Let's Be Reasonable: Why New York Courts Need to Embrace the Federal Standard for Analyzing Police-Civilian Encounters

By Simchi-Levi, Yuval | Albany Law Review, Summer 2019 | Go to article overview

Let's Be Reasonable: Why New York Courts Need to Embrace the Federal Standard for Analyzing Police-Civilian Encounters


Simchi-Levi, Yuval, Albany Law Review


I. INTRODUCTION

New York State courts analyze police-civilian encounters in a stricter manner than the federal courts and many other state courts. (1) This is because of a case decided in 1976 by the New York Court of Appeals, People v. De Bour, (2) which placed certain preconditions on police officers when they interact with civilians. (3) An example of such a precondition is that, in investigating potential criminal activity, a police officer can talk to a civilian only if the officer has an "objective credible reason" for doing so. (4) One former judge on the New York Court of Appeals noted that New York is seemingly the only state that forbids police officers from talking to people in the street unless particular preconditions are satisfied. (5) Recently, a current judge on the Court of Appeals observed, "[T]he analytical framework of De Bour serves, in many ways, to undermine the goals of clarity, public safety, and judicial economy." (6) And the judge who wrote for the majority in De Bour, himself acknowledged that, after four decades, it may be time to reexamine the case in light of "the change in communities, the change in morality, the change in our sense of justice, the change in our need for protections, the change in our need for greater enforcement." (7)

This Paper argues that these judicial preconditions should be discarded because a standard already exists that many other courts across the United States follow for analyzing encounters between civilians and law enforcement. Specifically, under the Fourth Amendment of the United States Constitution, federal courts and many other state courts have determined that whether police officers acted lawfully hinges on whether the officers' conduct was reasonable--plain and simple. (8)

New York is long overdue in adopting the reasonableness standard. The De Bour framework breeds needless confusion among hearing courts and litigants, has led to the suppression of evidence in illogical situations, and is conceptually unsound. As one federal judge even suggested, interactions deemed lawful under New York law, may actually be unlawful under the United States Constitution. (9) As this Paper describes, moreover, New York courts have fashioned a judicial escape clause, so that reasonable police conduct that does not fit neatly into De Bour's framework will not always result in the suppression of evidence--a judicial tool that is neither consistently nor foreseeably applied. New York State courts should simplify and improve criminal procedure by analyzing interactions between civilians and law enforcement solely under the Fourth Amendment's reasonableness standard.

II. HISTORY OF FOURTH AMENDMENT ANALYSIS

Since the country's founding, Americans have struggled to balance the right to be free from "rash and unreasonable interferences" from police with the interest in granting law enforcement appropriate "leeway" to enforce the law and protect the community. (10) The Fourth Amendment, of course, provides that people have a right to be secure from "unreasonable searches and seizures" in their persons, houses, papers and effects." In that regard, the framers of the Constitution opposed the eighteenth century British practice of issuing "writs of assistance" to revenue officers, which allowed the officers, at their discretion, to search suspected places for smuggled goods. (12) The Fourth Amendment was thus meant to protect citizens from unreasonable searches by law enforcement. (13)

Before 1968, the United States Supreme Court's jurisprudence held that a police officer could not seize a person without probable cause. (14) That changed with the seminal case of Terry v. Ohio, when the Supreme Court ruled that a police officer could indeed seize a person without probable cause under certain circumstances. (15) Terry recognized that the previous strict rule--namely, that any seizure required probable cause was impractical because police-civilian encounters are "rich in diversity," and thus not easily governable by a hard-and-fast rule. …

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