Barry Kamins in his office at the New York City Bar Association. Barry Kamins. Photo by Rick Kopstein

Forty-four years ago, in People v. DeBour, 40 N.Y.2d 210, the New York Court of Appeals announced that New York must now assess the propriety of street encounters that do not rise to a level of a seizure for the purpose of the Fourth Amendment. In the past two years DeBour has faced increasingly divergent criticism from members of the New York Court of Appeals. At the end of last year, a new issue arose: whether level three of DeBour can be applied to non-criminal offenses.

'People v. Britt'

In People v. Britt, 2019 N.Y. Slip Op 09600 (2019), a uniformed police officer observed the defendant in Times Square, in front of a "haunted house" attraction, and drinking from a container covered by a brown bag. As the officer approached the defendant on his police scooter, the defendant ran up some stairs into the haunted house attraction. When the officer pursued the defendant inside, he stopped the defendant by grabbing his arm. At that point the officer was able to see that the container was an open can containing an alcoholic beverage.

The officer walked the defendant outside, initially planning to issue a summons for a violation of the open-container law. When the defendant was unable to produce a sufficient form of identification, the defendant was arrested and searched incident to the arrest. During that search the officer found cash in two separate bundles and several Ziploc bags containing what appeared to be crack cocaine. Seventeen bills were later identified as counterfeit currency.

The decision was predicated on a violation of what is commonly referred to as "the open container law." Under the New York City Administrative Code, a person may not drink or consume an alcoholic beverage or possess an open container containing an alcoholic beverage in any public place (with some exceptions). Administrative Code §10-125. The penalties for violating this offense are a fine of up to $25 or imprisonment of up to five days or both. Under the Penal Law, this offense constitutes a "violation" (P.L. §55.10(3)(a)), and not a crime, i.e., a felony or a misdemeanor.

In the past, lower courts have held that, when a suspect commits a non-criminal offense in the presence of an officer, and the individual flees, the police may pursue the individual and detain him until a summons can be issued. Thus, in People v. Bothwell, 261 A.D.2d 232 (1st Dept. 1999), the court held that, after observing the defendant drinking beer on the sidewalk, the officer had probable cause to believe that the defendant had violated the open container law. It was then lawful for the officer to follow the defendant into a luncheonette and, upon the defendant's refusal to step outside, seize the defendant for purposes of removing him so that he could be issued a summons.

In Britt, the court was faced with a more difficult question: If there was reasonable suspicion to believe that the open container law had been violated, could the officer pursue the defendant and seize him after he fled?

During oral argument, Judge Paul Feinman expressed his initial concern as to these issues: " I guess I'm just troubled by this notion that because you see something in a brown paper bag that somehow allows you to start pursing this person." Transcript, p. 16, Nov. 21, 2019. Writing for the majority, Judge Eugene Fahey noted that the parties had agreed that the pursuit and seizure of the defendant occurred at the third level of the DeBour four-level test for evaluating street encounters initiated by the police. That level requires reasonable suspicion that a suspect has committed, is committing or is about to commit a felony or misdemeanor.

The issue that then divided the court was whether, armed with reasonable suspicion, the officer could pursue and seize the defendant after he fled. The majority concluded that the officer's pursuit was lawful because there was "record support for the conclusion that the officer had reasonable suspicion that the defendant had committed or was committing a crime" (emphasis added).

Dissent

In his dissent, Judge Rowan Wilson noted that a level-three stop, predicated on reasonable suspicion, is limited to felonies and misdemeanors, but prohibited for non-criminal offenses such as the open container law. To support his position, Judge Wilson cited In re Victor M., 9 N.Y.3d 84 in which a police officer seized a suspect based upon reasonable suspicion that he had committed the offense of loitering for the purpose of gambling, a violation under the Penal Law. The court held that the seizure was unlawful holding that "[t]emporary detentions are authorized by statute only for felonies and misdemeanors, not violations." Id. at 88.

In analyzing this issue, lower courts have drawn a line between stops based upon criminal activity, and those that are predicated on non-criminal offenses. In People v. Morris, 138 A.D.3d 1239 (3d Dept. 2016), the police lawfully pursued the defendant after the police observed him riding a bicycle on the sidewalk; the conduct was a violation of a city ordinance that was punishable as a violation for first offenders, and as a misdemeanor for repeat offenders. Thus, the court held that the police had reasonable suspicion that the "defendant may have engaged in criminal activity" (id. at 1240, emphasis added) and, as a result, were justified in stopping him for the purpose of determining the appropriate penalty.

In People v. Mahoney, 165 A.D.3d 980 (2d Dept. 2018) a police officer was justified in stopping a defendant after the defendant appeared to urinate on the sidewalk. At the time of the incident, public urination was an unclassified misdemeanor in violation of the New York City Health Code and, therefore, a crime.

Britt is a further example of how some members of the Court of Appeals continue to find the DeBour framework ill-suited under certain circumstances in assessing police-citizen encounters. In People v. Perez, 31 N.Y.3d 964 (2018), Judge Jenny Rivera suggested that the DeBour test cannot be applied easily to police-citizen encounters in which citizens choose not to respond to police questions, especially for those citizens who live in public housing buildings. In the past few years, the DeBour framework has been applied with greater frequency in those types of buildings, where police officers routinely conduct vertical patrols, looking for trespassers.

In her dissent, Judge Rivera questioned whether, under the DeBour framework, the police were authorized to approach the defendant in the first place. Once they did so, Judge Rivera opined that the police had acted unlawfully inasmuch as the defendant was exercising his constitutional right not to engage with police—something that should not have escalated under DeBour. She opined that the case fell "in the DeBour borderlands straddling the line between levels two and three, and highlights some of our framework's problems." Id. at 972.

More recently, in People v. Gates, 31 N.Y.3d 1028 (2018), Judge Michael Garcia questioned the continued vitality of DeBour because, in his opinion, it "serves as a barrier to legitimate, effective and minimally-intrusive law enforcement practices designed to detect and ward off threats at their earliest stages." Id. at 1031. He questioned its continued usefulness based on its "rigid, complex and graduated scale of encounters that are often fluid, dynamic and developing." Id. at 1032. Finally, he opined that DeBour required unnecessarily intensive judicial inquiries into whether the police may initially approach citizens and its subtle gradations can be confusing to police officers who must comport with its framework.

Britt appears to add a new level of criticism towards DeBour. In Gates and Perez, the above judges questioned whether DeBour's framework continues to retain its vitality. In Britt, however, Judge Wilson, writing for the dissent, was concerned about the consequences of applying level three of DeBour to quality of life offenses which are not crimes, noting that there is a "tremendous difficulty inherent in the (mis)application of our DeBour test in many real-world situations." Id. at 2. As Wilson points out, with respect to offenses that are not felonies or misdemeanors, e.g., an open container offense, "DeBour level three does not exist." Id. at 16 (dissent).

Conclusion

Going forward, it remains to be seen what effect Britt will have on other non-criminal offenses. The decision may also add to the dissatisfaction with DeBour in general although it is unclear whether a majority of the Court of Appeals has reached the conclusion that DeBour has outlived its usefulness and, if so, what framework or structure should take its place. It is also unlikely, considering the divergent views of the judges with respect to DeBour, whether the court could agree on what a replacement would look like. Judge Sol Wachtler, who wrote the opinion in DeBour, predicted that the DeBour structure will be changed some day by "technology, a constitutional interpretation or the evolution of the common law … but we may have to wait another 40 years." Spring 2018, New York State Bar Association Criminal Law Newsletter, Vol 16, at n.52. Only time will tell if his prediction was accurate.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (LexisNexis 2019). He is a former New York State Supreme Court Judge.