uncertainty into this area of search and seizure law.
As the court itself asked, if it had permitted police officers to make suspicionless inquiries into whether the occupants of a stopped vehicle have a weapon, what would prevent an officer from asking about drugs or other forms of contraband?23 This would have led to a slippery slope for law enforcement that the court has always sought to avoid. For as Wayne LaFave, a recognized authority, has observed: “[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.”24
Thus, Garcia has added clarity to the permissible scope of a police officer’s conduct during a routine traffic stop. Without a founded suspicion of criminal activity, the police officer may only ask for a driver’s license, registration and insurance card—but not about the presence of weapons in the car.
Barry Kamins is a Supreme Court justice, administrative judge, Criminal Court of the City of New York, and administrative judge for criminal matters in Brooklyn Supreme and Criminal courts.
1. 392 US 1 (1968).
2. 40 NY2d 210 (1976).
3. 2012 NY Slip Op 08670 (2012).
4. 40 NY2d 210, at 223.
7. 79 NY2d 181 (1992).
8. Keshner, ” DeBour’s Author Says Courts Seem Satisfied With Ruling’s Broad Principles,” New York Law Journal, July 27, 2012.
10. People v. Marshall, 5 AD3d 42 (3d Dept. 2004).
11. People v. Madden, 58 AD3d 1023 (3d Dept. 2009).
12. 86 NY2d 755 (1995).
13. People v. Dunbar, 5 NY3d 834 (2005).
14. People v. Bennett, 70 NY2d 891 (1987)
15. People v. Ocasio, 85 NY2d 982 (1995).
16. On other occasions, the court has assumed that a principle of law applies without specifically stating it; at a later point the court explicitly made that finding. See, e.g. People v. Feingold, 7 NY3d 288 (2006); People v. Grant, 7 NY3d 421 (2006).
17. 2012 NY Slip Op 08670, *2 (2012).
19. Pennsylvania v. Mimms, 434 US 106 (1977); People v. Robinson, 74 NY2d 773 (1989). Years earlier, Justice William Rehnquist had noted the statistical studies that underscored the danger when a police officer approaches a person seated in an automobile. Adams v. Williams, 407 US 143, at p 43, n 3 (1972).
20. See Garcia, 2012 NY Slip Op 08670, *6.
22. People v. PJ Video, 68 NY2d 296 (1986).
23. Garcia, 2012 NY Slip Op 08670, *7, FN1.
24. 3 LaFave, Search and Seizure §5.2(c) at 107 [4th Ed].