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
