Academic journal article Albany Law Review

Stops, Frisks, and Police Encounters: The New York Court of Appeals's Strict Application of the De Bour Standard

Academic journal article Albany Law Review

Stops, Frisks, and Police Encounters: The New York Court of Appeals's Strict Application of the De Bour Standard

Article excerpt


To preserve a safe society and keep crime at a minimum, it is well-settled in both federal and New York case law that, in some situations, police have the authority to question, detain, search, or arrest individuals. The search and seizure provisions of the New York State Constitution and the federal Constitution are identical:

   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. (1)

However, the United States Supreme Court and the New York State Court of Appeals long ago began carving out differing interpretations of search and seizure rights and how broadly to extend those rights to private citizens. Both courts have sought to balance the need to maintain a safe society with the need to uphold the constitutional rights of its citizens, as search and seizure situations naturally lend themselves to a tension between law enforcement interests and an individual's privacy. The Court of Appeals has long recognized that the New York State Constitution provides more protection to citizens in search and seizure cases than the federal Constitution does. (2)

Since deciding People u. De Bour (3) in 1976, the Court of Appeals has maintained a strict construction and application of that standard, resisting attempts to allow courts more latitude in deciding police encounter cases through consideration of other factors. (4) In doing so, the court has developed a wide body of decisions interpreting the state constitution and state law, and expanded considerably the reservoir of independent state constitutional cases in New York. The De Bour test remains in effect just as strongly today as it was when first decided over thirty years ago, and the Court of Appeals continues to faithfully apply this standard when deciding cases based on street encounters between the police and private citizens. (5)


In Terry v. Ohio (6) in 1968, the United States Supreme Court enumerated the federal standard for briefly stopping and searching (commonly known as a "stop and frisk") individuals suspected by police of engaging in some criminality. (7) In that case, the on-street encounter between police and a private citizen, Terry, occurred when an officer on patrol duty observed Terry and another man walking down the sidewalk. (8) The men were walking back and forth and looking at a storefront window, eventually joined by a third man. (9) Despite the hour of 2:30pm, the officer became suspicious and began keeping a closer eye on Terry, concerned they were planning a robbery by "casing" the storefront window. (10) "Deciding that the situation was ripe for direct action," (11) the officer approached the group and asked for their names, and then proceeded to physically grab Terry and pat him down. (12) He felt a pistol in Terry's front coat pocket, and the officer removed Terry's coat before patting down and arresting the other two men. (13) Terry was later convicted for carrying a concealed weapon. (14)

Chief Justice Warren wrote for the majority and framed the issue as whether, given all the circumstances, Terry's Fourth Amendment rights were violated by an unreasonable search and seizure. (15) Interestingly, he began this analysis by setting out the policy arguments for both those in favor of stopping and frisking suspicious persons and those concerned about the personal privacy of citizens. (16) Rejecting the "all-or-nothing" approach advocated by both sides, Chief Justice Warren focused on the reasonableness, in all circumstances, of the government's invasion of personal privacy, and to what extent that privacy was invaded. …

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