New York City's Stop & Frisks (Part 1)

New York State's mid-level appeals court in Manhattan recently invalidated 2 stop and frisks of teenagers in high crime neighborhoods in the Bronx. The court--the Appellate Division, First Department--made clear that it would not tolerate the City's increasingly aggressive crime control efforts at the expense of basic civil liberties.

There is no need to repeat what I or others have commented elsewhere. (NY Times story available at http://www.nytimes.com/2012/07/11/nyregion/courts-putting-stop-and-frisk-policy-on-trial.html?partner=rss&emc=rss.) The purpose here is to address what seems to be missing from all the reports and commentary. It's an aspect of those 2 court rulings that is critical to the ultimate disposition of these and similar cases, as well as to the City's stop and frisk program itself.

The 2 rulings were based on New York State case law. Not on U.S. Supreme Court precedents. But on decisional law of New York's highest court, the Court of Appeals.

The mid-level appeals court invalidated the stop and frisks in the 2 cases based on New York State's own landmark search and seizure ruling. A ruling that is much more protective against arbitrary searches and seizures than Supreme Court rulings.

That ruling? People v. DeBour. An essential element of New York State's search and seizure jurisprudence for 36 years.

Sol Wachtler

Since it was decided in 1976 by the Court of Appeals, in an opinion by then-Judge Sol Wachtler, DeBour has been applied countless times by New York appellate courts, and many more times than that at the trial level. Indeed, in 1992, the Court of Appeals left no doubt about DeBour. It unanimously and emphatically reaffirmed it in People v. Hollman, in another opinion by then-Chief Judge Wachtler.

So what is DeBour?

In short, as New York criminal lawyers know well, DeBour requires some legal justification for the police to confront someone. More specifically, for example, DeBour requires some legitimate suspicion before police may approach someone and ask incriminating questions or ask for consent to search.

By sharp contrast, Supreme Court precedents require no such thing. No justification. No legitimate suspicion. Nothing. No, nothing whatsoever is needed for the police to approach and ask incriminating questions or ask to search. According to the current Supreme Court, the federal Constitution's search and seizure protections are just not implicated by such confrontations.
[Hey, as I've said before, I didn't appoint the Justices who've been voting that way.]