by Richard Resch

The Court of Appeals of New York ruled that the defendant (1) moving from the driver’s seat to the passenger’s seat, (2) positioning upper torso toward driver’s seat, (3) pulling pants up upon exiting vehicle, and (4) appearing nervous when questioned by police were insufficient to establish reasonable suspicion necessary to conduct a level 3 stop and frisk of the defendant under the De Bour framework, and thus, the evidence obtained as result of the unlawful police conduct must be suppressed.

During the early evening hours in April 2015, Rochester police officers Bradley Pike and Darrel Schultz were patrolling in a marked police cruiser when they noticed Tyquan Johnson sitting in a parked vehicle about 50 feet ahead. The vehicle was not improperly parked or otherwise violating any traffic laws. As they approached, Pike reportedly observed Johnson move from the driver’s seat to the front passenger’s seat and momentarily move his upper back toward the driver’s seat. His suspicion roused, Pike parked the patrol vehicle behind Johnson’s vehicle and activated the nonemergency lights.

Both Pike and Johnson exited their respective vehicles. Pike observed that Johnson’s pants were unbuttoned and that he was attempting to pull them up as he walked down the street. Pike ordered him to stop, but Johnson proceeded to keep walking. Pike caught up with Johnson and asked if he was nervous, and Johnson replied that he was not. Pike then asked whether he had any weapons on him; Johnson stated that he had “Nothing.”

Pike then frisked him but did not find any weapons, but he did detect an object in Johnson’s pocket that Pike believed might contain drugs. He asked Johnson what he had in his pockets, and Johnson again replied that he had “Nothing.” Pike claimed that Johnson then began to empty his pockets, revealing two bags of marijuana and a bag on heroin. Pike arrested him.

Johnson filed a motion to suppress the drugs as fruits of an unlawful search and seizure. The trial court denied the motion, and he was convicted on two counts of criminal possession of a controlled substance and sentenced to five years in prison. On appeal, the Appellate Division affirmed, ruling that Pike’s actions were lawful at every stage of the encounter with Johnson. He timely appealed.

The Court began its analysis by declaring Pike’s frisk of Johnson “clearly runs afoul of level 3” of the De Bour framework for determining whether police-­initiated encounters with individuals are lawful. See People v. De Bour, 352 N.E.2d 562 (N.Y. 1976). It stated that in order to conduct a level 3 stop and frisk under De Bour, police are required to have at least “reasonable suspicion that the particular person has committed or is about to commit a crime,” People v. Benjamin, 414 N.E.2d 645 (N.Y. 1980), or that the person is armed and dangerous. People v. Carney, 444 N.E.2d 26 (N.Y. 1982).

[Note: the four levels of street encounters under the De Bour framework, with degree of suspicion by law enforcement and corresponding permissible response, are as follows: (1) Level 1: objective credible reason – may approach to request information by asking non-­threatening questions but may not request permission to search; (2) Level 2: founded suspicion – common law right of inquiry applies, meaning pointed questions may be asked and may request permission to search; (3) Level 3: reasonable suspicion – may forcibly detain, frisk for weapons, handcuff, and pursue; and (4) Level 4: probable cause – may arrest and conduct full search incident thereto. De Bour.]

The Court determined that Johnson’s actions did not give rise to reasonable suspicion justifying a stop and frisk under Du Bour. It explained that Pike’s observations simply do not reasonably support the conclusion that Johnson was armed or that he had committed or was about to commit a crime. Johnson’s actions constituted “innocuous behavior,” according to the Court. See People v. Carrasquillo, 429 N.E.2d 775 (N.Y. 1981). Thus, the Court ruled that the evidence should have been suppressed.

Accordingly, the Court reversed the Appellate Division and dismissed the indictment. People v. Johnson, 2023 N.Y. LEXIS 763 (2023).  

Writer’s note: Judge Jenny Rivera wrote a lengthy and insightful concurrence that anyone with an interest in the legal framework governing street encounters between law enforcement and members of the general public in New York is encouraged to read. Judge Rivera explained New York’s overarching approach to police-­citizen encounters this way: “De Bour rejected the Federal Constitution’s ‘all or nothing approach’ to seizures of persons by emphasizing the primacy of the right to be free from aggressive governmental interference and more broadly defining the term ‘seizure’ to mean a significant interruption with an individual’s liberty of movement.” De Bour. (internal edits and quotation marks omitted)

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