The People v. Tyquan Johnson

• Court: New York Court of Appeals
• Decided: May 18, 2023
• Docket: 35
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 35 The People &c., Respondent, v. Tyquan Johnson, Appellant.

Paul B. Watkins, for appellant. Martin P. McCarthy, II, for respondent.

WILSON, Chief Judge:

In People v De Bour (40 NY2d 210, 216 [1976]), we established a four-tiered

framework for evaluating the propriety of police-initiated encounters with civilians (see -1- -2- No. 35

People v Hollman, 79 NY2d 181 [1992]). In this case, Tyquan Johnson was stopped and

frisked after he exited a parked car and walked down the street. He unsuccessfully moved

to suppress the contraband found on him. On appeal, he contends that the police did not

have the requisite level of suspicion to justify an intrusion under any level of De Bour. We

agree that the police lacked reasonable suspicion to believe Mr. Johnson had committed a

crime or was in possession of a weapon. Accordingly, we hold that the circumstances did

not warrant a level three stop and frisk under De Bour and that the evidence seized as a

result of the frisk must be suppressed.

I.

On an early evening in April 2015, Officers Bradley Pike and Darrel Schultz were

patrolling an area in Rochester that had recently experienced a reported rise in violent

crime. Both officers were in uniform and were riding in a marked vehicle.1 As they drove

up Harvest Street, Officer Pike noticed a parked Ford Explorer about fifty feet ahead.

There is no indication that the car was parked improperly or that it was otherwise violating

any vehicle or traffic laws. Office Pike observed the vehicle’s only occupant, Mr. Johnson,

move from the driver’s seat to the passenger seat. As Officer Pike approached the car, he

saw Mr. Johnson momentarily move his upper body back toward the driver’s seat. Officer

Pike stopped his patrol car behind Mr. Johnson’s car and turned on the overhead lights (not

the emergency lights), so he could better see into

1 The only version of events is from Officer Pike; Officer Schultz did not testify. -2- -3- No. 35

Mr. Johnson’s vehicle. Nothing in the record suggests that Mr. Johnson was aware of the

presence of the police when the police car stopped or when Officer Pike turned on the

overhead lights.

Officer Pike and Mr. Johnson exited their respective vehicles and Officer Pike

noticed that Mr. Johnson’s pants were unbuttoned, his belt undone, and that he was trying

to pull his pants up as he walked down the street. Officer Pike asked Mr. Johnson to hold

up, but Mr. Johnson continued to walk away. When Officer Pike caught up to Mr. Johnson,

he asked whether Mr. Johnson was nervous; Mr. Johnson replied that he was not. Officer

Pike asked whether Mr. Johnson had any weapons on him, to which Mr. Johnson replied,

“Nothing”. Officer Pike then frisked Mr. Johnson—finding no weapon. During the frisk,

Officer Pike felt an object in Mr. Johnson’s pocket he thought might be a bag of drugs. He

asked Mr. Johnson what was in his pockets and Mr. Johnson replied, “Nothing”.

According to Officer Pike, Mr. Johnson began emptying his pockets, throwing two bags of

marijuana on the ground. He also noticed that Mr. Johnson was holding a clear bag in his

fist containing what appeared to be heroin. Officer Pike placed Mr. Johnson under arrest.

Mr. Johnson moved to suppress the drugs found on his person as the fruits of an

illegal search and seizure. At the suppression hearing, Officer Pike testified that he thought

it was not “common” for someone to move from the driver to the passenger seat of a car

and that Mr. Johnson’s moving his upper torso back toward the driver’s seat meant there

was “potential” that Mr. Johnson could be trying to stash or retrieve a weapon. He also

considered it suspicious that Mr. Johnson was pulling up his pants and attempting to buckle

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his belt because suspects commonly hide weapons in their waistband. The court denied

the motion to suppress, and the case proceeded to a bench trial. Mr. Johnson was convicted

of two counts of criminal possession of a controlled substance in the third degree and was

sentenced to five years on each count, to run concurrently. On appeal, Mr. Johnson

renewed his arguments that Officer Pike’s initial request to stop violated level 1 of De

Bour; that the Officer’s questioning violated level 2, and that the stop and frisk violated

level 3. The Appellate Division affirmed, summarily holding that “the action taken by

[Officer Pike] was justified in its inception and at every subsequent stage of the encounter

leading to [Mr. Johnson]’s arrest” (206 AD3d 1702, 1703 [4th Dept 2022]). We now

reverse.

II.

There is no need for us to consider whether Officer Pike’s initial approach and

questioning violated levels 1 and 2 of De Bour because his frisk of Mr. Johnson clearly

runs afoul of level 3. To conduct a stop and frisk under De Bour level three, the police

must at a minimum have “reasonable suspicion that the particular person has committed or

is about to commit a crime” (People v Benjamin, 51 NY2d 267, 270 [1980]) or that the

person is “armed or dangerous” (People v Carney, 58 NY2d 51, 52 [1982]; see People v

Brannon, 16 NY3d 596, 602 [2011] [reasonable suspicion requires “specific and articulable

facts which, along with any logical deductions, reasonably prompted the intrusion”

(internal quotation marks and alteration omitted)]).

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Here, Mr. Johnson’s actions, as observed by Officer Pike, do not meet the minimum

standard required to justify a stop and frisk under De Bour. Prior to the frisk, Officer Pike

observed Mr. Johnson: (1) move from the driver’s seat to the passenger seat of his parked

car; (2) move his upper torso back toward the driver’s seat; (3) pull up his pants and attempt

to buckle his belt; and (4) appear nervous while being questioned. These circumstances do

not support a reasonable view that Mr. Johnson was armed or that he had committed or was

about to commit a crime. These actions “constituted [nothing] other than ‘innocuous

behavior,’ sole reliance on which would impermissibly reduce the foundation for [this]

intrusion to nothing but ‘whim or caprice’ ” (People v Carrasquillo, 54 NY2d 248, 252

[1981], quoting De Bour, 40 NY2d at 216-217; see also People v Sierra, 83 NY2d 928,

930 [1994] [no reasonable suspicion where defendant “grabbed at his waistband and then

fled”]; People v Milaski, 62 NY2d 147, 156 [1984] [nervousness in response to questioning

does not justify further detention]; People v Howard, 50 NY2d 583, 590 [1980] [presence

in area of “frequent burglaries” did not support reasonable suspicion and furtive

movements were “at best ambiguous”]). Because Officer Pike lacked reasonable suspicion

to justify the stop and frisk of Mr. Johnson, the evidence should have been suppressed.

Accordingly, the order of the Appellate Division should be reversed and the

indictment dismissed.

-5- RIVERA, J. (concurring):

A person’s “right to be left alone is ‘too precious to entrust to the discretion of those

whose job is the detection of crime’ ” (People v De Bour, 40 NY2d 210, 219 [1976],

-1- -2- No. 35

quoting McDonald v United States, 335 US 451, 455 [1948]). And yet, police interactions

with the public for criminal investigative purposes are necessary to ensure public safety.

This is risky business, as shown by media accounts of police encounters prompted by

innocent conduct that quickly escalate to violent altercations. These dangers are not new,

but their continued prevalence requires us to reassess whether the legal principles set out

in People v De Bour nearly half a century ago can protect individuals today from

“subconstitutional abuses” (40 NY2d 210, 220 [1976]).

Police officers protect our neighborhoods and the judiciary is constitutionally tasked

with determining the legality of the officers’ interactions with the public. I agree that, in

this case, there is no record support for the officer’s stop and frisk. But, unlike the majority,

I believe it pertinent to the resolution of this appeal and vital to the sound development of

our police-encounters jurisprudence that we also evaluate whether the officer’s initial

approach and inquiries were justified and not merely, as the majority opines, cumulative

factors in assessing the propriety of defendant’s eventual detention and frisk. After all,

these initial observations eventually contributed to his arrest.

Lawfully parking one’s car on the street and moving from the driver’s seat to the

front passenger’s seat is not suggestive of criminality. Nor is reaching from the passenger

seat back to the driver’s side or exiting through the closest door. Therefore, the officer’s

actions were unjustified at their inception and at every subsequent stage of the encounter

until defendant’s arrest. Any conclusion to the contrary invites the government to cast a

wide net that ensnares the innocent in the hopes that a fishing expedition will uncover

incriminating evidence. Apart from the danger to people on the street and the officers who

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patrol our neighborhoods, these aggressive investigative tactics strain relations with

communities, and distract from good policing practices that focus on actual criminal

behavior. Such aggressive encounters are inconsistent with the socially-accepted goals of

police engagement: public safety and security.

Moreover, although we have reached the right conclusion in this case—but have

taken different paths—I conclude that our street-encounters jurisprudence has veered in the

wrong direction and that the De Bour legal framework in practice does not serve the ends

of justice. The way to properly safeguard the right to be left alone and the safety of officers

and individuals alike is a rule that requires reasonable suspicion of criminality for all

police-initiated encounters.

I first discuss why reversal is required here. Defendant Tyquan Johnson argues that,

under De Bour’s four-level framework the police were unjustified in approaching,

questioning, and detaining him before his arrest (40 NY2d at 223). Based on the evidence

before the suppression court, defendant is correct that the officer’s initial approach and

every subsequent intrusion failed to comport with De Bour.

A.

Undeniably, De Bour is one of our Court’s most significant decisions, having set

the course for police encounters since it was first decided in 1976. De Bour rejected the

Federal Constitution’s “all or nothing approach” to seizures of persons by “emphasiz[ing]

the primacy of the right to be free from aggressive governmental interference” and more

broadly defining the term “seizure” to mean “a significant interruption with an individual’s

liberty of movement” (40 NY2d at 216-217). However, the Court also rejected Mr. De

Bour’s proposal for a “blanket prohibition on all police-citizen encounters conducted in the

absence of probable cause or reasonable suspicion based on concrete observations” (40

NY2d at 216). Instead, the Court concluded that police-initiated street encounters with the

public, short of a federal constitutional seizure under Terry v Ohio (392 US 1 [1968]) and

its progeny, were permissible but nonetheless subject to judicial scrutiny (id. at 217-218).

The Court then drew a distinction between “public service functions, not related to criminal

law enforcement” and criminal investigations, concluding that the latter are “viewed and

measured by an entirely different standard of reasonableness” (De Bour, 40 NY2d at

218-219). Thus, De Bour’s legal standards were informed by and responsive to the

“multiplicity and complexity of tasks assumed by the police” as public servants (id. at 218).

Nevertheless, as crime prevention “is highly susceptible to subconstitutional abuses[,]” the

Court reasoned, police interactions with the public “will be subject to the greatest scrutiny;

for whereas a police [officer’s] badge may well be a symbol of the community’s trust, it

should never be considered a license to oppress” (id. at 220). With those principles in mind,

the Court adopted its four-level framework, explaining that “in evaluating the police action

we must consider whether or not it was justified in its inception and whether or not it was

reasonably related in scope to the circumstances which rendered its initiation permissible”

(id. at 223).

As the Court explained years later in People v Hollman:

“De Bour represents the culmination of a number of State common-law cases that provided a framework for the evaluation of police-civilian encounters. . . . In De Bour, constitutional law and common law both played a part in the articulation of the four-part test. Although we stated that ‘constitutional considerations do not disappear’ when police encounters fall below the level of a seizure (People v De Bour, . . . at 217), we did not rest our analysis squarely upon the language of either the Federal or State Constitution. Rather, we noted that ‘[t]he 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’ (id. at 217). To some extent, then, our holding in De Bour was not compelled by the specific language of either the State or the Federal Constitution. Rather, it reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the privacy interests of all citizens and that the spirit underlying those words required the adoption of a State common-law method to protect the individual from arbitrary or intimidating police conduct” (79 NY2d 181, 195 [1992]).

Under this framework, the first step governs an officer’s least invasive engagement

with a private individual, and “[e]ach progressive level” of De Bour “authorizes a separate

degree of police interference with the liberty of the person approached and consequently

requires escalating suspicion on the part of the investigating officer” (id. at 185). The

justification for each escalation is based on the totality of the circumstances at the moment

the escalation occurs, building on the officer’s prior observations and actions of both the

officer and the private individual (see People v Moore, 6 NY3d 496, 500-501 [2006]).

At the first level, law enforcement may engage in minimally-intrusive questioning

to request information “when there is some objective credible reason for that interference

not necessarily indicative of criminality” (De Bour, 40 NY2d at 223). The second level—

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the common-law right of inquiry—permits officers “to gain explanatory

information, . . . short of a forcible seizure” upon a “founded suspicion that criminal

activity is afoot” (id.). The third level, “a forcible stop and detention,” requires the “officer

entertain[ ] a reasonable suspicion that a particular person has committed, is committing or

is about to commit a felony or misdemeanor,” and “[a] corollary of the statutory right to

temporarily detain for questioning is the authority to frisk if the officer reasonably suspects

that [they are] in danger of physical injury by virtue of the detainee being armed” (De Bour,

40 NY2d at 223 [citation omitted]; see also CPL § 140.50 [1]). “Finally[,] a police officer

may arrest and take into custody a person when [the officer] has probable cause to believe

that person has committed a crime, or offense in [the officer’s] presence” (id. [citation

omitted]). This framework applies to police encounters with both pedestrians and

individuals in motor vehicles, whether moving (People v Hinshaw, 35 NY3d 427, 431

[2020]; People v Garcia, 20 NY3d 317, 324 [2012]) or parked (see People v Harrison, 57

NY2d 470, 475-476 [1982]).

A full analysis of each De Bour level implicated in a defendant’s case is not merely

a thought exercise. Rather, addressing each implicated level of the framework is critical to

the development of our law in this area and our continuing constitutional obligation “to

provide clear guidance for police officers seeking to act lawfully in what may be

fast-moving street encounters and a cohesive framework for courts reviewing the propriety

of police conduct in these situations” (Moore, 6 NY3d at 499). When, as here, the Court

avoids discussion of Levels 1 and 2 and starts its analysis at the higher De Bour levels, it

implicitly legitimizes the information police gather as a result of those initial, lower-level

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intrusions, which is then later used to justify greater intrusions (see e.g. id. at 497-499

[beginning analysis with the “gunpoint stop” where officers acting on an anonymous tip

had arrived at the scene and approached the defendant “who began to walk away”]; People

v Townes, 41 NY2d 97, 100-101 [1976] [holding that, given the prosecution’s concession,

the gunpoint command to “freeze” was not “justified at its inception” when officers had

“followed the defendant and his companion for approximately one hour and . . . observed

them doing nothing more than walking about and looking at people and stores”] [internal

quotation marks omitted]; see also People v Perez, 31 NY3d 964, 966 [2018] [concluding,

without specifying the De Bour level at issue, that record evidence “provided the requisite

level of support to satisfy the applicable level of intrusion”]; People v Thorne, 207 AD3d

73, 75-77 [1st Dept 2022] [officers lacked reasonable suspicion for a Level 3 encounter

where officers first stopped defendant on the street and asked if they could speak with him,

to which he asked “why they were stopping him”]; Matter of Darryl C., 98 AD3d 69, 71-74

[1st Dept 2012] [invalidating stop and frisk under Level 3 even though officers approached

and questioned juvenile based on his being on a street corner during school hours holding

a non-descript “object”]).1 I therefore turn to a level-by-level analysis of the police

encounter that led to defendant’s arrest.

1 Because challenges to each level of the encounter must be preserved separately, information gathered from perhaps-unconstitutional, lower-level encounters may be exploited to support greater intrusions. Consequently, the initial intrusion escapes judicial review entirely (see e.g. People v Bora, 83 NY2d 531, 533-534 [1994] [defendant only preserved Level 3 claim, which the Court rejected]). -7- -8- No. 35

B.

According to the only police officer who testified at the hearing, he and another

officer were in uniform and patrolling a neighborhood that had recently experienced

increased violence when the testifying officer saw a Ford Explorer parked on the street 50

feet in front of him. He observed defendant—the sole occupant—move or jump from the

driver to the passenger seat and then move his upper body back towards the driver’s seat.

Believing there was a “potential” that defendant might have been trying to stash or retrieve

a weapon, the officer stopped his vehicle behind the Explorer, turned on his overhead lights

to look inside, exited his marked vehicle, and walked towards the Explorer.

None of the officer’s observations justified this initial approach. As we have said,

police must have an objective, credible reason for approaching a defendant, equally so

when a defendant is seated in a parked car (see Harrison, 57 NY2d at 475-476; De Bour,

40 NY2d at 216-217). Although the officer’s reason for conducting a Level 1 request for

information need not be indicative of criminality, it cannot be based on conduct that is

otherwise innocent (De Bour, 40 NY2d at 216) and the approach “must be predicated on

more than a hunch, whim, caprice or idle curiosity” (id. at 217). Here, the officer did not

testify that defendant’s vehicle was illegally parked or that defendant violated a rule of the

road. Instead, the officer approached based on having observed defendant changing front

seats. Moving from one seat to another in a parked car, however, is not “unusual” and

defendant’s doing so therefore supplied no “objective credible reason” for the Level 1

approach (Hollman, 79 NY2d at 190-191). Nor was it “unusual” when defendant reached

back toward the recently-vacated driver’s seat (id. at 190-191). It was the officer’s pure

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speculation that the defendant’s movements evinced a specific attempt to hide or retrieve

a weapon. Therefore, because there was no “objective credible reason”—nothing more than

a mere “hunch”—to approach defendant’s vehicle (De Bour, 40 NY2d at 223), the officer’s

observations at this point did not justify a Level 1 encounter.

Nor did the officer’s observations of defendant exiting through the passenger-side

door to the street justify either a Level 1 or Level 2 interaction because, as with defendant’s

seat change and reach toward the driver’s seat, this action was also not “unusual” (Hollman,

79 NY2d at 191) but was “innocuous behavior” that “alone [did] not generate a

founded . . . suspicion” (De Bour, 40 NY2d at 216). For example, traffic conditions may

have made it dangerous for defendant to exit on the driver’s side. Or perhaps the

driver’s-side door was malfunctioning and could not be opened from the inside. And the

fact that the car was parked in a neighborhood with a reported increase in crime does not

provide the requisite basis to approach since presence in a high-crime neighborhood does

not justify a police encounter with private individuals (see People v McIntosh, 96 NY2d

521, 526-527 [2001]). Otherwise, residents of an entire community would be subject to

intrusive police encounters merely because of their home addresses.

After defendant exited the Explorer, the officer first observed that defendant’s pants

and belt were undone, and then saw defendant pull up his pants and buckle his belt while

walking away. These observations did not support the officer’s stated suspicion that

defendant might have been hiding a weapon. Indeed, the officer’s conclusion defies

common sense, as defendant would have needed to button up and close his belt first in

order to be able to hide a weapon.

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Since none of these observations supported the officer’s initial, Level 1 approach—

and because individuals have the right to walk away without responding to such a request

(People v Howard, 50 NY2d 583, 586 [1980])—these observations also did not provide

justification for the officer to follow defendant, ask him to “hold up[,]” or walk alongside

him. Nor did the officer’s subsequent belief that defendant was nervous based on his chest

moving up and down support a founded suspicion of possible criminal activity to permit a

Level 2 inquiry about whether defendant had any weapons. As the Court has noted,

nervousness does not indicate criminality (see People v. Garcia, 20 NY3d 317, 323

[2012]), as “[i]t is certainly unsettling to be approached by a police officer” requesting

information and “a reasonable person would . . . be taken aback by such a request”

(Hollman, 79 NY2d at 192).

When defendant answered that he had “nothing,” the officer also had no basis to

detain defendant to further question him about whether defendant was nervous (see Moore,

6 NY3d at 501; see also CPL 140.50 [3]). Nor did the quantum of knowledge the officer

possessed up to that point provide a reasonable suspicion that defendant had committed,

was committing or was about to commit a felony or misdemeanor to support his subsequent

frisk (Terry, 392 US at 30; People v Batista, 88 NY2d 650, 654 [1996]). For example, the

officer did not testify that he saw a bulge or any other physical outline of a weapon before

he conducted the frisk (see De Bour, 40 NY2d at 221). The officer frisked defendant based

on pure supposition—which ultimately proved unfounded since defendant in fact had no

weapon.

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During this physical intrusion the officer did not feel any weapon but thought he felt

drugs in defendant’s pocket. He then asked defendant what was in the pocket and defendant

again answered “nothing.” According to the officer, even though defendant responded

“nothing” to every question regarding what defendant had on his person, defendant

spontaneously emptied his pocket and threw what appeared to be two bags of marijuana

and some dollar bills to the ground. The officer also observed a baggie in defendant’s hand

which the officer suspected contained heroin. Based on these final observations of the

drugs, the officer believed he had probable cause for defendant’s arrest. However, because

“[d]efendant’s later conduct cannot validate an encounter that was not justified at its

inception,” and the officer’s actions leading to the arrest—at Levels 1, 2 and 3—exceeded

the scope of permissible police interference with defendant, the contraband should have

been suppressed (see Moore, 6 NY3d at 498).

I have engaged in a straightforward De Bour analysis, working through every level

and describing why the police interaction here fails under each level of De Bour’s

framework. However, this atomized analysis and our experience with policing under the

shadow of De Bour illustrate why police encounters with private individuals should be

further cabined. Though driven by a goal of safeguarding the “right to be left alone[,]”

De Bour, as originally framed, renders it illusory in practice (40 NY2d at 219).

The Court has previously reconsidered De Bour. Fifteen years after the Court

announced the four-tiered framework, the prosecution in Hollman asked the Court to

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overrule De Bour and adopt the federal standard, arguing that Terry and its progeny “made

it increasingly clear that police-initiated encounters falling short of actual seizures do not

implicate the Fourth Amendment” (79 NY2d at 194). That argument was in part historical.

The De Bour Court acknowledged in 1976 that, at the time, there was “scant appellate

authority” on the constitutionality of “an investigative confrontation”—i.e. the authority of

police to approach private individuals (40 NY2d at 219). The prosecution in Hollman noted

that, during the decade and a half since the Court had decided De Bour, the United States

Supreme Court had concluded that a police approach short of a full-blown seizure does not

implicate the Fourth Amendment (Hollman, 79 NY2d at 194-195). Under the Federal

Constitution, a seizure occurs under Terry only when “ ‘a reasonable person would feel

free to disregard the police and go about [their] business’ ” (id. at 195, quoting Florida v

Bostick, 501 US 429, 434 [1991]). In other words, “[i]f the civilian would feel free to go,

‘the encounter is consensual and . . . will not trigger Fourth Amendment scrutiny unless it

loses its consensual nature’ ” (id., quoting Bostick, 501 US at 434).

The Hollman Court rejected this invitation to discard the De Bour framework and

clarified that “[t]he continued vitality of De Bour” was “not contingent upon the

interpretation that the Supreme Court gives the Fourth Amendment, because De Bour is

largely based upon considerations of reasonableness and sound State policy” (79 NY2d at

195). The Court further explained that police encounters that are not Fourth Amendment

seizures should continue to be evaluated under De Bour because judicial scrutiny of those

encounters best serves “[t]he aims of predictability and precision in judicial review of

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search and seizure cases and the protection of the individual rights” of the public (id. at

196 [internal quotation marks omitted]).

Thirty years have now passed since Hollman reaffirmed De Bour and almost fifty

years since the Court decided De Bour. Given De Bour’s analytic premise and our

troubling historical experience with police-initiated encounters, we should again reconsider

De Bour’s “continued vitality” (Hollman, 79 NY2d at 195). In De Bour, the Court

permitted intrusions under Levels 1 and 2, in part, based on “the practical necessities of

law enforcement and the obvious fact that any person in our society may approach any

other person and attempt to strike up a conversation” (id. at 219). At the same time, the

Court purported to create a check by subjecting these sub-Terry encounters to judicial

scrutiny with the objective of safeguarding “the primacy of the right to be left alone” (id.).

However, equating intrusions by police officers with those of “any person in our society”

ignores the simple reality that everyday people on the street understand: a police officer is

not just “any person[,]” but is an agent of the State, cloaked with governmental authority

and specially authorized to use lethal force (id.). Thus, while a private individual might not

think twice about ignoring a stranger, there is, as the De Bour Court described it, “the

tendency to submit to the badge” (id.).

Empirical evidence confirms the obvious, as “studies over the last several decades

on the social psychology of compliance, conformity, social influence, and politeness have

all converged on a single conclusion: the extent to which people feel free to refuse to

comply is extremely limited under situationally induced pressures” (Janice Nadler, No

Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup Ct Rev 153, 155

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[2002] [collecting and summarizing studies]). Here in New York, one psychologist who

submitted findings in connection with the New York Stop-and-Frisk Joint Remedial

Process’s 2018 final report and recommendations found that “[t]he intrusive

commanding-presence style of policing embodied in stop-and-frisk interventions at

unexpected and unprovoked times, combined with a history of use of excessive or deadly

force by the police, has generated considerable fear” (New York City Joint Remedial

Process, Final Report and Recommendations [2018] at 389, available at

https://www.jamsadr.com/files/uploads/documents/articles/belen-new-york-city-joint-

remedial-process-may-2018.pdf [last accessed May 15, 2023]).

A New York Civil Liberties Union survey conducted that same year similarly found

pervasive fear among community residents exposed to aggressive policing:

“More than two-thirds (67 percent) of respondents in heavily policed communities feared having a friend or family member killed by police (a surprising 15 percent of respondents in lightly policed communities felt the same way). Slightly fewer (64 percent versus 10 percent) feared that they themselves could be killed by police. And almost half (43 percent) of the respondents in heavily policed neighborhoods feared they could be sexually assaulted by police compared to six percent in lightly policed communities” (New York Civil Liberties Union, Shattered: The Continuing, Damaging, and Disparate Legacy of Broken Windows Policing in New York City [2018] at 12, available at https://www.nyclu.org/sites/default/files/field_ documents/nyclu_20180919_shattered_web.pdf) [last accessed May 15, 2023]).2

2 The report defined “heavily policed neighborhoods” as those with the highest number of stop-and-frisk reports (New York Civil Liberties Union, Shattered: The Continuing, Damaging, and Disparate Legacy of Broken Windows Policing in New York City [2018] at 12, available at https://www.nyclu.org/sites/default/files/field_documents/nyclu_ 20180919_shattered_web.pdf) [last accessed May 15, 2023]). - 14 - - 15 - No. 35

In addition, the survey found that 64% of respondents in “heavily policed communities

reported that police at times made them feel scared[,]” 71% “unsafe[,]” and 74% “nervous”

(id.). Significantly, police officers’ shouting commands contributed to individuals’

apprehension of the police in more heavily-policed communities:

“Sixty-one percent of survey respondents in heavily policed communities reported at least one negative verbal police encounter in 2016, compared to 15 percent in less policed communities. One in four people in heavily policed communities said they were shouted at by police, (25 percent versus five percent), cursed at (26 percent versus four percent) or threatened with arrest (33 percent versus three percent)” (id. at 18).

The fear is not unfounded, because, as I discuss infra, for members of certain racial, ethnic

and religious communities, ignoring a police officer can carry dire consequences.

III.

The De Bour Court aimed to shield “the right to be free from aggressive

governmental interference” and “the right to be left alone” (40 NY2d at 216, 219), but

experience has shown that the means it supplied for doing so—the regulation of sub-Terry

encounters on less than reasonable suspicion—has not only proven inadequate, but, at

times, undermined those very rights by promoting heightened forms of governmental

intrusion triggered by non-criminal behavior. The resulting escalation of police-initiated

encounters jeopardizes the safety of the public and police officers, and frustrates

community policing efforts.

One commentator observed in 1991 that the De Bour framework’s atomized levels

are susceptible to conflation with one another in a manner that spurs the police to initiate

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and escalate encounters with members of the public (see Emily J. Sack, Police Approaches

and Inquiries on the Streets of New York: The Aftermath of People v. De Bour, 66 NYU L

Rev 512, 520, 548-553 [1991]). People v Reyes (83 NY2d 945 [1994]), which the

prosecution cites in favor of affirming the denial of suppression here, illustrates the

point. In Reyes, two officers positioned themselves on both sides of the defendant

and “approached him with their hands on their holstered guns” while commanding “ ‘Hey

stop, excuse me’ or ‘Stop, hey, stop, police,’ or words to that effect” after they observed

him “clutch” with his hands in his pants pockets and “walk briskly away from a group of

men” in a “drug prone area” (id. at 946). When the defendant complied, a brick-like object

fell from his armpit to the ground, which turned out to be a kilogram of cocaine (id.). It is

difficult to imagine how Mr. Reyes could have regarded the officers’ conduct as

“nonthreatening” (Hollman, 79 NY2d at 191). Indeed, given the gravity of the intrusion—

officers issuing commands with their hands on their firearms—it is difficult to imagine that

a person in Mr. Reyes’s position would not have felt “suspected of wrongdoing,” or even

free to leave, thus qualifying the encounter as (at least) a Level 2 (id. at 185, 191-192; see

also United States v Mendenhall, 446 US 544, 553 [1980]). Nonetheless, the Appellate

Division held that the actions of the police constituted a Level 1 encounter and reasoned

that commanding a person to stop in such a manner “is a necessary preliminary to request

information when a person is ahead of the officer, walking away from him, and—for all

that appears—unaware that the officer wished to inquire” (People v Reyes, 199 AD2d 153,

155 [1st Dept 1993]). This Court affirmed, agreeing with the Appellate Division that the

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encounter amounted to a Level 1 “permissible request for information based on some

objective credible reason” (Reyes, 83 NY2d at 946).

Reyes is a prime example of how De Bour’s legal standard for limiting police power

during sub-Terry encounters (see 40 NY2d at 219-220) can produce the opposite effect

(see Sack, 66 NYU L Rev at 550). On one hand, the Court reiterated in Hollman that

“[e]ach progressive level” of De Bour “authorizes a separate degree of police interference

with the liberty of the person approached and consequently requires escalating suspicion

on the part of the investigating officer” (79 NY2d at 185; see also Moore, 6 NY3d at 500).

But Reyes inverts this graduated approach. Under its logic, an initial, unjustified intrusion

can be transformed into permissible police conduct when it facilitates a justified

lower-level intrusion. For example, applying Reyes’s rationale to a hypothetical variation

of the facts in defendant’s appeal, the officers would have acted lawfully in stopping

defendant’s car if it were moving and immediately asking him if he was carrying a weapon

on the ground that this Level 3 seizure was a “necessary preliminary” to the Level 2 inquiry

(Reyes, 199 AD2d at 155, affd 83 NY2d 945 [1994]).

Concerns about the Court’s atomization of police action and the potential for reverse

engineering a lawful basis for an unjustified, escalating intrusion were identified in a

strongly worded dissent by Judge Fuchsberg in People v Samuels (50 NY2d 1035 [1980]).

In his view, “the mushrooming lexicographical distinctions into which the reasonableness

of street stops and seizures are being categorized present a disturbing problem” (id. at

1039-1040 [Fuchsberg, J., dissenting). “Since the circumstances of no two stops are ever

precisely the same,” he continued, “the semantics necessarily employed to effect such

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compartmentalization, however well intended, in the end make it all the easier to substitute

labels for liberties” (id. at 1040). He welcomed what he regarded as “a trend away from

the artificial and ‘unworkable’ hierarchy of police conduct erected in People v De Bour”

(id., quoting Note, People v De Bour: The Power of the Police to Stop and Frisk Citizens,

30 Syracuse L Rev 893 [1979]).3

In Samuels, an officer followed the defendant after he saw the defendant purchase

a holster from a novelty shop and asked the defendant why he had made the purchase (50

NY2d 1035, 1036-1037 [1980]). The defendant did not respond, and instead put his hand

in his coat pocket (id. at 1037). The officer commanded the defendant to remove his hand

from his pocket; defendant did not comply (id.). The officer then grabbed the defendant’s

hand through his coat pocket and discovered a gun (id.).4 In upholding what was essentially

a frisk, the Court acknowledged that the defendant’s failure to respond to the officer’s

question would not have justified further action by the police, but that placing his hand in

his pocket and refusing to withdraw it elevated the officer’s “interest in his own safety” to

a “sufficient basis for his grabbing the [defendant’s] hand through the coat” (id.). And yet,

the arresting officer testified that police indiscriminately confronted patrons who examined

holsters (id. at 1039 n 1 [Fuchsberg, J., dissenting]).

3 Judge Fuchsberg was of course referring to a “trend” in federal Fourth Amendment jurisprudence in the wake of Terry (Samuels, 50 NY2d at 1040 [Fuchsberg, J., dissenting]). As I discuss infra, however, that trend has not resulted in the robust protections Judge Fuchsberg deemed necessary to avoid abuses of police power. 4 Judge Fuchsberg cited an affirmed finding that the officer threatened “to break [the defendant’s] head” before grabbing his hand through the coat pocket (Samuels, 50 NY2d at 1041 [Fuchsberg, J., dissenting]). - 18 - - 19 - No. 35

Of course, one can sympathize with this officer’s reaction. After all, who wouldn’t

feel threatened by somebody refusing to remove their hand from their pocket after just

having purchased a holster? But as Judge Fuchsberg explained, the officer’s safety would

not have been at issue as a result of this rapidly-escalated confrontation had he simply

refrained from approaching the defendant (see id. at 1039):

“The tone of life and spontaneity of spirit that characterizes a free society could not long survive if the police were allowed to exploit any unusual circumstance, rationalized with 20-20 hindsight as giving rise to suspicion, as a basis for an escalating intrusion into the privacy of anyone who insists on his right to be left alone . . . . This factor is crucial here, for without the initial baseless encounter, the officer could not conceivably claim that he was placed in a position where concern for his own safety compelled him to frisk defendant (see Terry, 392 US at 27)” (id. at 1039 [citation and footnote omitted]).

Even if the officer’s hunch turned out to be correct in Samuels, such fails to account

for the cases featuring similar encounters where no weapon is recovered and which,

consequently, never find their way into our courts (see Terry, 392 US at 13-14 [discussing

the powerlessness of the exclusionary rule “to deter invasions of constitutionally

guaranteed rights where the police either have no interest in prosecuting or are willing to

forgo successful prosecution in the interest of serving some other goal”]). We know that

there are numerous such cases.

Police intrusions that qualify as Level 1 and 2 encounters under De Bour are quite

common (see Lynn Langton and Matthew Durose, Police Behavior During Traffic and

Street Stops, 2011, United States Department of Justice—Office of Justice Programs:

Bureau of Justice Statistics [September 2013] at 11-12, available at

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https://bjs.ojp.gov/content/pub/pdf/pbtss11.pdf [last accessed May 15, 2023]) and, as I

have discussed, the De Bour model catalyzes their rapid spiral toward escalation and

violence (see Sack, 66 NYU L Rev at 520, 548-553). But as history, social science, and

demographic research has shown, the right to walk away is illusory. In Floyd v New York,

the federal district court in the Southern District of New York found, based on expert

testimony, that 83 % of individuals stopped by the NYPD were black or Latino, even

though those two groups made up only 52 % of the city’s population (959 F Supp 2d 540,

560 [SDNY 2013]; see also Dasha Kabakova, The Lack of Accountability for the New York

Police Department's Investigative Stops, 10 Cardozo Pub L Pol’y & Ethics J 539, 562-63

[2012] [observing that, “in precincts in which blacks are less than 10% of the population,

blacks remained over two times (2.17) more likely to be ‘stopped’ on suspicion of

committing a violent crime than whites . . . (and) these differences are evident after

controlling for race- and crime- specific arrest rates (within each precinct)”]).

The Floyd court also found that the NYPD had engaged in racial profiling and “the

odds of a stop resulting in any further enforcement action were 8% lower if the person

stopped was black than if the person stopped was white” (959 F Supp at 560 [emphasis in

original]). Blacks and Latinos also bore the brunt of violent policing, as “blacks who were

stopped were about 14% more likely” and Latinos “9% more likely—than whites to be

subjected to the use of force” (id.). Hence, in addition to its numerous other deficiencies,

De Bour has also failed to tackle racial profiling (see People v Epton, 19 NY2d 496, 501

[1967] [commenting that “tensions in Harlem” had “heightened over the issue of police

brutality”] and, if anything, has entrenched it (see Floyd, 959 F Supp 2d at 560).

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As one legal scholar has argued, racial profiling as an investigative tool becomes a

self-fulfilling prophecy under which successful police actions against one discrete group

results in greater focus upon that group that permits sometimes-more-frequent crime by

other groups to go undetected (see Barry Friedman, Unwarranted: Policing Without

Permission 197 [2017]). As he explained:

“Think about it this way. You like to fish, so you ask people what’s a good spot. They say Trout Pond. You go there, and sure enough you catch some fish. Occasionally you go somewhere else, and you catch some fish there, too, but you’ve been told Trout Pond is a surefire bet, and you’ve seen some evidence of that, so you keep coming back to it. Now, if you’d done a careful study, you’d have learned that Trout Pond was no better than any other spot, and in fact might have been less good. There were more fish in other places, like Town Wharf or Towd Point. But having been told of Trout Pond and had your information confirmed, that is where you went” (id.).

The choice not to engage with police is no choice in fact for many people of color.

Indeed, as De Bour itself acknowledged, it is difficult to understand how any person is not

intimidated or otherwise believes that they cannot leave when approached by, as in this

case, a uniformed officer or someone identifying themselves as a law enforcement official

who tells them to stop (see De Bour, 40 NY2d at 219). And although the Court has said the

right to walk away exists—elevating it to almost sacrosanct status—it has simultaneously

recognized that turning and walking or running away from an officer may be a factor

supporting Level 2, 3, and 4 intrusions on the ground that “[f]light, combined with other

specific circumstances indicating that the suspect may be engaged in criminal activity,

could provide the predicate necessary to justify pursuit” (People v Holmes, 81 NY2d 1056,

1058 [1993]; see also People v Sierra, 83 NY2d 928, 930 [1994] [holding that the

defendant’s walking away from officers who, from a police cruiser, requested information

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under Level 1 in a drug-prone area furnished officers with “reasonable suspicion that he

was committing or was about to commit a drug-related crime”]).

Assume that, here, defendant had not merely said that he had nothing on him but

also then tried to walk around the officer or back towards his vehicle. Would the officer

have let him walk away? That is unlikely since the officer testified that, before either he or

defendant had even exited their vehicles, he believed—despite a glaring lack of evidence—

that defendant possessed a weapon. More likely, the officer would have stopped defendant

and conducted the frisk anyway. So much for the right to be left alone. I have previously

identified this same dilemma, noting that upholding a stop and frisk based on a defendant’s

refusal to respond to a Level 1 or Level 2 inquiry “suggests that members of the public

must affirmatively respond to officers or risk forfeiting their freedom, a proposition we

have clearly and unequivocally rejected” (Perez, 31 NY3d at 978 [Rivera, J., dissenting]).

New York City acknowledged in Floyd that: [1] “[b]etween January 2004 and June

2012, the NYPD conducted over 4.4 million Terry stops[;]” [2] “52% of all stops were

followed by a protective frisk for weapons[;]” and [3] “[a] weapon was found after 1.5%

of these frisks[,]” meaning that, in 98.5% of the 2.3 million frisks, no weapon was found”

(959 F Supp2d at 558). The City also conceded that only “6% of all stops resulted in an

arrest, and 6% resulted in a summons[,]” while “[t]he remaining 88% of the 4.4 million

stops resulted in no further law enforcement action” (id. at 558-559). So many resources

expended, so much liberty infringed, and so many people endangered, yet so little

successful law enforcement outcomes to show for it. The individuals stopped of course

bear the brunt of this failed policing strategy.

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New York police recognize the deleterious effects this policing approach has on

community relations. Former Mayor Michael Bloomberg issued an apology for the City’s

stop-and-frisk policy which he had championed during his Mayoralty (see Carl Campanile,

Craig McCarthy and Aaron Feis, Police Union, de Blasio Blast Bloomberg Over

Stop-and-Frisk Apology, NY Post [Nov. 17, 2019], available at https://nypost.com/

2019/11/17/police-union-de-blasio-blastbloomberg-over-stop-and-frisk-apology/ [last

accessed May 15, 2023]). In response, the New York City Police Benevolent Association

President conveyed his apparent longstanding view that stop-and-frisk was a “ ‘misguided

policy’ ” that “ ‘inspired an anti-police movement that has made cops the target of hatred

and violence, and stripped away many of the tools we had used to keep New Yorkers safe’ ”

(id.). He asserted that the PBA had told the Mayor “ ‘in the early 2000s that the quota-driven

emphasis on street stops was polluting the relationship between cops and our communities’ ”

(id.).

As is abundantly clear from numerous sources—the stop and frisk litigation in the

Southern District of New York (Ligon v City of New York, 925 F Supp 2d 478 [SDNY

2013]; Floyd, 959 F Supp2d at 540), national statistics (e.g. New York Civil Liberties

Union, Shattered: The Continuing, Damaging, and Disparate Legacy of Broken Windows

Policing in New York City [2018], supra), and all too frequent news reports—the risks

attendant with escalation from Levels 1 through 4 of De Bour fall heaviest on people of

color and the mentally ill, sometimes with tragic consequences (e.g. NYPD Housing

Officers Beaten with Baton in Brooklyn, Suspect Shot and Killed, CBS New York [Nov 19,

2016], available at http://newyork.cbslocal.com/2016/11/19/officers-hurt-in-brooklyn-

- 23 - - 24 - No. 35

shooting/ [last accessed May 15, 2023] [officers responding to a 9-1-1 call about a

“suspicious man” in a public housing complex approached the decedent and asked him for

identification, after which a scuffle ensued, the decedent struck one of the officers with the

officer’s own baton, and the officers fatally shot the decedent—who had a history of

depression and addiction]).

By encouraging more police-initiated interactions with private individuals that risk

dangerous, sometimes fatal outcomes for both individuals and officers, De Bour’s method

of balancing public safety and the individual right to be left alone has proven

counterproductive to both (e.g. John Dias, NYPD: Devin Spraggins, 22, Arrested in

Shooting of Rookie Officer Brett Boller in Queens, CBS New York [Apr 7, 2023], available

at https://www.cbsnews.com/newyork/news/devin-spraggins-arrested-in-shooting-of-

nypd-officer-brett-boller-in-jamaica-queens/ [last accessed May 15, 2023] [defendant shot

police officer who boarded a bus and confronted him in response to a report of an

altercation between passengers]; Suspect Shot and Killed After NYPD Pursuit Ends in

Crash, Closes Saw Mill River Parkway, ABC7: Eyewitness News [Dec 8, 2015], available

at https://abc7ny.com/westchester-yonkers-crash-nypd/1114221/ [last accessed May 15,

2023] [following chase of an unarmed driver who did not stop when commanded, police

shot and killed him]; NYPD ‘Inadvertently’ Shot Dead Unarmed Man in Brooklyn After

Dispute, The Guardian [Oct 2, 2014], available at https://www.theguardian.com/us-news/

2014/oct/02/nypd-inadvertently-killed-unarmed-man-brooklyn-shooting [last accessed

May 15, 2023] [man who intervened in an intimate-partner incident involving a man with

a knife killed in an ensuing “hail of police gunfire”]; Joseph Goldstein and Marc Santora,

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Staten Island Man Died From Chokehold During Arrest, Autopsy Finds, New York Times

[Aug 1, 2014], available at https://www.nytimes.com/2014/08/02/nyregion/staten-island-

man-died-from-officers-chokehold-autopsy-finds.html [officers approached decedent and

questioned him on suspicion of selling unlicensed cigarettes and, after the man denied the

allegations and accused the officers of harassing him, an officer placed him in a chokehold

which killed him]). Empirical studies confirm these anecdotes: police-initiated encounters

with members of the public increase the risks for everyone involved in them (see Darrel

W. Stephens, Officer Involved Shootings: Officers/Subjects [Executive Summary],

National Police Foundation [October 2019] at 3 , available at

https://www.policinginstitute.org/wp-content/uploads/2019/05/1.-OIS_incident_exec_

summary_8.28.19.pdf [last accessed May 15, 2023] [study finding that, nationwide,

officers suffered injuries in 17.4% of police shootings following police-initiated

encounters, compared to 12.2% in those initiated by citizens]; National Police Foundation,

Research Summary: Non-Fatal Injuries to Law Enforcement Officers [March 2018],

available at https://www.policinginstitute.org/wp-content/uploads/2018/07/Non-fatal-

Injuries-to-LEOs-Research-Summary-2018.pdf [last accessed May 15, 2023]

[summarizing an academic study showing that, between 2003 and 2014, the frequency of

non-fatal injuries to police officers far outpaced that of American workers generally and

had steadily increased for over a decade]).

Simply stated, De Bour’s framework has proven itself to be “an unworkable” one

that “creates more questions than it resolves” (People v Taylor, 9 NY3d 129, 149 [2007]),

“no longer serves the ends of justice or withstands the cold light of logic and experience”

- 25 - - 26 - No. 35

(Policano v Herbert, 7 NY3d 588, 604 [2006] [internal quotation marks omitted]), and has

simply been undermined by “the ‘lessons of experience and the force of better reasoning’ ”

(People v Bing, 76 NY2d 331, 338 [1990], quoting Burnet v Coronado Oil & Gas Co., 285

US 393, 407-408 [1932] [Brandeis, J., dissenting]). Although the Court viewed De Bour’s

approach as sensible when adopting it in 1976, and when reaffirming it in 1992, its

application during the many years since has diminished its vitality, to the point that the

events of the present now overshadow the good intentions of the past. The De Bour

framework has calcified into an “archaic and obsolete doctrine which has lost its touch

with reality” (People v Hobson, 39 NY2d 479, 487 [1976]). Our experiences with De Bour

supply a “compelling justification” for adopting an approach to police-initiated encounters

that better safeguards the right to be let alone, public safety and officer security (People v

Peque, 22 NY3d 168, 194 [2013]).

IV.

To better ensure public safety and protect the rights of individuals and diverse

communities from abusive and ineffective policing, we should require all police-initiated

encounters to be justified on reasonable suspicion and actual signs of criminality—i.e.,

reasonable suspicion of an ongoing or completed felony or misdemeanor. Absent such

cause for a criminal investigation, the law should not permit officers to approach private

- 26 - - 27 - No. 35

individuals to request information or engage in what De Bour termed a “common-law right

to inquire” (40 NY2d at 223).

This wiser approach values autonomy and avoids “substitut[ing] labels for liberties”

(Samuels, 50 NY2d at 1040 [Fuchsberg, J., dissenting]). It also leaves ample room for

police action at times of heightened concern for public safety. For example, if an officer

receives a reliable tip from an anonymous source or a confidential informant that a person

has committed, is about to commit or planning a felony or misdemeanor, the officer would

remain able to approach and inquire (see Florida v J.L., 529 US 266, 270-271 [2000];

People v Argyris, 24 NY3d 1138, 1140 [2014]). Or if a person approaches an officer and

identifies someone on the street as involved in a crime, the officer may approach and

inquire (People v Moore, 32 NY2d 67, 69 [1973]). And, of course, if an officer personally

observes conduct that supplies reasonable suspicion that crime is afoot—not merely based

on an incredulous view of innocent conduct, as was the case here—an officer may approach

(id.). The Court has found such police interactions to be lawful under Levels 3 and 4 of

De Bour.

This is also not to say that such a rule would prohibit an officer from approaching

to seek assistance in gaining information unrelated to whether the person approached is

engaged in criminality. For example, an officer seeking information about a missing person

would still be able to approach individuals to ask if they had seen or heard of the missing

individual. That is good policing and in furtherance of public safety goals.

The federal approach is not a viable replacement for De Bour. As the Court

recognized in Hollman, the Terry standard would be inconsistent with “our judgment that

- 27 - - 28 - No. 35

encounters that fall short of Fourth Amendment seizures still implicate the privacy interests

of all citizens and that the spirit underlying those words required the adoption of a State

common-law method to protect the individual from arbitrary or intimidating police

conduct” (79 NY2d at 195). In other words, the federal approach does not reduce the risks

that rapidly-escalating, violent encounters pose for individuals and officers.

Justice Sotomayor has aptly described the flaws in the federal approach. In Utah v

Strieff, Justice Sotomayor powerfully described how the United States Supreme Court “has

allowed an officer to stop you for whatever reason [they] want[ ]—so long as [they] can

point to a pretextual justification after the fact” and reminded us that, under Terry and its

progeny, although the requisite “justification must provide specific reasons why the officer

suspected you were breaking the law, . . . it may factor in your ethnicity, . . . where you

live, . . . what you were wearing, . . . and how you behaved” (579 US 232, 252 [Sotomayor,

J., dissenting] [citations omitted]). Justice Sotomayor discussed the dreadful consequences

that attend this conduct, which the Fourth Amendment tolerates, including intrusive frisks,

possible handcuffing and jailing, fingerprinting and DNA collection, and—even if

innocent—an arrest record (id. at 253). The Justice also observed that “[f]or generations,

black and brown parents have given their children ‘the talk’—instructing them never to run

down the street; always keep your hands where they can be seen; do not even think of

talking back to a stranger—all out of fear of how an officer with a gun will react to them”

(id. at 254). The Supreme Court’s post-Terry reading of the Fourth Amendment, Justice

Sotomayor concluded, “implies that you are not a citizen of a democracy but the subject of

a carceral state, just waiting to be cataloged” (id.)

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Legal scholars have vigorously critiqued this evolution in the Supreme Court’s

Fourth Amendment jurisprudence. For example, one scholar and former federal prosecutor

has colorfully described how the Supreme Court had “greased the wheels

of . . . controversial” stop-and-frisk tactics for which Terry and its progeny left room

(Julian A. Cook, III, Suspicionless Policing, 89 Geo Wash L Rev 1568, 1580 [2021]).

Another scholar and court reform expert has suggested that, while Terry may “create a

clearer standard” and “reflect actual police behavior more realistically” than De Bour,

Terry “skew[s] further the already imperfect balance between law enforcement and

individual privacy interests” and that “the history of federal constitutional law

demonstrates that this model creates a constant pressure to expand the area of police

behavior not subject to constitutional scrutiny” (Sack, 66 NYU L Rev at 553-554).

New Yorkers need not be left vulnerable to subconstitutional abusive police

conduct. The way forward is to simply adopt the standard Mr. De Bour proposed decades

ago—“reasonable suspicion based on concrete observations”—before initiating encounters

with individuals (De Bour, 40 NY2d at 216). Time and experience have proven this to be

the just and fair approach.

V.

The De Bour Court adopted a tiered approach, intending for it to provide some

minimal protections against aggressive sub-Terry police investigative encounters. The

right to privacy and the interest in public security that animated De Bour’s analysis are no

less significant today than they were almost 50 years ago. However, despite the De Bour

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Court’s best intentions and earnest effort in 1976, the framework it adopted has failed to

generate the predictability and precision in judicial review for which it strove. Instead,

experience has shown that, because the bar is set so low, courts often treat an officer’s

speculation or hunch as “some objective credible reason” for an approach under Level 1.

Similarly, Level 2 is based on a right to inquire that permits targeted questioning without

a criminal activity nexus. Whether driven by animus or implicit bias, the results are the

erosion of the right to be left alone and increased risks to the safety of officers and private

individuals.

So, we come full circle. Drawing on new wisdom in the form of accounts from

persons in heavily policed communities and years of research, we should hold that

police-initiated encounters with individuals are unconstitutional absent reasonable

suspicion of criminality—exactly the approach Mr. De Bour suggested in 1976.

Order reversed and indictment dismissed. Opinion by Chief Judge Wilson. Judges Garcia, Singas, Cannataro and Troutman concur. Judge Rivera concurs in result in an opinion. Judge Halligan took no part.

Decided May 18, 2023

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