February 14, 2008
As a general rule, the majority of arrests for alcohol influenced operating offenses occur when a vehicle is stopped by a law enforcement officer for a moving violation. Even so, a significant number of arrests are made when the motorist is observed in a stationary vehicle. Last issue for instance, we reported People v. Rick Gibbs, NYLJ April 3, 1995, p.25. In Gibbs, the vehicle was stopped in the middle of the roadway, locked onto the bumper of a parked van. In People v Saplin, (3rd Dept. 1986) 122 AD2d 498, 505 NYS2d 460 app den (1986) 68 NY2d 817, 507 NYS2d 1035, the defendant was found asleep in his vehicle which was parked in the southbound lane of the highway.
As we all know, the stop of a moving vehicle must be based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion (People v. Ingle (1975) 36 NY2d 413, 369 NYS2d 67; see also, People v. Sobotker (1978) 43 NY2d 559, 402 NYS2d 993). Both Saplin and Gibbs are representative of fact patterns in which articulable facts can be found, notwithstanding the fact that the vehicle was stationary at the time of the encounter.
Subject to question for many years, was the constitutional analysis to be applied when the motor vehicle is parked more or less lawfully at the curb or along the shoulder of the road. Can a police initiated encounter survive a Fourth Amendment challenge?
Paramount in resolving this question is recognition of the obvious: since a stop of the motor vehicle has not taken place, Ingle and Sobotker, both of which dealt with the stop of a moving vehicle, are of little help. Even so, since the vehicle was not stopped, does law enforcement enjoy unbridled freedom to initiate an inquiry? Put another way, is anything at all required to justify such a diminimous level of contact?
In People v. Cantor, (1975) 36 NY2d 106, 365 NYS2d 509, the defendant, who had been under police surveillance, was surrounded by plain-clothes policemen brandishing weapons as he attempted to enter a building. Subsequently searched, the authorities located a weapon as well as drugs. On appeal he asserted that the armed seizure of his person constituted an impermissible intrusion inasmuch as the officers did not possess reasonable suspicion that he was engaged in criminal activity.
Agreeing, the Court of Appeals recognized that although the police should be accorded great latitude in dealing with those situations with which they are confronted it should not be at the expense of our most cherished and fundamental rights (Id. at 112). Turning to Terry v. Ohio, (1968) 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868, the Court observed that [t]o justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (Cantor at p. 113). Noting that the record below was barren of any objective evidence evincing criminal activity, the Court found that the stop had exceeded the limitations imposed by Terry and accordingly suppressed.
Cantor, of course, is somewhat unique in that the affirmed findings of fact failed to disclose that the officers were in possession of inculpatory facts at the moment they initiated the encounter. To be distinguished from Cantor is People v. DeBour, (1976) 40 NY2d 210, 386 NYS2d 375. In DeBour, the issue presented was whether 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. Briefly stated, the facts in DeBour involved a street stop. Police observed an individual walking down the street and, as the officers neared, the individual crossed the street. The officers followed and, upon encountering the individual, asked what he was doing in that neighborhood. During the encounter, the officer observed a waist high bulge and asked DeBour to unzip his coat. He complied and the officers observed a weapon for which DeBour was ultimately charged with possessing.
DeBour maintained 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. In a nutshell, it was his contention that since the officers had not observed anything of an articulable nature with which to justify the stop, simply asking him to remain stationary on the sidewalk constituted an impermissible seizure of his person.
Although DeBour sought to bring his arrest within the purview of Cantor, the Court apparently realized that to do so would be to abolish the Terry exception on nearly identical facts. Refusing to hold that Cantor controlled, the Court turned to the core of the issue that was at stake in the earlier decision. Our recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference. In Cantor, 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. Thus, it was the level of the intrusion, and not merely the fact that an intrusion had occurred that governed. The conduct of the policemen in the instant case presents a sharp contrast to these last‑mentioned cases. Here DeBour was merely approached and questioned by two uniformed officers whose conduct bespoke no violent or forcible apprehension. Clearly then, DeBour was not seized in the sense that Cantor [was].
Of interest, in an automobile context was discussion of People v. Ingle, (1975) 36 NY2d 413, 369 NYS2d 67. In identifying an impermissible level of intrusion, the DeBour court noted that Ingle held where a motorist was accosted and restrained for a routine traffic check [such action] constituted a limited seizure within the meaning of constitutional limitations. What did the Court mean by this reference? Was the fact that Ingle was accosted in a vehicle dispositive? If so, the Ingle/Cantor/DeBour rationale would tend to limit the right of inquiry identified in DeBour to encounters involving those who were accosted on foot. If, on the other hand, Ingle was cited since it involved the stop of a moving vehicle, one would be on firm logical turf in arguing that accosting one who is merely sitting in a parked vehicle does not elevate the encounter beyond the level identified as impermissible in Cantor.
In People v. Harrison, (1982) 57 NY2d 470, 457 NYS2d 199, two New York City police officers approached a stopped 1978 Chrysler solely because the license plate identified it as a rental vehicle and it was extremely dirty. As the driver attempted to exit, he was told to remain in the vehicle. Subsequent to their approach, one of the officers observed a .22 caliber pistol which resulted in the occupants being taken into custody. Eventually charged and indicted for unlawful possession of the weapons, the trial court granted the defendants' motion to suppress the evidence seized from the vehicle. The Court held that the officer's actions in ordering the occupants to remain in the vehicle constituted more than the minimal intrusion of requesting information and could not be justified in the absence of any indication of criminal activity. On appeal, over one dissent, the Appellate Division affirmed, and the Court of Appeals concurred.
Commencing from the standpoint that, as a stopped vehicle, [a]ll that is required is an articulable basis, and not reasonable suspicion, the Court found a satisfactory basis to be supplied by the condition of the vehicle. The problem with Harrison, however, is that the encounter surged beyond a mere Terry type request for information. While on its facts, the Harrison decision appears to have greatly over-emphasized the impact of the command to return to the vehicle, the Court's rationale appears to be well founded. It should be evident from our holding in [DeBour] and subsequent decisions that if the police escalate the encounter, as they did here by exercising restraint over the individual as opposed to his vehicle, even out of concern for their safety, a more substantial predicate is required. In other words, before the police can forcibly or constructively stop an individual as was done here by the order to remain in the car there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers (Harrison at p. 476 [emphasis supplied herein]).
It must be emphasized that the right of inquiry, or an informational approach which will support initial questioning as to identity or purpose, need not be predicated upon any belief of criminal wrong-doing whatsoever. As noted by the Court in DeBour, [t]he basis for [an informational] 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. When, however, the activity at the scene of the stop turns from inquiry to restraint, no matter how subtle, it will be necessary for the officer to support his or her actions with facts and circumstances amounting to a showing that officer's safety is jeopardized or that the officer reasonably believes that criminal activity is afoot. As an action amounting to a stop, even a request to remain can only surpass constitutional scrutiny when there exists a showing of reasonable cause.
Must the purpose of an approach always be rooted in a simple desire for basic information? In other words, if, as the officer approaches a stopped vehicle, he or she is in possession of potentially incriminating evidence, will that invalidate a request for information? No. Such a situation would propagate an absurd result where an officer who knows more would be permitted to do less. In People v. Fabian, (1991, 2nd Dept) 178 AD2d 544, 577 NYS2d 643, the Second Department recognized the obvious and found sufficient predicate to approach the defendant to make inquiry where the officers had been provided with information concerning illegal drug activities gained as a result of the undercover investigation and combined with an anonymous tip.
From a theoretical standpoint, permitting an informational approach of an individual who is standing on a street or sitting in a stationary auto seems reasonable enough. To deny the existence of such a method of inquiry, would be to seriously hamper the police in the performance of their duties. The problem, however, is that since untrammeled application of the Cantor/DeBour rationale could easily throw out the baby with the bathwater, how does one separate a legitimate request for information from an accusatory encounter?
Decided with DeBour was People v. LePene. LePene recognized that inherent in the Cantor/DeBour rationale were several discernable levels of citizen activity, each of which sparked varying levels of permissible police response.
The first identified level of police interference was an articulable basis or some objective credible reason for that interference, which basis is not necessarily indicative of criminality (DeBour [LePene] at 223).
The next degree is that which is encompassed by fact patterns where the officer can articulate some basis for believing that criminal activity is at hand. This level, familiar to all as the standard set out by Terry v. Ohio, (1968) 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868, and People v. Ingle (1975) 36 NY2d 413, 369 NYS2d 67, permits a somewhat more aggressive approach for information, falling just short of a forcible seizure (DeBour [LePene] at 223).
The third identifiable level is that which is triggered by a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor. Under well defined constitutional limitations as well as the CPL, such a situation will permit the officer to forcibly stop and detain an individual. Existing on an identical plane, is the right of an officer who fears for his or her safety as a probable consequence of the belief that the citizen is armed. Such a belief will substitute for reasonable suspicion that criminal activity is afoot and will permit a brief detention for further questioning.
The fourth and final DeBour level is reached when the officer possesses probable cause to believe that the person has committed a crime or offense in his or her presence (DeBour [LePene] at 223; CPL '140.10).
While on its face, the four tiered DeBour/LePene analysis seems clear enough, to one extent the opinion in DeBour was flawed. Although it set forth the trigger for the informational inquiry, it did not delineate the permissible level of that inquiry. Since the second DeBour/LePene factor, a founded suspicion that criminal activity is afoot, permits interference to the extent necessary to gain explanatory information, for nearly two decades there seemed to be no enumerated difference between these two levels of permitted response.
Little discussion is necessary for the difficulties, particularly in the area of stopped cars which were encountered by the inherent closeness of the first (articulable basis) and the second (articulable basis for criminal activity) level of encounter. In the area of stopped cars, this distinction is crucial since the right of a police officer to inquire as to alcohol consumption hangs in the balance.
In People v. Hollman, (1992) 79 NY2d 181, 581 NYS2d 619, the Court of Appeals finally attempted to shed additional light on this razor thin boundary.
Hollman involved the stop of an individual in a bus terminal, although as we will see, it has been found equally applicable to automobile stops. Two men had moved about the terminal and ultimately boarded a bus, whereupon they were questioned about their destinations and their luggage.
Determining that the encounter with Hollman fell properly within the DeBour rationale, the Court elaborated on the nature of the informational inquiry.
[A] request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area. * * * Once the police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrong-doing, the officer is no longer merely asking for information. The encounter has become a common‑law inquiry that must be supported by founded suspicion that criminality is afoot.
Reasonably interpreted, therefore, DeBour/Hollman can be interjected into an alcohol influenced operating offense in the following manner. Assume that the officer observes a motorist sitting in a vehicle that is parked at the curb. DeBour will bar any questions at all in the absence of an articulable basis for approaching the vehicle. In the event that the officer can point to some basis for an approach, such as location (ie: in front of a jewelry store at three a.m.), the officer, with no additional information , can inquire briefly as to the identity and purpose. Should he or she observe the motorist consuming alcoholic beverages in the vehicle, the officer may immediately proceed to the second level of inquiry which will permit questions directed at whether the motorist had been drinking at some earlier point in the evening. Likewise, detection of the odor of an alcoholic beverage, following an informational inquiry, will then move the inquiry to the second DeBour/Hollman level and permit the officer to inquire as to where the motorist had been and whether he or she had been drinking.
Merely because the officer may have an articulable basis to engage in an informational inquiry, one should be sensitive to the manner in which the encounter occurs. Returning to our example of a motorist stopped in front of the jewelry store, how is the encounter properly initiated? May the officer pull behind the vehicle and attract the attention of the motorist by means of the roof rack? He or she may not. In People v. May, (1992) 81 NY2d 725, 593 NYS2d 760, the officers pulled behind an occupied vehicle parked on a deserted street. Although the vehicle was later determined to be stolen, the officer immediately activated the turret and spotlight, and the vehicle pulled away. Following a command via the police vehicle's loudspeaker to pull over, the vehicle stopped. Charged and convicted of narcotics violations, the passenger appealed. Finding that the evidence should have been suppressed, the Court of Appeals observed that the act of activating the turret and spot lights constituted a stop of the vehicle. Consequently, and notwithstanding what would have been the unquestioned right of the officers to engage in an informational inquiry, the fact that the vehicle was stopped elevated the level of the encounter to one which could only be supported by the existence of reasonable suspicion. Nor did the fact that the car slowly pulled away alter the analysis. [D]efendant's action in moving the car slowly away as the police approached could not serve to create a reasonable suspicion of criminality given defendant's right to be let alone and to refuse to respond to police inquiry (see, People v. Howard, (1980) 50 NY2d 583, 590‑591, 430 NYS2d 578, cert denied 449 US 1023 [quoting, Olmstead v. United States, 277 US 438, 478]). The police could have followed the car, to keep it under observation, while they checked on its plates to determine if it was stolen (see, People v. Sobotker, 43 NY2d, at 564, supra), but they had no legal basis to stop the car when they did.
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