New York’s Gray on Investigative Stops

How the Court of Appeals has Restricted Stops of Citizens by Police

By Gerald P. Casertino

Gerald Casertino is currently an incoming associate with Murphy Burns LLP in Albany, New York, focusing on municipal defense and §1983 actions. He has also served as a police officer since 2017.

Jerry graduated summa cum laude from Albany Law School with his J.D. in 2021. He was a member of the Albany Law Review and a Sponsler Fellow/Teaching Assistant in Criminal Law, Torts, and Contract Law. He holds a bachelor’s degree, magna cum laude, from Siena College and is originally from Glens Falls.

The year 2020 will be lauded as forever changing policing, especially in New York State. But the necessity to curb criminal activity and ensure public safety remains.

High-profile police-related deaths, rising crime, and the implementation of bail and discovery reform, all combined with the New York Court of Appeals’ decision in People v. Hinshaw, make the job of police officers more difficult. This paper will address how the New York Court of Appeals has restricted investigative stops beyond what is required by the federal constitution.  

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To read the paper, open HERE. 

Application of De Bour by the New York State Court of Appeals

& More

By Andrea A. Long
Andrea Long, a 2013 graduate of Albany Law School, is an Assistant Corporation Counsel for the New York City Law Department.  While at Albany Law, she was the Executive Editor of the Center for Judicial Process, as well as an Associate Editor of the Albany Law Review. She was both the winner and Best Oral Advocate of the 2011 Gabrielli Appellate Advocacy Competition and was a member of the Albany Law School team that competed in the national Spong Invitational Moot Court Tournament. Andrea prepared this presentation for Professor Bonventre's State Constitutional Adjudication seminar, spring 2013.

The Court of Appeals' 1976 decision in People v. De Bour established requirements to justify increasing levels of police intrusions, from a simple approach and innocuous question to a full arrest and search.
The De Bour requirements, initially outlined and later reaffirmed in opinions by Chief Judge Sol Wachtler, have served as bedrock protections against arbitrary police encounters in New York--and have no parallel safeguards in U.S. Supreme Court jurisprudence.
Andrea Long's power point presentation takes a look at De Bour and it's reaffirmation and frequent application by New York's highest court, particularly significant today in light of the challenges to New York City's controversial stop & frisk policy. --vmb

(click to enlarge)

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To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

Essay: Courts versus NYC's Stop & Frisks

By Andrea Long
Andrea Long, a third-year student at Albany Law School, is the Executive Editor of the Center. She is a magna cum laude graduate of the Crane School of Music at SUNY Potsdam. Andrea is a Senior Editor on the Albany Law Review, she served as Project Director of the Education Pro Bono Project, and she works year-round as a law clerk in the Office of General Counsel of New York State United Teachers. She was both the winner and Best Oral Advocate of the 2011 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. In the Fall 2012 semester, Andrea will be a legal intern in the law school's Domestic Violence Prosecution Hybrid Clinic.


There have always been tensions between maintaining a safe society and abiding by the constitutional rights of its citizens.  These tensions have recently come to a head in New York City, in a situation one federal judge described as a “deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.”  Floyd v. City of New York, 2012 WL 1868637 (S.D.N.Y. May 16, 2012).

The New York City police department’s stop and frisk policies have been widely criticized, most notably by two Appellate Division decisions overturning weapons convictions obtained through what were held to be unconstitutional stops and frisks.  See In re Darryl C., 2012 WL 2383852 (N.Y. App. Div. 1st  Dep’t June 26, 2012); In re Jaquan M., 2012 WL 2532761 (N.Y. App. Div. 1st Dep’t July 23, 2012).

It is likely the stop and frisk policies will ultimately be resolved by New York’s highest court, the Court of Appeals, in the near future.  In order to understand the interplay between our Constitutional rights, police stop and frisk policies, and how judicial intervention may shape those policies in the future, some background on search and seizure law and police encounters is necessary.

The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  U.S. CONST. amend. IV.  To preserve a safe society and keep crime at a minimum, it is well-settled in both federal and New York case law that, in some situations, police have the authority to question, detain, search, or arrest individuals.

In order to avoid infringing unduly on an individual’s constitutional rights, New York Court of Appeals decisions have mandated that these invasions of privacy be justified by an increasing level of suspicion and cause. See People v. DeBour, 40 N.Y.2d 210 (1976); People v. Hollman, 79 N.Y.2d 181 (1992). To engage in a constitutional stop, a police officer must have reasonable suspicion to believe that the individual has committed a crime. A frisk requires reasonable suspicion that the stopped individual poses a risk to the officer’s safety.  To approach an individual and ask questions indicating criminality, the officer must at least have some reason to suspect that some criminal activity is taking place.

New York City’s aggressive program of stop and frisks has been widely criticized. It is said to target minorities and drug-ridden neighborhoods, and to involve stops and frisks without the requisite degree of suspicion.  Russ Buettner and William Glaberson, Courts Putting Stop-and-Frisk Policy on Trial, N.Y. TIMES (July 10, 2012), http://www.nytimes.com/2012/07/11/nyregion/courts-putting-stop-and-frisk-policy-on-trial.html.  The latest criticisms have come from the courts, specifically from judges on New York State’s mid-level appeals court, the Appellate Division.

The Appellate Division, First Department, which sits in Manhattan, recently overturned two weapons convictions, in each case due to a stop and frisk that, in the court’s view, occurred without the necessary level of suspicion.  In both cases, the majority opinions flatly rejected the argument that reasonable suspicion is formed through an individual’s presence in a high-crime area, or on the “hunch” of an officer.  These decisions suggest a judicial leaning toward reinforcing constitutional rights and drawing boundaries on New York City’s stop and frisk policy by way of the court system.

In one case, while commenting on the right against unreasonable searches and seizures, the court decried “[t]he gradual erosion of this basic liberty [that] can only tatter the constitutional fabric upon which this nation was built.”  In re Darryl C., 2012 WL 2383852 (N.Y. App. Div. 1st  Dep’t June 26, 2012).

In that case, a teenager was walking in an area of the Bronx that had recently been the site of multiple gang-related shootings.  A police officer, upon observing the individual holding some sort of black object, watched him put the object in his pocket and continue walking.  After these observations of what the court described as “unexceptional activity,” the officer approached the individual and began to question him about his destination and about the object he had placed in his pocket.  When the officer asked what the object was, he received an answer that he considered suspicious. At that point, the officer frisked the individual. A weapon was uncovered in the process.

The Appellate Division overturned the resulting weapons conviction. It explained that the question in the case was not whether the object found was incriminating. Rather, the question was whether the officer had authority to search the teenager in the first place. In an opinion that seems to show the court taking a definitive stance against the City’s current policy, the majority engaged in a lengthy analysis that emphasized the need for police officers to have justification for a stop and frisk that amounts to more than just “vague concerns” for safety.  The city has announced it will appeal the case to the Court of Appeals.  Buettner and Glaberson, Courts Putting Stop-and-Frisk Policy on Trial.

The majority in Darryl C opinion also cited the federal trial court’s decision in the Floyd case. There, the district judge pointed out that “the policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year.”  Floyd v. City of New York, 2012 WL 1868637.

The case of In re Darryl C. is illustrative of New York City’s policy because it describes seemingly generic, innocuous activity that led to a stop and frisk, presumably due to the appellant’s presence in a high-crime area rather than any more particular reason for suspicion.  That type of situation is exactly why New York City’s stop and frisk policy has been harshly criticized by an increasing chorus of the public, and now, by the judiciary.  As the public outcry grows and the police department continues to stand by its policy, it appears that it will be up to the courts to have the last word on just how far police officers are allowed to go in exercising a hunch.