For the first time in its 42-year-old history, People v. DeBour (40 N.Y.2d 210) is facing divergent criticism from members on the New York Court of Appeals, as well as a report issued by a committee of prosecutors at the New York State Bar Association. In recent decisions, two jurists have questioned whether DeBour’s framework sufficiently protects a citizen who chooses to remain silent during a police encounter, thus invoking the right to be left alone. Another jurist has opined that DeBour’s “hyper stringent” structure is too technical and undermines the goal of public safety.
In DeBour, the New York Court of Appeals announced that New York courts must now 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 in this fashion.
The court identified four levels of police encounters and the level 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 the 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.” Id. at 223.
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 this degree of objectively credible belief with the permissible scope of interference. Id.
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. (See e.g., Florida v. Bostick, 501 US 429.) In light of those cases, the New York Court of Appeals was urged to overrule DeBour. In People v. Hollman (79 N.Y.2d 181), the court declined to do so, reaffirming DeBour by holding that New York courts would continue to assess the propriety of street encounters as a matter of state common law, infused by the “spirit” of the Constitution.
Ultimately, the Court of Appeals held that the framework of DeBour should also be applied to routine traffic stops, and that a police officer’s questions of a motorist must comport with DeBour’s structure. People v. Garcia, 20 N.Y.2d 317.
In recent months, DeBour has been the subject of increased criticism. In People v. Perez, 2018 N.Y. Slip Op 02118, Judge Jenny Rivera, joined by Judge Wilson, focused her dissent on a citizen’s right to be left alone, and the general right of privacy, especially for those citizens who live in public housing buildings. In the past few years, the DeBour framework has been applied with greater frequency in those types of buildings, where police officers routinely conduct “vertical patrols”, looking for trespassers.
In Perez, the police were conducting a vertical patrol in a Bronx Housing Authority building. During an encounter with the police, the defendant, who was a resident of the building (a fact not known at that time by the police) chose not to respond to police questions, and merely stood motionless during the encounter. He was first observed exiting an elevator, wearing a T-shirt over a hoodie, and when he observed the officers with shields displayed, retreated into the elevator.
The defendant chose to ignore an officer’s request to hold the elevator door, and pushed the button in the elevator until the doors closed. In light of that behavior, as well as the building’s history of narcotics and trespass activity, the police followed the defendant two flights up to determine whether he was a trespasser.
When the police observed the defendant in the hallway, the police asked him if he lived in the building. He did not say anything but turned and faced the wall. He was asked a second time but remained silent. The officer then noticed a nondescript bulge in the defendant’s arm which he held stiffly and straight down from his body in an unnatural position. The defendant remained silent when asked if he had any weapons and failed to respond when asked to show his hands.
Based on the defendant’s conduct, the officer was concerned for his safety. He touched the defendant’s sleeve and pulled it back, revealing the point of a blade. When told to drop the weapon, the defendant did not respond and the officer pulled a two-foot-long machete from the defendant’s shirt.
Shortly thereafter, the police learned that the defendant lived in an apartment on that floor. They also learned of a recent robbery in the area involving a machete–wielding suspect wearing clothing matching that worn by the defendant. The defendant was convicted of that robbery.
Both the suppression court and the Appellate Division held that the police action was lawful under DeBour. In a 5-2 decision, the Court of Appeals affirmed, holding that the issue on appeal to that court presented a mixed question of law and fact, and that there was support in the record for the police conduct.
In her dissent, Judge Rivera questioned whether, under the Debour framework, the police were authorized to approach the defendant in the first place. Once they did so, Judge Rivera opined that the police had acted unlawfully inasmuch as the defendant was exercising his constitutional right not to engage with the police—something that should not have escalated the encounter under DeBour.
Judge Rivera also suggested that the DeBour framework itself may be ill suited to assess police-citizen encounters in which citizens choose not to respond to police questions. In applying the facts of the case to the four tiers of DeBour, she concluded that the case fell “in the DeBour borderlands straddling the line between levels 2 and 3, and highlights some of our framework’s problems.” (Dissent, footnote 3). The case does highlight the problem that certain fact patterns do not easily fit into the four-tiered structure of DeBour. This may explain why neither the Appellate Division nor the Court of Appeals referred to any level of DeBour (beyond the initial approach) when analyzing the facts. The Appellate Division referred to the police “action” or “intrusion” rather than a common-law inquiry (level 2) or a stop (level 3). The Court of Appeals referred to the “applicable level of intrusion” without identifying a specific level of DeBour.
More recently, in People v. Gates (2018 N.Y. Slip Op 03096), Judge Michael Garcia questioned the continued vitality of DeBour because, in his opinion, it “serves as a barrier to legitimate, effective and minimally-intrusive law enforcement practices designed to detect and ward off threats at their earliest stages.” (Dissent, page 4.)
In Gates, following a routine traffic stop, a State Trooper asked the driver about the contents of several nylon bags with “square edged contours” that were behind the driver’s seat. The Appellate Division, Fourth Department had reversed the suppression court, and suppressed the contents of the bags (untaxed cigarettes) because the inquiry concerning the contents of the bags constituted a level 2 inquiry under DeBour, which required a founded suspicion of criminality that was not present at the time. The Court of Appeals affirmed the Appellate Division’s suppression determination.
In his dissent, Judge Garcia disagreed with People v. Garcia, supra, and the application of DeBour to routine traffic stops, arguing that there is a fundamental difference between street encounters with citizens and roadside police encounters following a traffic stop.
Judge Garcia, however, launched a much broader attack on DeBour, questioning its continued vitality based on its “rigid, complex, and graduated scale of encounters that are often fluid, dynamic and developing.” (Dissent, page 5.) In Judge Garcia’s opinion, DeBour requires unnecessarily intensive judicial inquiries into whether the police may initially approach citizens and its subtle gradations can be confusing to police officers who must comport with its framework.
DeBour had also received substantial criticism from the Committee on Prosecutors of the State Bar’s Criminal Justice Section. (Spring, 2018 Criminal Law Newsletter, Vol. 16, page 11.) That group reviewed the cases of 49 other states to determine other methods of evaluating police-citizen encounters. The group noted that no state has adopted DeBour’s framework, relying instead and for the most part on a three-tiered system of: (1) non-seizure encounters requiring no grounds; (2) reasonable suspicion to stop; and (3) probable cause to arrest.
The report concluded that DeBour’s structure is not workable because it is too confusing to police officers, and questioned whether DeBour is really a decision that serves the public interest. Finally, it concluded that DeBour has failed to offer either the clarity or guidance it sought to provide.
Where do we go from here? It is unclear whether a majority of the Court of Appeals has reached the conclusion that DeBour had outlived its usefulness and, if so, what structure should take its place. It is also questionable, considering the divergent views of the judges with respect to DeBour, whether the court could agree on what a replacement would look like. Judge Wachtler, who wrote the opinion in Debour, has said that the DeBour structure will be changed some day by “technology, a constitutional interpretation or the evolution of the common law … but we may have to wait another 40 years” (Criminal Newsletter, supra, at footnote 52). Only time will tell if his prediction is accurate.
Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (LexisNexis 2018). He is a former State Supreme Court Judge.