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Law School Case Brief

People v. De Bour - 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976)

Rule:

In evaluating the police action the court must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible. A court bears in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence. The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. 

Facts:

Two cases involving similar issues were consolidated for review. In the first case, defendant Louis De Bour was stopped by police officers while walking on the street in the middle of the night. The officer noticed a slight waist-high bulge in De Bour's jacket. The officer asked De Bour to unzip his coat and discovered a weapon. De Bour was arrested for possession of the gun. His motion to suppress was denied at his subsequent prosecution in New York state court, and he pleaded guilty. The appellate division affirmed. In the second case, the police had an anonymous phone tip that led them to defendant Milton La Pene, III in a bar. The police ordered La Pene to freeze and raise his hands, and they discovered a loaded pistol. La Pene was arrested for possession of a weapon, and after his motion to suppress was denied, he pleaded guilty. The appellate division affirmed. 

Issue:

Can a police officer, in the absence of any concrete indication of criminality, approach a private citizen on the street for the purpose of requesting information?

Answer:

Yes

Conclusion:

The court affirmed the conviction of De Bour, holding that the police could approach a citizen on the street for the purpose of requesting information so long as there was a reason sufficient to justify the police action. However, for the second case, the court reversed and dismissed the indictment of La Pene, holding that the circumstances of the confrontation through an anonymous phone tip did not supply the requisite degree of belief to sustain a frisk. The court held that in evaluating the police action the court must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible. Courts bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action were justifiable as the precipitating and attendant factors increase in weight and competence. The minimal intrusion of approaching to request information was permissible when there was some objective credible reason for that interference not necessarily indicative of criminality. The next degree, the common-law right to inquire, was activated by a founded suspicion that criminal activity was afoot and permitted a somewhat greater intrusion in that a policeman was entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. 

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