DWI SERIES---ISSUES FROM THE STOP TO THE ARREST
This guide explains some basic concepts related to police-civilian street encounters. It will educate you on when a police officer can stop you and what information he/she needs before they can legally approach you in public.
WHEN CAN A POLICE OFFICER APPROACH ME ON THE STREET OR WHILE I'M IN A PARKED VEHICLE?The approach of a parked vehicle by a police officer is governed by the same rules that govern police-civilian street encounters. The two seminal New York cases that govern these situations are People v. Hollman, 79 N.Y.2d 181 (1992) and People v. DeBour, 40 N.Y.2d 210 (1976). In both cases, the NY Court Appeals identified 4 levels of police-civilian street encounters: (1) a request for information; (2) a common-law right of inquiry; (3) a forcible stop/detention and (4) an arrest.
Debour Level 1---Police must have an articulable basis to approach you or your parked vehicle. They can ask your name, destination and why you're in a specific geographical location. If police go beyond their authority, evidence is suppressible. Under Level 1, police can ask non-threatening questions regarding name, address, destination and if a person is carrying something unusual, a police officer can ask about that. The encounter should be brief and non-threatening and there should be an absence of harassment and intimidation. Under level 1, an officer can say "STOP" if it's not forceful, can approach a stopped car, can touch his holster but cannot request permission to search and cannot case people to reasonably believe they're being suspected of a crime, no matter how calm and polite the tone of the questions.
DeBour Level 2---Police can conduct a common-law right of inquiry if they have "founded suspicion" that criminal activity is afoot. Under this level, the questioning can me pointed and focused on criminality and can reasonably lead one to believe that he/she is suspected of a crime. The questions can be more extended and accusatory. However, an officer cannot request permission to search, cannot pursue a suspect and cannot forcibly detain or pat down at this stage.
DeBour Level 3----Police can stop and frisk if there is reasonable suspicion of criminal activity. Under level 3, an officer can forcibly detain a suspect, can frisk for weapons if there is a reasonable fear that the suspect is armed, can pull a car out of the flow of traffic, can order a suspect to lie on the ground if there is good reason, can handcuff a suspect for a good reason and can pursue a suspect.
DeBour Level 4---If the officer has probable cause to search and/or arrest, he can do both. If there is probable cause to search, the officer must secure a search warrant unless an exception to the warrant requirement exists. And if there is probable cause to arrest, then a suspect may be formally arrested and placed into custody.
WHAT ARE THE EXCEPTIONS TO THE WARRANT REQUIREMENT?In the next legal guide, I will discuss probable cause to search, when a warrant is required to search and what warrant exceptions allow an officer to search without a warrant.