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.

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