As our country considers the nature of civilian/police interaction our bloggers will be taking a look at how New York laws regulate - or are supposed to regulate - that interaction. How may the police interfere with a citizen's right to be free from unreasonable searches or seizures? What information must the police have before they can lawfully stop, frisk or arrest a citizen?  

The first post in this series (below) addresses some relevant New York statutes. Following posts will address case law, specific circumstances that permit greater police intervention, and practical application of the law. As with all of our posts, this information is intended to be educational, but is not legal advice.

by

Jill Paperno, Esq.

author of Representing the Accused: A Practical Guide to Criminal Defense

In this time of increased (and in many cases, long overdue) scrutiny of civilian/police encounters, it's worth taking a look at the police conduct New York law authorizes.  While many of us are familiar, and spend lots of time litigating the hierarchy of permissible police intrusion on civilians' freedom as laid out by the Court of Appeals in People v Debour, 40 NY2d 210 and People v Hollman, 79 NY2d 181 in the context of suppression hearings, we may forget that there is a statutory scheme as well.

The Statutes

First, let's look at when police may arrest without a warrant. CPL 140.10 addresses the circumstances in which that may occur:

1. Subject to the provisions of subdivision two, a police officer may arrest a person for: 

(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and 

(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise. 

2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when:

(a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and

(b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her.

Part of the important takeaway from this portion of the statute is that if a petty offense, defined in CPL 1.20(39) such as a violation or traffic infraction, occurs outside the officer's presence, s/he cannot arrest. And s/he cannot claim resisting arrest for failure to comply with such an arrest, since to be guilty of resisting, the arrest resisted must be authorized by law. (But please be aware, New York has a "no sock" rule - no hitting an officer even if the arrest is not lawful!). The statute's later subdivisions also include provisions concerning geographical jurisdiction to arrest and specific rules concerning family offenses.

So if a disorderly conduct, simple trespass, simple traffic infraction, or simple harassment occurs outside the officer's presence, the officer should issue an appearance ticket, but not arrest.

What about when officers stop someone to talk to them without any reason to believe the person has violated the law? Can the officer search that person? Again, case law addresses these circumstances, and often the applicable law is very fact specific, but there is a statute that we sometimes forget.  CPL 140.50 states:

§ 140.50 Temporary questioning of persons in public places; search for weapons. 

1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. 

2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.

Police may stop individuals for reasons beyond what the above statute permits pursuant to the Debour decision's scheme, often referred to as Level One (request for information) and Level Two (right of inquiry) conduct.  But their right to search for weapons is not greater when their reason to search - asking for information - is lesser.  In other words, if the basis for police intrusion does not rise to reasonable suspicion, they can't claim the need to search for officer safety without.  

In People v. Darryl C, 98 AD3d 69 (1st Dept 2012) the First Department addressed a police officer's pat frisk of the defendant who was stopped for a Level Two inquiry. In a discussion of "stop and frisk" policies the Court stated, 

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50 [1]; People v Debour, 40 NY2d 210 [1976]) and then "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (People v Batista, 88 NY2d 650, 654 [1996]; CPL 140.50 [3]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; [71] US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. 

In People v Holland, (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court's dismissal of the appeal as "not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters" (id. at 845). He stated:

"When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve . . . This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime" (id.).

Of course, you must be familiar with People v Debour and People v Hollman, and develop an understanding of what factors may elevate an officer's right to interfere with your right to be left alone, like reaching for the waistband, having a weapon shaped bulge, perhaps fleeing and other conduct. But these statutes tell us that generally, in the absence of criminal conduct, a person can't be searched without a reasonable suspicion that s/he has committed a crime and is a threat to the officer.