People V DeBour

People v DeBour is the seminal case dealing with street encounters in New York State. For the first time, several members of the New York Court of Appeals have openly criticized the decision, but for different reasons. Judge Garcia has found the decision too technical and rigid, opining that it may be difficult for lawyers and police officers to follow.

Judges Rivera and Wilson, on the other hand, have opined that DeBour may not be protective enough of citizens who just want to be left alone.

The above opinions were written as dissents, thus they do not carry any legal weight. However, they do signal the views of three judges on our state's highest court about a case that has regulated street encounters for over 40 years. It also may invite practitioners to challenge DeBour, down the road.

In recent years, De Bour has also applied to encounters between citizens and police officers in public housing buildings.  These encounters have become difficult for courts; a citizen has a right to be left alone in his or her residence but the police also have a right to conduct patrols to find trespassers.  If a police officer asks an individual if he lives in the building and the individual decides he does not want to answer the question, can a police officer take any action based on that refusal?  What if the citizen walks away?

These questions highlight the tension that exists, and continues to exist, between the police and residents of public housing.  Courts must determine the lawfulness of these encounters to determine whether evidence should be suppressed.

In addition, the New York Court of Appeals, our state’s highest court, will be reviewing another issue that arose in a public housing setting.  In order to verify whether an individual resides in a building the police may ask an individual for some form of identification. Should the police then take the identification to another location in the building to verify the residence of the individual, has that person been “seized” under the Fourth Amendment?  Can the police take the identification from the citizen without having a reasonable suspicion that the person has committed a crime? These are the questions that will be answered by the Court of Appeals later this year.