The People of the State of New York, Respondent,
Louis De Bour, Also Known as Louis De John, Appellant.
The People of the State of New York, Respondent,
Milton La Pene, III, Appellant.
Court of Appeals of New York
Argued April 1 and May 7, 1976
Decided June 15, 1976
40 NY2d 210
CITE TITLE AS: People v De Bour
[*213] OPINION OF THE COURT
Both of these appeals concern the very sensitive and troublesome issues
relating to the nature and extent of police conduct toward private citizens. In
People v De Bour the order of the Appellate Division should be affirmed; in
People v La Pene the order of the Appellate Division should be reversed.
People v De Bour
This case raises the fundamental issue of whether or not a police officer,
in the absence of any concrete indication of criminality, may approach
a private citizen on the street for the purpose of requesting information.
We hold that he may. The basis for this inquiry need not rest on any indication
of criminal activity on the part of the person of whom the inquiry is
made but there must be some articulable reason sufficient to justify the
police action which was undertaken.
At 12:15 A.M. on the morning of October 15, 1972, Kenneth Steck, a police
officer assigned to the Tactical Patrol Force of the New York Police Department,
was working the 6:00 P.M. to 2:00 A.M. tour of duty, assigned to patrol
by foot a certain section of Brooklyn. While walking his beat on a street
illuminated by ordinary street lamps and devoid of pedestrian traffic,
he and his partner noticed someone walking on the same side of the street
in their direction. When the solitary figure of the defendant, Louis De
Bour, was within 30 or 40 feet of the uniformed officers he crossed the
street. The two policemen followed suit and when De Bour reached them
Officer Steck inquired as to what he was doing in the neighborhood. De
Bour, clearly but nervously, answered that he had just parked his car
and was going to a friend's house.
The patrolman then asked De Bour for identification. As he was answering
that he had none, Officer Steck noticed a slight waist-high bulge in defendant's
jacket. At this point the policeman asked De Bour to unzipper his coat.
When De Bour complied with this request Officer Steck observed a revolver
protruding from his waistband. The loaded weapon was removed [*214] from
behind his waistband and he was arrested for possession of the gun.
At the suppression hearing Officer Steck testified to the above facts noting
that the encounter lasted "a few minutes". On cross-examination,
Officer Steck stated that at the time he believed defendant might have
been involved with narcotics and crossed the street to avoid apprehension.
On the other hand the defendant testified that he never saw the police
until they crossed the street in front of him and that he continued walking
straight ahead. He stated that the police asked him where he was going
and also whether he had any dope in his pockets. He answered that he had
been visiting at his mother's home with relatives. De Bour further
testified that during this encounter, Steck's partner proceeded to
pat his clothing and two or three minutes later Steck found the gun and
fired it in order to see whether it was operable. At the conclusion of
this hearing the court found Officer Steck's testimony to be credible
and denied the motion to suppress. Subsequently De Bour pleaded guilty
to felonious attempted possession of a weapon and was sentenced to a conditional
discharge. The Appellate Division unanimously affirmed, without opinion.
Prior to reaching the merits we must consider the People's contention
that defendant has failed to preserve the issue of the legality of the
officers' initial encounter and questioning of defendant. We find
no merit to their position and consider
People v Robinson (36 NY2d 224) inapposite. That case dealt solely with the failure to object
to the charge and the requirement that for purposes of review such an
objection must be registered at a time when the court is in a position
to rectify the alleged error (CPL 470.05, subd 2). However, when the defendant
moves to suppress evidence and specifically challenges the authority of
the police to accost the defendant as well as the subsequent search we
believe that the issue has been preserved. Nor is review of this case
barred by the holding in
People v Tutt (38 NY2d 1011) where we held that an issue will not be preserved if the
defendant fails to raise it at a time when the People would have an evidentiary
opportunity to counter his assertion. In contrast, here the defendant's
suppression papers asserted,
inter alia, that the initial restraint by the police was effected without consent,
warrant, court order, or other lawful authorization. Neither can it be
said that defense counsel did not pursue this point in view of the effort
on cross-examination of the prosecution's only witness, [*215] Officer
Steck, to ascertain the precise reason he and his partner decided to approach
the defendant. The mere emphasis of one prong of attack over another or
a shift in theory on appeal, will not constitute a failure to preserve
People v Arthur, 22 NY2d 325, 329;
Dewey v Des Moines, 173 US 193, 198).
Turning to the merits, we must consider first the legality of the initial
encounter and then the subsequent intrusion into De Bour's jacket.
The appellant contends that when the two uniformed patrolmen confronted
De Bour and "caused him to stand still" he was seized within
the meaning of the Fourth Amendment. Defendant reasons that he was deprived
of his freedom of movement by the obvious show of authority and the equally
obvious display of force by virtue of his being outnumbered by armed officers.
People v Cantor (36 NY2d 106) appellant urges that a police initiated street encounter
with a citizen amounts to a seizure which is unconstitutional unless supported
by at least a founded suspicion predicated on specific articulable facts
that criminal activity is afoot. The People counterargue that the stop
here was conducted in accordance with the principles enunciated in
People v Cantor (supra). They contend that De Bour's crossing the street to avoid the officers
in an area where there was a high incidence of narcotics crimes triggered
a duty to ascertain whether there was any criminal activity afoot. Both
parties misconstrue the holding in
As noted in
Cantor whether or not a particular search or seizure is to be considered reasonable
requires a weighing of the government's interest against the encroachment
involved with respect to an individual's right to privacy and personal
security (at p 111). Thus, we must consider first whether or not the police
action was justified in its inception and secondly whether or not that
action was reasonably related in scope to the circumstances which rendered
its initiation permissible.
Considering the justification at its inception, we first address the People's
interpretation of the
Cantor opinion. Their argument that the patrolmen were authorized to ascertain
whether there was any criminal activity is a sheer bootstrap. Before the
police may stop a person pursuant to the common-law right to inquire there
must exist at that moment a founded suspicion that criminal activity is present
(People v Cantor, supra; People v Rosemond, 26 NY2d 101). The police may not justify a stop by a subsequently acquired
suspicion [*216] resulting from the stop. This reasoning is the same which
refuses to validate a search by what it produces (e.g.,
People v Scott D., 34 NY2d 483, 490). To validate this stop under the common-law power to
inquire, we must examine the knowledge possessed at that moment and any
reasonable inferences. Although this analysis involves a less stringent
degree of belief than probable cause, it should be approached in the same
manner so as to permit the use of familiar signposts as points of reference.
We have frequently rejected the notion that behavior which is susceptible
of innocent as well as culpable interpretation, will constitute probable cause
(People v Davis, 36 NY2d 280;
People v Oden, 36 NY2d 382;
People v Russell, 34 NY2d 261;
People v Corrado, 22 NY2d 308). It is equally true that innocuous behavior alone will not
generate a founded or reasonable suspicion that a crime is at hand. (Compare
People v Martinez, 37 NY2d 662, and
People v Allende, 39 NY2d 474, with
People v Singleteary, 35 NY2d 528, and
People v Green, 35 NY2d 193.) Here, we agree with the appellant that this encounter was
supported by less than reasonable suspicion and consequently would not
justify a stop involving actual or constructive restraint.
We turn now to the appellant's interpretation of
Cantor (supra). Contrary to the appellant's assertions,
Cantor should not be read as a blanket prohibition of all police-citizen encounters
conducted in the absence of probable cause or reasonable suspicion based
on concrete observations. To be sure, police officers may not seize an
individual, either physically or constructively, without some articulable
(People v Cantor, 36 NY2d 106, 111, supra.;; Terry v Ohio, 392 US 1). However, not every encounter constitutes a seizure.
We have defined a seizure of the person for constitutional purposes to
be a significant interruption with an individual's liberty of movement
(People v Cantor, 36 NY2d 106, 111, supra.;). Our recent decisions have emphasized the primacy
of the right to be free from aggressive governmental interference. In
Cantor (supra) the actions of three plain-clothes officers in surrounding the defendant
with revolvers drawn and blocking his vehicle with their own was considered
an unconstitutional seizure. Similarly, in
People v Ingle (36 NY2d 413, 418) where a motorist was "accosted" and "restrained"
for a "routine traffic check" we held that this constituted
a "limited seizure within the meaning of constitutional limitations"
[*217] (see, also,
People v Martinez, 37 NY2d 662, supra.;, and
People v Allende, 39 NY2d 474, supra.;). The conduct of the policemen in the instant case
presents a sharp contrast to these last-mentioned cases. Here De Bour
was merely approached and questioned by two uniformed officers whose conduct
bespoke no violent or forcible apprehension. Clearly then, De Bour was
not seized in the sense that Cantor and Ingle were.
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. It is in this vein that the defendant
urges that his right as a citizen to walk the streets unimpeded by the
State has been trammelled.
While we agree that the patrolmen here had no articulable reason to seize
forcibly, or arrest the defendant, we cannot say that the defendant's
right to be free from an official interference by way of inquiry is absolute.
Were we to carry the defendant's interpretations of
Cantor and the Constitution to their logical extreme we would have to conclude
that when the police possess a need or desire to initiate an encounter
with a private individual they must be prepared to seize him or else do
nothing. This approach is hardly reasonable and if adopted would probably
lead to an overcompensation in the form of a dilution of the standards
embracing reasonable suspicion or probable cause. "The history of
the use, and not infrequent abuse, of the power to arrest cautions that
a relaxation of the fundamental requirements of probable cause would 'leave
law-abiding citizens at the mercy of the officers' whim or caprice' "
(Wong Sun v United States, 371 US 471, 479;
Henry v United States, 361 US 98). Common sense and a firm grasp of the practicalities involved
compel us to reject an all or nothing approach. The crucial factor is
whether or not the police behavior can be characterized as reasonable
which, in terms of accepted standards, requires a balancing of the interests
involved in the police inquiry
(People v Ingle, 36 [*218] NY2d 413, 419, supra.;
; Terry v Ohio, 392 US 1, 20-21, supra.;; Camara v Municipal Ct., 387 US 523, 536- 537;
People v Cantor, 36 NY2d 106, supra.;; People v Kuhn, 33 NY2d 203, 209).
The role of the police in our society is a multifaceted one. On the one
hand the police are mandated to enforce the law; yet the extent to which
this authorizes the police to investigate or to prevent crime is ambiguous
at best. On the other hand, and more important, we must recognize the
multiplicity and complexity of tasks assumed by the police. As public
servants, the police perform the lion's share of services expected
of local government. Among other functions, the police in a democratic
society are charged with the protection of constitutional rights, the
maintenance of order, the control of pedestrian and vehicular traffic,
the mediation of domestic and other noncriminal conflicts and supplying
emergency help and assistance (see ABA Standards for the Urban Police
Function 1.1, subd b; see, also, La Fave, "Street Encounters"
and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich L Rev
40, 61-62). To consider the actions of the police solely in terms of arrest
and criminal process is an unnecessary distortion. We must take cognizance
of the fact that well over 50% of police work is spent in pursuits unrelated
to crime (see, generally, Wilson, Varieties of Police Behavior, at p 19;
Misner, Enforcement: Illusion of Security, 208 The Nation 488; Bercal,
Calls for Police Assistance, 13 Am Behavioral Scientist 681). Consequently
unrealistic restrictions on the authority to approach individuals would
hamper the police in the performance of their other vital tasks. This
is not to say that constitutional rights to privacy and freedom from unreasonable
searches and seizures must be abandoned to accommodate the public service
aspect of the police function. The overriding requirement of reasonableness
in any event, must prevail.
Generally, in the performance of their public service functions, not related
to criminal law enforcement, the police should be given wide latitude
to approach individuals and request information. For instance, no one
would quarrel with a police officer's right to make inquiry of passers-by
to find the parents of a lost child. We have consistently recognized the
obligation of policemen to render assistance to those in distress (e.g.,
People v Mitchell, 39 NY2d 173, and authorities cited therein). However, when police officers
are engaged in [*219] their criminal law enforcement function their ability
to approach people involves other considerations and will be viewed and
measured by an entirely different standard of reasonableness. Unfortunately,
there is scant appellate authority on this subject, even the majority of the Supreme Court in the
Terry trilogy explicitly avoided resolving the constitutional propriety of an
(Terry v Ohio, 392 US, at p 19, n 16, supra.;, but see the separate concurrences of Justices Harlan and White, who maintained
that there is no doubt that a policeman can address questions to anyone
on the street, at pp 32, 34). Nevertheless 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, make
it clear that the police have the authority to approach civilians. While
the extent of this power may defy precise definition it would be unrealistic
to say it does not exist at all.
Due to the tendency to submit to the badge and our belief that the right
to be left alone is "too precious to entrust to the discretion of
those whose job is the detection of crime"
(McDonald v United States, 335 US 451, 455), a policeman's right to request information while
discharging his law enforcement duties will hinge on the manner and intensity
of the interference, the gravity of the crime involved and the circumstances
attending the encounter. Thus, while it might be reasonable for the police
at the scene of a crime to segregate and interview witnesses, the same
procedures would not be justified if done on a whim or caprice (see
People v Ingle, 36 NY2d [*220] 413, 420, supra.;). One aspect of law enforcement warrants
particular mention and that is the area of crime prevention. Since this
function is highly susceptible to subconstitutional abuses it will be
subject to the greatest scrutiny; for whereas a policeman's badge
may well be a symbol of the community's trust, it should never be
considered a license to oppress.
Applying these principles to the instant case, we believe that the police
officers legitimately approached De Bour to inquire as to his identity.
The encounter here was devoid of harassment or intimidation. It was brief
lasting only a few minutes and the questions were circumscribed in scope
to the officers' task as foot patrolmen. Significantly, the encounter
did not subject De Bour to a loss of dignity, for where the police degrade
and humiliate their behavior is to be condemned. In addition, the crime
sought to be prevented involved narcotics and the Legislature has declared
that to be a serious crime (see
People v Broadie, 37 NY2d 100). Moreover, the attendant circumstances were sufficient to
arouse the officers' interest. The encounter here occurred after midnight
in an area known for its high incidence of drug activity
(People v Oden, 36 NY2d 382, 385, supra.;) and only after De Bour had conspicuously crossed the street to avoid walking
past the uniformed officers. In evaluating the police action in light
of the combined effect of these factors we conclude that rather than being
whimsical it was reasonable. Hence the police officers were authorized
to make the brief limited inquiry that they did.
Our next concern is whether or not the pistol was properly confiscated.
The appellant, relying on
People v Sanchez (38 NY2d 72) contends that the undefined bulge at the waistband [*221]
did not justify Officer Steck's request that he unzip his jacket.
We cannot agree. Our holding in
Sanchez (supra) is distinguishable on two grounds. In the first place the officer in
Sanchez did not testify that the hard object he accidentally touched felt like
a weapon (at pp 74-75). Here, the patrolman testified that when he noticed
the bulge at the waistband he "took it to be a gun". The location
of the bulge is noteworthy because unlike a pocket bulge which could be
caused by any number of innocuous objects, a waistband bulge is telltale
of a weapon (compare
People v Watson, 48 AD2d 815). Viewed in the context of a late night encounter on a lonely
street coupled with the apparently evasive crossing of the street, the
officers should have been expected to request clarification as to the
source of the waistband bulge which was in fact a .38 caliber Smith &
Wesson revolver. Secondly,
Sanchez is inapposite by virtue of the extent of the intrusion. The patrolman
did not throw the defendant against the wall and thrust his hand into
his pockets as in
Sibron v New York, 392 US 40) nor did he embrace the defendant in a bear hug
(People v Bronk, 31 NY2d 995). In contrast the intrusion here was extremely minimal—
Officer Steck simply requested that De Bour open his jacket and the officer
never touched him until after he saw the pistol butt protruding from the
belt. In our view, the officer's justifiable apprehension that De
Bour was armed coupled with the minimal intrusion rendered the police
action consonant with the respect and privacy of the individual and as
such was reasonable.
Having concluded that the initial encounter was lawful in its inception
and that the subsequent intrusion was reasonably limited in scope and
intensity we agree that there should have been no suppression and the
order of the Appellate Division should be affirmed and the conviction
of De Bour sustained.
People v La Pene
This case presents a counterpoint to
De Bour. Here too, the police had a suitable predicate, an anonymous phone tip,
to approach the defendant and make inquiry. However, neither that predicate
nor ensuing events or exigencies amounted to reasonable suspicion so as
to justify the precipitate frisk of this defendant. Consequently the weapon
seized as a result of that search should have been suppressed.
The evidence adduced at the suppression hearing reveals [*222] that on
the morning of December 4, 1971 Officer Dennis Sheeran and his partner
were assigned to uniformed radio motor patrol in Queens, New York. At
about 1:45 A.M. they received a radio message from central communications
that there was a male Negro with a gun, wearing a red shirt, in a place
called Jean's Bar. This information was the result of an anonymous
phone call. The policemen responded and arrived at the scene simultaneously
with another radio patrol unit. After noticing no unusual conditions outside,
the four uniformed officers entered the bar. One officer stationed himself
at the front, another at the side. Officer Sheeran and his partner went
directly to the rear of the bar as soon as they saw the defendant, Milton
La Pene, who was wearing a red shirt. At this time La Pene was standing
in the back of the establishment with his hands in his pockets and was
apparently engaged in conversation with some other patrons. La Pene was
wearing a red shirt or overblouse which was worn outside his trousers
and draped to a point below his waist.
An examination of the record reveals that the policemen did nothing to
verify or substantiate the information received over the radio. Neither
the patrons nor the bartender were approached or questioned. Officer Sheeran
conceded on cross-examination that on entering the bar he made no attempt
to ascertain whether or not there were other Black men present wearing
red shirts. He further testified that La Pene's conduct was neither
suspicious nor furtive and that he did not see a bulge at defendant's
waist or any other indication that La Pene was armed. Nevertheless, without
asking a single question Officer Sheeran ordered the defendant to "freeze"
and raise his hands. The policeman then frisked defendant and discovered
a .25 caliber Titan automatic pistol containing seven live rounds. La
Pene was immediately handcuffed and arrested for felonious possession
of a weapon.
After his motion to suppress the handgun was denied, Le Pene pleaded guilty
to attempted felonious possession of a weapon and was sentenced to probation.
A divided Appellate Division affirmed. The issue before our court is whether
or not the anonymous telephone tip which was received in this instance
was sufficient to justify the ensuing police conduct.
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
(People v Cantor, 36 NY2d 106, [*223] 111). We bear in mind that any inquiry into the propriety
of police conduct must weigh the interference it entails against the precipitating
and attending conditions. By this approach various intensities of police
action are justifiable as the precipitating and attendant factors increase
in weight and competence. The minimal intrusion of approaching to request
information is permissible when there is some objective credible reason
for that interference not necessarily indicative of criminality
(People v De Bour, supra). The next degree, the common-law right to inquire, is activated by a founded
suspicion that criminal activity is afoot and permits a somewhat greater
intrusion in that a policeman is entitled to interfere with a citizen
to the extent necessary to gain explanatory information, but short of
a forcible seizure
(People v Cantor, 36 NY2d, at p 114, supra.;; People v Rosemond, 26 NY2d 101;
People v Rivera, 14 NY2d 441, 446, and authorities cited therein). Where a police officer
entertains a reasonable suspicion that a particular person has committed,
is committing or is about to commit a felony or misdemeanor, the CPL authorizes
a forcible stop and detention of that person (CPL 140.50, subd 1; see
Terry v Ohio, 392 US 1;
People v Cantor, supra). A corollary of the statutory right to temporarily detain for questioning
is the authority to frisk if the officer reasonably suspects that he is
in danger of physical injury by virtue of the detainee being armed (CPL
140.50, subd 3). Finally a police officer may arrest and take into custody
a person when he has probable cause to believe that person has committed
a crime, or offense in his presence (CPL 140.10). This synopsis 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.
In the instant case the information possessed by the police along with
the attendant circumstances including any exigencies must be evaluated
in order to assess the legality of the police action. Since the right
to request information as delineated in
De Bour (supra) and the common-law right to inquire do not extend to a frisk, the only
possible justification for the instant frisk may be in the statutory right
of the police to "stop and frisk". The People, unable to provide
elucidation as to the caller or the caller's basis of knowledge, rely
solely on the information transmitted by the anonymous phone call as supplying
reasonable suspicion. We find this contention unpersuasive [*224] in light
of our recent holdings in
People v Lypka (36 NY2d 210),
People v Green (35 NY2d 193) and
People v Johnson (30 NY2d 929). The
Lypka case focused on the issue of whether or not a police officer is entitled
to assume the veracity of a radio bulletin from a department or fellow
officer and to proceed on the strength of that communication. We held
that when the bulletin prima facie furnishes probable cause, the knowledge
possessed by the sender should be imputed to the receiver who will be
presumed to act with the requisite probable cause (at p 213). We noted
however that when challenged by a suppression motion this presumption
would disappear and the People would be required to demonstrate that the
sender had probable cause (at p 214) or that the independent observations
of the searching officer were sufficient to justify the action taken (at
p 213, n 2, citing
People v Riseman, 29 NY2d 278, 284).
Although we are considering a less stringent degree of belief, i.e., reasonable
suspicion, a parity of reasoning compels similar analysis in the case
at bar. Our first inquiry is whether the information communicated was
sufficient, prima facie, to establish reasonable suspicion. If the information
was insufficient prima facie we must examine the attendant circumstances
and exigencies to determine whether or not an independent basis of reasonable
suspicion existed. Stated differently, the crucial question is what degree
of belief was reasonably generated by the information transmitted over
the radio? On the record before us, we do not believe that it was sufficient
to sustain a reasonable suspicion that Milton La Pene unlawfully possessed
a concealed handgun. In arriving at this conclusion we have examined the
quality and content of the information communicated to the police officers
and the circumstances surrounding the encounter.
As to the information transmitted, it is significant though not determinative
to note that it was garnered from an anonymous source. Not only was this
information imparted by a person whose identity was unknown, it was communicated
via a nonpersonal medium. Tips of this nature are of the weakest sort
since no one can be held accountable if the information is in fact false
(Penal Law, § 240.50) and there is no way to assure, by way of intangibles
such as voice, facial expression or emotional state, that the information
was communicated and received accurately and was believable (compare
People v Green, 35 NY2d 193, supra.;, where an unknown [*225] informer personally approached the officer and
pointed to the defendant as he walked toward them; see, also,
People v Bronk, 31 NY2d 995, affg 66 Misc 2d 932). Judicial uneasiness with anonymous
information has recently been expressed by our court and the United States
Supreme Court (see, e.g.,
People v Green, 35 NY2d, at p 196, supra.;; People v Taggart, 20 NY2d 335, 343;
Adams v Williams, 407 US 143, 146). Indeed our court in
Taggart characterized the use of anonymous information to justify intrusive police
action as "highly dangerous"
(People v Taggart, 20 NY2d, at p 343, supra.;).
The information under consideration here is also deficient in content inasmuch
as there was no specificity or individualized detail in the description
given. While it is true that in some instances a single distinctive feature
will suffice to indicate a particular person, that was not the case here
where the tipster merely indicated that the suspect was a Black man with
a red shirt. Couched in vague and general terms this information presented
relatively little guidance to those acting upon the tips; thereby raising
the real possibility that La Pene was not the person the informer meant.
This possibility is especially bothersome in view of the police officer's
candid admission that he did not check to see whether there were other
Black men in red shirts present, and a concession that there might well
have been. In addition, while the informer reported that the suspect had
a gun in his possession a report of possession by itself will not authorize
police action of the intensity resorted to here. As noted in
Green (supra) "[t]here is a difference of significant degree between a report only
that a person has a gun in his possession and another report that a person
not only has a gun but that he has just used it for the commission of
a crime" (35 NY2d, at p 196). Of course, where the report indicates
that the person has used the weapon to menace or threaten or will use
the weapon if stopped for questioning or the weapon has such potential
destructive power as to dispel any possible legitimate possession, then
personal and public safety may well mandate a more intensive police intrusion.
We are cognizant of the fact that police-citizen encounters are dynamic
situations during which the degree of belief possessed at the point of
inception may blossom by virtue of responses or other matters which authorize
and indeed require additional action as the scenario unfolds. However,
the instant confrontation was not such a situation and the circumstances,
[*226] taken independently or cumulatively, did not supply the requisite
degree of belief to sustain a frisk.
As previously described the situation confronting Officer Sheeran and his
brother officers was not one fraught with tension or hostility. They entered
a bar which has not been characterized as being located in a high-crime
area and about which they had received no reports of criminal or dangerous
activity, other than the anonymous phone call. In contrast to the patrolman in
De Bour who saw the waistband bulge, Officer Sheeran testified that he did not
notice any external sign of the weapon on La Pene's person. In addition,
the arresting officer acknowledged that La Pene was not acting in a suspicious
or furtive manner, a factor which would have lent credence to the tip.
Moreover, there was no pressing urgency to act in order to defuse a volatile
situation or to prevent escape. Despite this absence of exigency, the
four policemen approached the first person they spotted who fit the vague
description, ordered him to "freeze" and then frisked him—all
without asking a single question (compare, e.g.,
People v Rosello, 36 AD2d 595;
People v Joslin, 32 AD2d 859).
The security and constitutionally guaranteed rights of our citizenry would
be severely eroded if we were to tolerate this type of police action predicated
on no more than an anonymous tip. Certain tips are so devoid of reliability,
either inherently or by lack of corroborating factors, that they warrant
either no response at all or necessitate further inquiry before intrusive
police measures would be permissible
(Adams v Williams, 407 US, at p 146, supra.;). Had the police proceeded with the inquiry
to which they were entitled, they may well have been able to determine
whether or not a crime was occurring and whether or not La Pene was the
perpetrator. As it was, the police resorted to the type of aggressive
behavior which cannot be condoned.
Accordingly, the judgment and order of the Appellate Division with respect
to La Pene should be reversed and the indictment dismissed.
People v De Bour and concurring in
People v La Pene).
In my view, by its affirmance of the conviction of Louis De Bour, the majority
today sanctions detention by the police, without any articulable reason,
of any person, no matter how innocent or innocent-appearing he may be,
simply because, while walking along a city street at night, [*227] he
crosses from the sidewalk on one side of the street to the sidewalk on
the other. In so doing, it drains a great deal of force from one of our
most hallowed rights—the "right of the people to be secure
in their persons *** against unreasonable searches and seizures"
(NY Const, art I, §12; US Const, 4th Amdt).
De Bour decision is no less disturbing because it is handed down in concert with
a well-warranted reversal of the conviction in
People v La Pene. For, curiously, the
La Pene case, though it suffers from a fatal flaw, at least presents a well-articulated
reason for the detention there—the report of an ongoing violation
of the criminal law, information as to where the suspect was then to be
found, and a description of the suspect by skin color and conspicuous
shirt color, which, when added to the elements of time and place, provided
the police with the coincidence of four verifiable facts before they detained
the defendant. Though the anonymity of the source of the information,
no matter how accurate it in fact turned out to be, disqualified it from
serving as a basis for the intrusion on La Pene's privacy
(People v Taggart, 20 NY2d 335, 343), the verified facts, five in number if we include possession
of the gun, were five more than existed in the
De Bour case. A fortiori,
De Bour should certainly be reversed, our court being called upon, far more than in
La Pene, to act as "the instrument by which a free society imposes on itself
the seldom welcome, sometimes dangerous, always indispensible restraints
that keep it free" (Amsterdam, Perspectives on the Fourth Amendment,
58 Minn L Rev 349, 353).
Generally, for the fulfillment of that function, a balance needs to be,
and long ago was, struck, a balance between society's interest in
encouraging law enforcement and society's interest in fostering individual
privacy and personal inviolability. (See
Brinegar v United States, 338 US 160, 176.) In striking the balance, our Country might have elected
to elevate aggressive and efficient police activity to a pre-eminent position.
While such a model prevailed in many other societies, however, the founding
fathers rejected it, believing—and history has amply borne them
out—that the price in personal freedom which such a choice exacts
far outweighs any transitory gains which would flow from a presumed increased
capacity to enforce the law.
On the other hand, our Nation could have subordinated police activity to
abstract notions of individual liberty at, of [*228] course, a considerable
social cost of its own. It did not adopt that course either, choosing
a middle one instead.
Similarly, conflicting alternatives have been and, now in this case, are
pressed upon us in the narrower area of investigative street encounters.
Libertarians have argued that no police-citizen encounter should ever
be permitted (including a brief investigative street encounter) in the
absence of traditional probable cause, while law enforcement officials
urge that the limited intrusion created by a brief investigative encounter
justifies removing it from all constitutional constraints, thus authorizing
unlimited street "stops" by the police. Again, we have accepted
neither extreme. Instead, in
Terry v Ohio (392 US 1), while the Supreme Court approved the concept of investigative
street encounters on less than probable cause, it insisted that such an
encounter be preceded by activity which gives rise to an "articulable
suspicion" that criminal activity has, in fact, occurred
(Terry v Ohio, 392 US 1, 31 [Harlan, J., concurring], supra.;). Thus, mere subjective
hunch cannot justify a police-citizen encounter in the absence of objective
evidence which would lead a reasonable person to suspect that criminal
activity was afoot. The
Terry court recognized that, unless such an objective standard is respected,
no principled limitation would exist on the capacity of the police to
accost our citizens, and a critical bulwark of liberty would be lost.
Accordingly, the crucial question in this case is whether the initial
investigative detention of appellant was justified by anything other than
subjective hunch. Put another way, we must decide whether to validate
and, thus, to encourage, police intrusions into the lives of people when
triggered only by the kind of innocuous conduct which gave rise to the
"stop" of the appellant here.
So measured, there was no reason for the police to confront De Bour. They
lacked "probable cause", "reasonable cause", or, for
that matter, any cause for his detention as he walked along the street,
so to speak, minding his own business. They lacked any, that is unless
a person's act in choosing to cross a street when in sight of a uniformed
police officer in and of itself may be said to give rise to an "articulable
suspicion" of criminal activity
(Sibron v New York, 392 US 40, 64; cf.
Terry v Ohio, supra, pp 22-23). For, even if it be postulated that less evidence is needed
to supply cause for a brief on-the-street detention than for taking an
individual to the station, there still must be a recognizable and justifiable
[*229] cause (see La Fave, "Street Encounters" and the Constitution,
67 Mich L Rev 39, 54).
Indeed, it is interesting to note the complete absence of any rationale
for the officers' conduct, irrespective of whether such rationale
could ever be a permissible basis for a compelled stop or not. De Bour
was alone. He was on a public street. It was normally lit. The two policemen
who accosted him had received no report that any crime had been committed,
was being committed or was about to be committed in that area (cf.
Adams v Williams, 407 US 143), nor did they have "reasonable grounds" to suspect
De Bour of having committed one. They were engaged in no ongoing search for a specific suspect whether
resembling defendant or not, and they had not the slightest impression
that defendant might be armed. Though, as the officer-witness testified,
they were in search of narcotics violations and may have had a search
of De Bour in mind in accosting him, they had no reason for suspecting
that he possessed any drugs, as indeed he did not (cf.
Sibron v New York, 392 US 40, 69, supra.;). There was nothing conspicuous, hurried or furtive
in his walk, either before or after he started crossing the street, or
even when the officers came toward him. Nor was there anything unusual
in his attire. He carried no packages or other objects which could possibly
invite curiosity. He had not loitered or engaged in any suspicious conduct.
He did not try to avoid the officers as they crossed towards him. Though
the police never gave him any reason for stopping and questioning him,
he answered all their questions clearly, intelligently and responsively,
to be sure as might have been expected of one who was then a college student
and tutor. He had not been seen to violate any ordinance or other law.
There was no reason for quick action to prevent injury to or destruction
of evidence. Nor was the later claim of high incidence of drugs in the
area where De Bour was stopped (see
People v Davis, 36 NY2d 280) reason to permit his dragnet-like apprehension. In short,
there was no degree of belief reasonably generated on which could be founded
suspicion "that criminal activity may be afoot"
(Terry v Ohio, 392 US 1, 30, supra.;).
There was not even any claim by the police that when they [*230] stopped
De Bour they were seeking to "control pedestrian or vehicular traffic"
or were engaged in the "mediation of domestic and other noncriminal
conflicts", or were engaged in the "supplying of emergency help
and assistance", or making casual inquiry as to the time of day or
direction of travel, or seeking to find "the parents of a lost child"
or striking up a casual conversation or engaged in any other of the activities
hypothecated by the majority. In short, the accosting, stopping and detention
of De Bour when it occurred, and assuming it was not undertaken simply
as an act of harassment, can have been nothing but "the product of
a volatile or inventive imagination"
(Terry v Ohio, 392 US 1, 28, supra.;) instead of the articulable suspicion of criminal activity that is the
required precondition to any interference by the police with a citizen's
freedom of movement.
The obvious purpose of the "articulable suspicion" requirement
is to place some meaningful check on the ability of the police to detain
and question a person on the street. Were we content to entrust the protection
of Fourth Amendment values to the subjective expertise of the police,
no such requirement would ever have been promulgated. To a police officer,
trained to be wary and conditioned to be suspicious, the act of crossing
a street may seem questionable. However, it is certainly not the type
of furtive activity which should authorize an intrusion into the life
of a citizen. If merely crossing a street can justify police detention
of a citizen for questioning, it is difficult to imagine what type of
activity exists which would not authorize the initiation of such a confrontation.
In a very real sense, the objective standard of "articulable suspicion"
will have been gutted and replaced by little more than the existence of
a subjective hunch. Were that to occur, we would have utterly subordinated
Fourth Amendment values to law enforcement concerns by adopting the extreme
law enforcement societal model which removes police-citizen street interrogations
from any constitutional constraints.
The conclusion that there was such interference with De Bour is as inescapable
as was the absence of cause. Even if we disregard the defendant's
own completely exculpatory testimony and confine ourselves, as we must
for this purpose, to the testimony of the single one of the two uniformed
and armed officers involved who took the stand, we find that his description
of how he and his brother officer, command in their tone and authority
in their approach, crossed directly [*231] and deliberately into De Bour's
path for the purpose of intercepting him, contained the following unequivocal
language: "I crossed over with my partner and we stopped him, stopped
the man". In answer to the direct question, "And at that point,
at the time when you were asking him about what he was doing in the neighborhood,
had you stopped his motion, had you caused him to stand still?" his answer was an unqualified "Yes" (emphasis added). At another
point, the officer testified that when De Bour, who had been completely
responsive to questions, including those as to his points of departure
and destination, turned out not to be carrying any identification, which
of course was no dereliction, one of the two police officers blocking
his path moved behind him so that he was no longer just forcibly stopped
but surrounded as well (cf.
People v Allende, 39 NY2d 474;
People v Cantor, 36 NY2d 106). And, at still another point, the officer-witness was uncertain
whether his nontestifying partner had had his gun out before then, "He
might have had it out".
It is difficult to see how this compelled stop squares with the admonition
that "whenever a police officer accosts an individual and restrains
his freedom to walk away, he has 'seized' that person"
(Terry v Ohio, supra, at p 16). And, since it is undisputed that, until after the stop, there
was no cause for apprehension that the defendant possessed a weapon, the
weapon disclosed by later search was within the protecting embrace of
the exclusionary rule
(People v Rodriquez, 11 NY2d 279, 286; cf.
People v Malinsky, 15 NY2d 86), intended as it is to restrain the excessively zealous hands
of well-intentioned persons who have forgotten that a good end does not
justify an illicit means. Accordingly, the gun should have been suppressed.
It is unnecessary therefore, on my view of the case, to determine whether,
if there had been sufficient cause for the stop, the search which followed
would have been lawful. When, but only when, the police have constitutional
grounds to insist on detaining a citizen, there is the companion right
to frisk a detainee in order to protect the officers against the presence
of weapons. Suffice it to say that, even if such preconditions had prevailed,
the legality of the search here is hardly beyond question. Though the
bulge was only "slight" there was no frisk to ascertain its
nature before defendant was compelled to open his jacket. This was especially
odd since the male waistline is precisely in the area where thick quilted
Air Force jackets of the sort defendant [*232] was wearing tend to bunch
and the clutter of contents contained in most men's trouser pockets
is located. And, among other things, while the officer testified at the
suppression hearing that he found the gun after he ordered the defendant
to open his jacket, the notation in his memorandum book, made on the occasion
of the arrest, was that the gun was in plain view with the jacket already
open, an inconsistency strongly suggesting, to say the least, improvisation
of one or both of these versions.
Finally, I would state that the proscription of the Fourth Amendment is
not dependent on the length of the detention. The liberty it guarantees
is not quantitative; its essence is qualitative. It recognizes the fact
that any unjustified and unauthorized interference with one's freedom
of movement is an impermissible imposition, for forced contacts with those
looking for damaging information are not merely highly unpleasant but
deeply disturbing to one's sense of security. For the tone of life
and spontaneity of spirit which characterizes a free society could not
long survive uncontrolled police detention and search of the populace.
I do not believe these are beyond our power—and our sworn duty—to
prevent. If we do not do so, who effectively will "police the police"?
(Reich, Police Questioning of Law Abiding Citizens, 75 Yale LJ 1161; La
Fave, Improving Police Performance Through the Exclusionary Rule—Part
I: Current Police and Local Court Practices, 30 Mo L Rev 391, 398-401.)
For these reasons, while I agree with the court's disposition of the
La Pene case, I dissent and would reverse in
Chief Judge Breitel and Judges Jasen, Gabrielli and Jones concur with Judge
Wachtler; Judge Fuchsberg dissents and votes to reverse in a separate
opinion in which Judge Cooke concurs.
People v De Bour: Order affirmed.
Chief Judge Breitel and Judges Jasen, Gabrielli and Jones concur with Judge
Wachtler; Judge Fuchsberg concurs in a separate opinion in which Judge
People v La Pene: Order reversed, etc. [*233]
Footnote 1: One court has opined that the dearth of authority is attributable to the
fact that criminal defendants rarely challenge the right of the police
to confront them
(United States v Bonanno, 180 F Supp 71, 78). Another, more plausible explanation, one which was
alluded to previously is that these police practices are low visibility
tactics (see, e.g.,
Sibron v New York, 392 US 40, 52). Nevertheless it is our view that the authority may be
inferred from various decisions. Traces of this authority are apparent
in the cases involving the vaguely formulated common-law right of inquiry
People v Rosemond, 26 NY2d 101, supra.;
; People v McKie, 25 NY2d 19;
People v Entrialgo, 14 NY2d 733, affg 19 AD2d 509). The most obvious context in which this
authority inferentially appears is the determination of when custodial
interrogation exists for purposes of rendition of
Miranda warnings (e.g.,
People v Rodney P. [Anonymous], 21 NY2d 1). We also discern the outer limit of the right to ask questions
in those cases involving arrests for minor offenses. A refusal to identify
oneself or explain one's presence has been rejected as a predicate
for arrest in recent cases (see, e.g.,
People v Stokes, 32 NY2d 202;
People v Schanbarger, 24 NY2d 288;
People v Merolla, 9 NY2d 62; see, generally, ALI Model Code of Pre-Arraignment Procedure,
[P. O. D.], § 110.1, and commentary, at p 257 et. seq. ).
Footnote 2: It is also instructive to note at this point that law enforcement agencies
utilize a wide variety of techniques to eradicate conditions conducive
to criminal activity and to create an atmosphere of security (see, generally,
G. O'Connor & C. Vanderbosch, The Patrol Operation). To a certain
extent these methods may infringe on the privacy and freedom of individuals.
Unfortunately, where the police are motivated by factors other than prosecution,
the threat of the exclusionary rule is to no avail (see
Terry v Ohio, 392 US, at pp 12-15, supra.;; see, also, La Fave, 67 Mich L Rev 39, 59-61). Even when prosecution results,
the exclusionary rule is an ineffective means of reviewing offensive police
practices since these practices are frequently insulated by the process
of plea bargaining (Amsterdam, The Supreme Court and the Rights of Suspects
in Criminal Cases, 45 NYU L Rev 785). The only reason that such "subconstitutional
lawlessness" is mentioned is to highlight the inability of the courts
to deal with this problem effectively and to suggest that the solution
may be in the strengthening of administrative control (Breitel, Controls
in Criminal Law Enforcement, 27 U Chi L Rev 427; see, also, ABA Standards
for the Urban Police Function, 4.1).
Footnote 3: Such are the minimal requirements of New York's "stop-and-frisk"
statute (CPL 140.50). Similar standards are enunciated in the Uniform
Arrest Act (§ 2), see Warner, Uniform Arrest Act (28 Va L Rev 315,
343- 347) and the American Law Institute's Model Code of Pre-Arraignment
Procedure (§ 110.2).