Please Scroll Down to See Forums Below 
Suppose you step out the gym, bag in hand, and some cop the size of Ronnie Coleman shouts at you to stop, and starts asking questions. What are your rights?
Well, to address these issues, I wrote the following essay in part from sources culled from my friend, criminal defense attorney Rick Collins' treatise, LEGAL MUSCLE: Anabolics in America. Specifically, chapters 7 and 9, Winny Warrants and Probable Cause and Fast Cars and Anavars, respectively. The majority of the case law cited are Supreme Court cases. I hope that you find it informative.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."--U.S. Const. amend. IV.
Not every police-civilian interaction implicates the Fourth Amendment "probable cause" or "reasonable suspicion" standards. For example, a non-coercive conversation between an officer and a civilian does not require any articulable basis under the Fourth Amendment. For Fourth Amendment analysis to apply, a "seizure of the person" must occur.
A seizure is a physical taking of possession such that they are not free to leave or when a reasonable person would believe such. See California v. Hodari, 499 U.S. 621 (1991).What constitutes a seizure is highly fact dependent. Detaining a person to question them is a seizure [Reid v. Georgia 448 U.S. 438 (1980)] as well as to ascertain their identity [Brown v. Texas, 443 U.S. 47 (1979). (Emphasis mine.) Stopping an automobile and detaining its occupants is a seizure [Colorado v. Bannister, 449 U.S. 1 (1980); Delaware v. Prouse, 440 U.S. 648 (1979)]. (The body of case law surrounding the Fourth Amendment right is voluminous; what a government actor can or cannot properly search or seize in a given case is ultimately a question of law for the court.)
The least intrusive form of constitutional "seizure," but one which still requires "reasonable suspicion," is a Terry "stop."
Terry v. Ohio
In the landmark case of Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that a police officer may detain a person briefly on the street for limited interrogation in the absence of "probable cause," so long as a lesser standard of "reasonable suspicion" has been satisfied. To justify a patdown frisk, a police officer must have a reasonable fear that he or she "is dealing with an armed and dangerous individual. Under Terry, a "stop" occurs when, "by means of physical force or by show of authority." A police officer briefly detains a civilian such that "a reasonable person would have believed that they was not free to leave.
For a police officer properly to effect a Terry "stop," the officer must be able to articulate "reasonable suspicion." "Reasonable suspicion" is a reasonable belief on the part of the officer, based on experience, observations, and/or information from others, that criminal activity is "afoot" sufficient to warrant police intervention. (Refer also to Illinois v. Gates 462 U.S. 213 (1983) for a comparison to probable cause as being established by the "totality of the circumstances.)
Police may not merely stop a car and question its occupants simply to get acquainted (I’ve heard some LAPD police officers refer to this colloquially as “jamming.” I imagine that this is the good guys way of taking the streets back from the hoodlums who will stop a rival gang member and “sweat” him. “Sweating,” I’m told, is when gang members will confront a stranger whom they believe to be a member of a rival gang). Police may stop a vehicle when there is reasonable suspicion to believe the operator or occupants have committed a crime. [Delaware v. Prouse, id.] Such an investigatory stop must satisfyt the following two-part standard [United States v. Cortez 449 U.S. 411 (1981)]:
1. Based upon the totality of the circumstances the officer must make an assessment of the situation;
2. The totality of the circumstances must raise a suspicion that the persons being stopped are engaged or about to be engaged in some wrongdoing.
More than a hunch is needed to make a stop, of course a traffic infraction is sufficient to stop the vehicle.
The law of Terry provides a baseline federal constitutional test for "stop & frisk," the "reasonable suspicion" standard, in the absence of which no seizures of the person are permitted. However, the federal standard sets the floor, not the ceiling of constitutional protection. State courts and legislatures may, consistent with the Fourth Amendment, heighten the standard which officers must satisfy, making it more demanding of officers and more protective of civilians, pursuant to principles of their own state constitutions or as matters of their own state policy. New York has done precisely that.
People v. DeBour (State law)
In People v. De Bour, [40 N.Y.2d 210, 386 N.Y.S.2d 375 (1976)], the New York Court of Appeals, using principles of state law, established a more nuanced (and arguably more stringent), multi-tiered standard for evaluating the propriety of police-civilian street encounters. Each progressive level allows "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."
The New York test identifies four levels of police intrusion on an escalating scale. At the first, least intrusive level, an officer may request information from a civilian about his or her identity, reason for being at a particular location, or travel plans, where the request is "supported by an objective, credible reason, not necessarily indicative of criminality."
The second De Bour level is referred to as the "common law right of inquiry." Under the "common law right," an officer may approach and closely question a civilian to the extent necessary to gain explanatory information beyond identity and travel plans. Still, however, the officer may not detain the civilian; the individual always remains free to leave. This second level of intrusion, which falls short of a Fourth Amendment "seizure" (a "stop") sufficient to implicate Terry, does require a founded suspicion that "criminal activity is afoot," and is often referred to as “founded suspicion.” The difference between the De Bour tiers is itself subtle and rests upon the content and number of questions, and the "degree to which the language and nature of the questions transform the encounter from what the courts have described as a merely “unsettling one" under De Bour's first level, to an “intimidating one" under its second.
At the third De Bour level of intrusion, an officer is authorized to detain a civilian against his or her will; in the parlance of Terry, it is here that a "stop" occurs. In New York, a "stop" is authorized only 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 It is important to note that the standard for effecting a "stop" under De Bour and its progeny is somewhat more exacting than the standard under Terry. By requiring the particularity of a specific person, suspected of committing a specific crime, New York places a greater burden upon police before they can deprive someone of their liberty, even temporarily.
Finally, the fourth De Bour level is arrest. An officer may arrest and take into custody a person when the officer has "probable cause" to believe that person has committed a crime (a felony or misdemeanor), or an "offense" (a violation) in his presence.
The categories that follow demonstrate that, at least with respect to clear instances where "reasonable suspicion" is absent, federal and state law are consistent. When considering these specific examples set forth below, it is important to remember that the absence of "reasonable suspicion" does not preclude all police action. In instances where an officer cannot effect a "stop," the officer retains the right to approach a person, make inquiries and observe a person's actions -- only forcible detentions (including verbal commands that amount to a seizure) are precluded.
The United States Supreme Court has held that "[a citizen] may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” [Florida v. Royer, 460 U.S. 491, 498 (1983) (citing United States v. Mendenhall, 446 U.S. 544, 556 (1980)]. Similarly, the refusal to identify oneself will not alone give rise to "reasonable suspicion." See Brown v. Texas, id.
New York courts, likewise, have held that, while police officers may pose nonthreatening questions seeking basic information, e.g., regarding identity, address or destination, when they have an objective, credible reason to do so, civilians are not required to answer or to provide proof of identity. See De Bour. Although some verbal responses to questions at this level can provide a basis for greater intrusion, such as obviously false answers, officers may not effect a more “intimidating” (the court’s descriptive term, not mine), level-two "common law" inquiry, nor a level-three "stop," based solely upon a civilian's refusal to answer or failure to provide identification.
The United States Supreme Court has likewise held that a citizen who does not wish to answer police questions may disregard the officer's questions and walk away. See Brown v. Texas. At this point, Brown bears some mention. The Court held that no reasonable suspicion justified a seizure where the police stopped the defendant in an alley associated with drug trafficking and the defendant refused to identify himself and angrily asserted that the officers had no right to stop him. Refusal to answer an officer's questions, standing alone, does not satisfy the constitutional "reasonable suspicion" test.
Under governing New York law, an individual has a constitutional right to refuse to respond to questions posed by a police officer, may remain silent, and may even walk away without fearing an arrest or detention by the officer.
Under both federal and New York law, a person may not be "stopped," or "stopped" and frisked, solely because he or she is in the company of an individual whom the police reasonably suspect.
Of course, a citizen may waive their Fourth Amendment right at any time and grant consent to a search including, but not limited to, themselves, a vehicle or a dwelling place. Nonetheless consent will often result in a inquiry of its voluntariness when being challenged at a suppression hearing. But that is topic which is beyond the scope of the present discussion.
RW
Well, to address these issues, I wrote the following essay in part from sources culled from my friend, criminal defense attorney Rick Collins' treatise, LEGAL MUSCLE: Anabolics in America. Specifically, chapters 7 and 9, Winny Warrants and Probable Cause and Fast Cars and Anavars, respectively. The majority of the case law cited are Supreme Court cases. I hope that you find it informative.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."--U.S. Const. amend. IV.
Not every police-civilian interaction implicates the Fourth Amendment "probable cause" or "reasonable suspicion" standards. For example, a non-coercive conversation between an officer and a civilian does not require any articulable basis under the Fourth Amendment. For Fourth Amendment analysis to apply, a "seizure of the person" must occur.
A seizure is a physical taking of possession such that they are not free to leave or when a reasonable person would believe such. See California v. Hodari, 499 U.S. 621 (1991).What constitutes a seizure is highly fact dependent. Detaining a person to question them is a seizure [Reid v. Georgia 448 U.S. 438 (1980)] as well as to ascertain their identity [Brown v. Texas, 443 U.S. 47 (1979). (Emphasis mine.) Stopping an automobile and detaining its occupants is a seizure [Colorado v. Bannister, 449 U.S. 1 (1980); Delaware v. Prouse, 440 U.S. 648 (1979)]. (The body of case law surrounding the Fourth Amendment right is voluminous; what a government actor can or cannot properly search or seize in a given case is ultimately a question of law for the court.)
The least intrusive form of constitutional "seizure," but one which still requires "reasonable suspicion," is a Terry "stop."
Terry v. Ohio
In the landmark case of Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that a police officer may detain a person briefly on the street for limited interrogation in the absence of "probable cause," so long as a lesser standard of "reasonable suspicion" has been satisfied. To justify a patdown frisk, a police officer must have a reasonable fear that he or she "is dealing with an armed and dangerous individual. Under Terry, a "stop" occurs when, "by means of physical force or by show of authority." A police officer briefly detains a civilian such that "a reasonable person would have believed that they was not free to leave.
For a police officer properly to effect a Terry "stop," the officer must be able to articulate "reasonable suspicion." "Reasonable suspicion" is a reasonable belief on the part of the officer, based on experience, observations, and/or information from others, that criminal activity is "afoot" sufficient to warrant police intervention. (Refer also to Illinois v. Gates 462 U.S. 213 (1983) for a comparison to probable cause as being established by the "totality of the circumstances.)
Police may not merely stop a car and question its occupants simply to get acquainted (I’ve heard some LAPD police officers refer to this colloquially as “jamming.” I imagine that this is the good guys way of taking the streets back from the hoodlums who will stop a rival gang member and “sweat” him. “Sweating,” I’m told, is when gang members will confront a stranger whom they believe to be a member of a rival gang). Police may stop a vehicle when there is reasonable suspicion to believe the operator or occupants have committed a crime. [Delaware v. Prouse, id.] Such an investigatory stop must satisfyt the following two-part standard [United States v. Cortez 449 U.S. 411 (1981)]:
1. Based upon the totality of the circumstances the officer must make an assessment of the situation;
2. The totality of the circumstances must raise a suspicion that the persons being stopped are engaged or about to be engaged in some wrongdoing.
More than a hunch is needed to make a stop, of course a traffic infraction is sufficient to stop the vehicle.
The law of Terry provides a baseline federal constitutional test for "stop & frisk," the "reasonable suspicion" standard, in the absence of which no seizures of the person are permitted. However, the federal standard sets the floor, not the ceiling of constitutional protection. State courts and legislatures may, consistent with the Fourth Amendment, heighten the standard which officers must satisfy, making it more demanding of officers and more protective of civilians, pursuant to principles of their own state constitutions or as matters of their own state policy. New York has done precisely that.
People v. DeBour (State law)
In People v. De Bour, [40 N.Y.2d 210, 386 N.Y.S.2d 375 (1976)], the New York Court of Appeals, using principles of state law, established a more nuanced (and arguably more stringent), multi-tiered standard for evaluating the propriety of police-civilian street encounters. Each progressive level allows "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."
The New York test identifies four levels of police intrusion on an escalating scale. At the first, least intrusive level, an officer may request information from a civilian about his or her identity, reason for being at a particular location, or travel plans, where the request is "supported by an objective, credible reason, not necessarily indicative of criminality."
The second De Bour level is referred to as the "common law right of inquiry." Under the "common law right," an officer may approach and closely question a civilian to the extent necessary to gain explanatory information beyond identity and travel plans. Still, however, the officer may not detain the civilian; the individual always remains free to leave. This second level of intrusion, which falls short of a Fourth Amendment "seizure" (a "stop") sufficient to implicate Terry, does require a founded suspicion that "criminal activity is afoot," and is often referred to as “founded suspicion.” The difference between the De Bour tiers is itself subtle and rests upon the content and number of questions, and the "degree to which the language and nature of the questions transform the encounter from what the courts have described as a merely “unsettling one" under De Bour's first level, to an “intimidating one" under its second.
At the third De Bour level of intrusion, an officer is authorized to detain a civilian against his or her will; in the parlance of Terry, it is here that a "stop" occurs. In New York, a "stop" is authorized only 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 It is important to note that the standard for effecting a "stop" under De Bour and its progeny is somewhat more exacting than the standard under Terry. By requiring the particularity of a specific person, suspected of committing a specific crime, New York places a greater burden upon police before they can deprive someone of their liberty, even temporarily.
Finally, the fourth De Bour level is arrest. An officer may arrest and take into custody a person when the officer has "probable cause" to believe that person has committed a crime (a felony or misdemeanor), or an "offense" (a violation) in his presence.
The categories that follow demonstrate that, at least with respect to clear instances where "reasonable suspicion" is absent, federal and state law are consistent. When considering these specific examples set forth below, it is important to remember that the absence of "reasonable suspicion" does not preclude all police action. In instances where an officer cannot effect a "stop," the officer retains the right to approach a person, make inquiries and observe a person's actions -- only forcible detentions (including verbal commands that amount to a seizure) are precluded.
The United States Supreme Court has held that "[a citizen] may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” [Florida v. Royer, 460 U.S. 491, 498 (1983) (citing United States v. Mendenhall, 446 U.S. 544, 556 (1980)]. Similarly, the refusal to identify oneself will not alone give rise to "reasonable suspicion." See Brown v. Texas, id.
New York courts, likewise, have held that, while police officers may pose nonthreatening questions seeking basic information, e.g., regarding identity, address or destination, when they have an objective, credible reason to do so, civilians are not required to answer or to provide proof of identity. See De Bour. Although some verbal responses to questions at this level can provide a basis for greater intrusion, such as obviously false answers, officers may not effect a more “intimidating” (the court’s descriptive term, not mine), level-two "common law" inquiry, nor a level-three "stop," based solely upon a civilian's refusal to answer or failure to provide identification.
The United States Supreme Court has likewise held that a citizen who does not wish to answer police questions may disregard the officer's questions and walk away. See Brown v. Texas. At this point, Brown bears some mention. The Court held that no reasonable suspicion justified a seizure where the police stopped the defendant in an alley associated with drug trafficking and the defendant refused to identify himself and angrily asserted that the officers had no right to stop him. Refusal to answer an officer's questions, standing alone, does not satisfy the constitutional "reasonable suspicion" test.
Under governing New York law, an individual has a constitutional right to refuse to respond to questions posed by a police officer, may remain silent, and may even walk away without fearing an arrest or detention by the officer.
Under both federal and New York law, a person may not be "stopped," or "stopped" and frisked, solely because he or she is in the company of an individual whom the police reasonably suspect.
Of course, a citizen may waive their Fourth Amendment right at any time and grant consent to a search including, but not limited to, themselves, a vehicle or a dwelling place. Nonetheless consent will often result in a inquiry of its voluntariness when being challenged at a suppression hearing. But that is topic which is beyond the scope of the present discussion.
RW
Last edited:
