The approach by a police officer of a parked vehicle is governed by the same rules that govern police-civilian street encounters. The standard that governs the authority of the police to approach a stopped car, or perhaps more correctly stated, the limitation placed upon the authority of the police to approach a parked car is found in the seminal case, People v. DeBour, 40 NY2d 210, 386 NYS2d 375 (1976). DeBour sets forth a four-tiered analysis of escalating police contact with and restraint of persons on the street.
The least intrusive encounter permits an officer to approach an individual to request information where there is “some objective credible reason for that interference not necessarily indicative of criminality.” People v. DeBour, supra at 223.
When performing a public service function, police have wide latitude in the approach of individuals. When however, police are engaged in their criminal law enforcement function, they cannot approach a citizen to request information on mere whim or caprice, and must do so on account of an articulable basis, that is, on account of an objective, credible reason. People v. Donnie Powell, 2007 NY Slip Op 51427 (U), 16 Misc 3d 1115 (A); see also People v. Hollman, 79 NY2d 181, 581 NYS2d 619 (1992); People v. Rutledge, 21 AD3d 1125, 804 NYS2d 321 (2d Dept. 2005).
If the officer’s approach is based on nothing more than idle curiosity, the inquiry will be improper. People v. Allende, 39 NY2d 474, 384 NYS2d 416 (1976); People v. Kojac, 176 Misc.2d 187, 671 NYS2d 949 (Sup. Ct. NY Co. 1998).
In People v. McIntosh, 96 NY2d 521 (2001) at 526-527, the Court of Appeals clearly stated that “In determining the legality of an encounter under DeBour and Hollman, it has been crucial whether a nexus to conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information. The fact that an encounter occurred in a high crime vicinity, without more, has not passed DeBour and Hollman scrutiny.”
Prior incidents of criminality at a particular location do not alone justify any level of intrusion. People v. McIntosh, supra; People v. Rutledge, 21 AD3d 1125, 804 NYS2d 321 (2nd Dept. 2005).
In People v. Miles, 82 AD3d 1010, 918, NYS2d 594 (2d Dept. 2011), the Appellate Division, Second Department ruled that the “Supreme Court properly determined that the arresting officers lacked an objective, credible reason for approaching the stopped car in which the defendant was a passenger, identifying themselves as a police officer, and shining at least one flashlight into the car.” The Court held that a police officer cannot approach a stationary vehicle merely because the area is a high crime area or because there have general complaints in the neighborhood of drug or gang activity.
In People v. Pizzo, 144 AD2d 930, 534 NYS2d 249 (4th Dept 1988), the Appellate Division reversed a conviction because of the trial court’s denial of the defendant’s motion to suppress where the defendant’s vehicle had been approached by police officers while it was parked in a shopping mall at 2:00 AM. The Appellate Division suppressed the evidence subsequently seized on the ground that the police did not have an articulable reason to justify making “even a brief inquiry.” The Court held that “The officer observed no possible violations involving the defendant’s vehicle, nor were the police in the process of investigating a specific crime. Therefore the officer’s approach was based upon nothing more than a whim, caprice, or idle curiosity (People v. DeBour) and could not be justified because the Town of Victor had a high burglary rate.”
If a police officer testifies in conclusory terms about a pattern of crime in a neighborhood, his failure to establish the pattern with any specificity will preclude a court from finding that the actions of occupants in an automobile fit that pattern; as a result, the stop will be improper. People v. Herrera, ___Misc.2d___, NYLJ (Sup. Ct. Queens Co. 1999).
An officer cannot make a stop because of the occupant’s ethnic identity. People v. La Borde, 66 AD2d 803, 410 NYS2d 886 (2d Dept. 1978).
It is understandable that Courts are sensitive to the need for and recognize the difficulties attendant upon vigilant law enforcement efforts in a society whose citizens are all too often the victims of crime, but the Courts must have an obligation to be ever vigilant to ensure that such considerations do not overwhelm the constitutional bulwarks which have historically insured one’s right to be secure against unreasonable and unjustifiable governmental intrusions upon one’s privacy and security.
If you have any questions or need any other additional information, do not hesitate to call Michael A. Arbeit, P.C. today for a free and confidential consultation.