CONFRONTATIONS INITIATED BY THE POLICE ON
LESS THAN PROBABLE CAUSE
Peter Preiser*
An aspect of fourth amendment practice that has been the subject of considerable recent attempt at refinement is the confrontation initiated by the
police for a reason other than immediate arrest. Typically, this would invove approaching someone who has aroused suspicion to request identification and/or an explanation of the individual's conduct. The "suspect's" response gives cause for heightened suspicion and this, in turn, leads to some
further action by the police. Reciprocal interaction continues and eventually
escalates to the point where incriminating evidence is discovered. The question then is whether the discovery of the evidence was the result of unreasonable interference with the individual's privacy.
The fourth amendment clothes the citizen with the right to be secure
against "unreasonable searches and seizures.'" Analytically, therefore, it
would seem that the parsing of the constitutional issue raised by the above
example might begin with an attempt to pinpoint the stage of the encounter
at which the search or seizure occurred and then move to a consideration of
whether there was a reasonable basis for that action at that time.
The question that lurks in the background is one that has been noted on
numerous occasions but never decided by the United States Supreme Court,
or it would seem, by the New York Court of Appeals, i.e., whether a brief
detention for investigation is permissible if the police reasonably suspect
criminal activity but lack probable cause for an arrest.
The principle that the police may forcibly interfere with a person's right
to be let alone on justification less than probable cause appears to be supported by a plethora of dicta,' but the United States Supreme Court has
upheld convictions where it was necessary to endorse that principle to uphold the conviction in only two situations: first, "a narrowly drawn authority
to permit a reasonable search for weapons for tbe protection of the police
officer," where he has reason to believe that the person he would speak with
is armed and dangerous,' and second, a border patrol checkpoint stop.' The
former was recently characterized by the Court as a sui generis exception to
/
'" Professor of Law, Albany Law School.
The fourth amendment states: "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
I
. . . . " U.S. CONST., amend. IV.
2 See notes 22-28 and accompanying text infra.
:I See Terry v. Ohio, 392 U.S. 1, 27 (1968).
4 See United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
57
----------_._---_ ......_
..
_ .. .
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the probable cause requirement based upon safety considerations.' The latter may well turn out to hinge upon the fact that it is based upon administrative necessities involved with the immigration laws (as distinguished from
the generality of investigating suspicious conduct to prevent crime).' At issue is the question of whether the police are to be permitted to detain for
investigatory purposes in all cases where they have a reasonable, objectivelybased suspicion that a person has committed a crime, or whether the authority to interfere with the freedom of a person on reasonable suspicion is
to be restricted to particular categories of situations.
There is a temptation to reason that the right to detain on less than probable cause applies in any situation where a full scale arrest would be authorized if probable cause were present: an assumption that brief detention on
suspicion is some sort of necessarily included category within the general
arrest power. Where the police have probable cause to believe a crime has
been committed, it presently is generally accepted that an arrest does not
constitute an unreasonable invasion of any fourth amendment right, irrespective of the nature of the immediate situation or of the gravity of the
offense. But such across-the-board reasoning may not apply to detentions on
less than probable cause. The probable cause arrest can logically be found to
serve at least one purpose that has an entirely different objective - appearance before a court .(or the assurance of an appearance before a court) to
"vindicate society's interest in having its laws obeyed. "7 Detention on less
than probable cause cannot be justified by the objective of assuring appearance before a court to vindicate society's interest in having its laws obeyed.
While it is true that this objective may eventually emerge on the basis of
what is discovered as a result of the investigation, there is no justification
for believing that this objective is warranted at the time the police initiate
the detention. There is no probable cause to believe that the suspect committed a crime, but only a suspicion that he did so, and probable cause is
the least that is required in order for this objective (appearance before a
court) to be considered a reasonable one.
Thus, one may logically argue that detention for investigatory purposes
and an arrest, although related to each other in the sense that they both
involve restrictions on freedom of movement, are, in fact, completely different police practices in the eyes of the law. The conceptual difference between the two is that the overall objective of the arrest - to bring a defendant before a court for vindication of society's interest in having its laws
obeyed - exempts that type of invasion of freedom from inquiry beyond
the general question of whether there was probable cause to believe that the
defendant disobeyed the law; while an invasion of freedom for some purpose
other than arrest must rely for its reasonableness upon some particularized
6
6
See Dunaway v. New York, 442 U.S. 200, 209 (1979).
Cf. Delaware v. Prouse, 440 U.S. 648 (1979); Marshall v. Barlow's, Inc., 436 U.S. 307 (1978);
Camara v. Municipal Ct., 387 U.S. 523 (1967).
7 Te"y v. Ohio. 392 U.S. 1, 26 (1968).
1980]
Police-Initiated Confrontations
59
need recognized as sufficient reason to interfere with the citizen's right to be
let alone, the right to personal security protected by the fourth amendment.
Here there must be inquiry into whether the facts and circumstances of the
particular situation demonstrate that the public interest served by the interference outweighs the individual's right to be let alone.
In this connection the Supreme Court has stated that H[c]onsideration of
the constitutionality of such seizures involves a weighing of the public concerns served by the seizure, the degree to which the seizure advances the
public interest, and the severity of the interference with individual liberty. "8
The articulation of a weighing or balancing test may supply a framework for
decision of the question, but it does not point the way in any definitive manner to resolution of the question. Resolution, in this framework, depends
upon whether suspected criminal activity is a grave enough public concern
to justify a brief interference with individual liberty. Here one can see several possible avenues to resolution. One would be to answer the question
with a clear cut yes or no. Another would be to relate the answer to the
gravity of the crime suspected, gauging gravity either on the sentence authorized for the offense or on the basis of the threat of violence or on some
notion of the pervasive incidence of the crime or on some combination
thereof. A third would be to conclude that suspected criminal activity of any
kind is a grave enough public concern to justify a brief interference with
individual liberty, but only where the interference might reasonably advance
the public interest.
This last possihility furnishes a useful perspective for analysis. Both the
United States Supreme Court and the New York Court of Appeals have consistently supported the principle that the police have a right and a duty to
investigate suspicious conduct.· It appears unlikely that either of these
tribunals would conclude that investigation of criminal conduct is not a sufficiently grave public concern to justify a brief detention for questioning.
But can such a detention advance the public interest? In order for the detention to advance the public interest to any significant degree, there must
be something the public interest might legitimately gain from the detention.
The benefit to the public interest must be one that would reasonably accrue
from the invasion of the suspect's right to be let alone. This brings into
focus some troubling threshold issues. The question of whether there would
be a legitimate gain would depend upon the extent of the information a
suspect might be expected to impart without violation of any other constitutional right; for example, whether a suspect who is detained against his will
• Brown v. Texas, 443 U.S. 47, 51 (1979).
" See Terry v. Ohio, 392 U.S. 1 (1968) (where the court stated: "One general interest is .
that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior ... ," [d. at .22). See
also Schneckloth v. Bustamunte, 412 U.S. 218, 225 (1973); People v. Howard, 50 N. Y.2d 583,
590 (1980).
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on reasonable suspicion has a duty to furnish information that will aid the
police investigation (e.g., identification)," whether the suspect's silence at
the time of such detention can be used to impeach his credibility if he subsequently is accused of the crime and testifies to an exculpatory story at his
trial," whether flight will serve as evidence of guilt or permit escalation to
probable cause," and, in general, whether the police should be permitted to
detain for the sole purpose of eliciting information from a suspect." The
answers here, if they be in the negative, may lead to the conclusion that
there is no proper purpose to be served by a brief detention for investigation, and it therefore cannot legitimately yield any benefit to the public
interest.
Before probing further, it is useful to observe that the situations in which
the courts have most warmly supported invasions of privacy on less than
probable cause can be distinguished on the ground that a legitimate benefit
to public interest was apparent. These cases fall into two hasic categories:
the search for weapons, and the stopping of a motor vehicle.
Turning first to the search for weapons, if one accepts for the moment the
proposition that a policeman has the right to address questions to members
of the public in the course of his duties, then an invasion of privacy to frisk
or search for weapons where he has a reasonable suspicion that the one he
has approached is armed and dangerous reasonably advances the public interest with respect to a grave public concern. The grave public concern in
this case is that the suspect will answer the officer's question with a bullet.
An invasion limited to a brief frisk for weapons is a reasonable way of advancing the public interest in preventing harm to the officer. But here the
invasion is not aimed at detention for the purpose of questioning - it is
aimed rather at the officer's safety, irrespective of whether he has the right
to detain the suspect for questioning. In Terry v. Ohio," the Court was
explicit on this point, and the opinion of the Court specifically noted that it
was not passing upon "the constitutional propriety of an investigative
'seizure' upon less than probable cause for purposes of 'detention' and/or
interrogation. "" Indeed, as previously noted, neither the Supreme Court nor
the New York Court of Appeals has ever passed upon this question, at least
in the context of a fourth amendment suppression issue.
The vehicle stop presents a closer case. The distinction in a vehicle stop
situation is that the interference is not for the sake of safety of the officer,
but rather for investigation. Moreover, the encounter does not begin with a
See Brown v. Texas, 443 U.S. 47 (1979).
Jenkins v. Anderson, 100 S. Ct. 2124 (1980) (the court held that the fifth amendment is
not violated by the use of prearrest silence to impeach a criminal defendant's credibility),
i2 For a discussion of toe implications of flight, see notes 95-104 and accompanying text
infra.
13 For a discussion of the right of the police to detain in order to elicit information from a
suspect, see notes 119-39 and accompanying text infra .
.. 392 U.S. 1 (1968).
l~ Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
(0
II
1980J
Police-Initiated Confrontations
61
question, but rather with a signal that indicates a command to stop for police action (e.g., to "pull over"). Nevertheless, continuing with the assumption that a policeman has the right to address questions to members of the
public in the co"urse of his duties, it can be observed that the stopping of the
vehicle is a necessary prerequisite to the task of addressing a question to the
operator. Thus, although the suspect has been detained without probable
cause," the invasion of freedom is a reasonable way of advancing a public
interest: viz., the need for the police to address questions to people. Most
significantly, however, the vehicle operator once stopped is now in the same
position as the pedestrian, and the question at this point is whether he may
simply drive away without answering - whether the operator is free to
leave, or whether he can be detained against his will while pertinent questions are directed to him. This is, as in the case of the pedestrian, still an
open question.
It is extremely important at this point to take note of another difference
in the vehicle situations that may render emerging precedent inapplicable to
the basic question. There frequently are administrative reasons for stopping
automobiles that have nothing at all to do with general criminal investigation. Thus, an automobile may be stopped at a fixed checkpoint for examination of safety equipment or ownership papers," or a vehicle may be
stopped at the functional equivalent of the United States border for an immigration check. ,. In these situations the person who is operating a motor
vehicle or seeking to pass through a spot appointed as the functional
equivalent of a border inspection station may have a special duty to answer,
and the government may have a right to detain for the purpose of obtaining
an answer or even to arrest if the answer is not forthcoming .."
In order to better pinpoint consideration of the basic issue, which is the
extent to which the police may invade privacy or freedom of movement for
investigatory purposes, it may be helpful to pose a hypothetical. Suppose a
16 It has been established that the stopping of a vehicle constitutes a seizure. See Delaware v.
Prouse, 440 U.S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976);
United States v. Brignoni-Ponce, 422 U.S, 873, 878 (1975); People v. Ingle, 36 N.Y.2d 413. 330
N.E.2d 39; 369 N. Y.S.2d 67 (1975).
Since such a stop is a "seizure," there must be specific articulable facts upon which to base a
reasonable suspicion. See Delaware v. Prouse, 440 U.S. 648, 654 (1979) {"the reasonableness
fltandard usually requires, at a minimum, that the facts upon which an intrusion is based be
(",apable of measurement against 'an objective standard' "); People v. Ingle, 36 N.Y.2d 413, 420,
:J30 N.E.2d 39, 44. 369 N.Y.S.2d 67. 74 (1975) ("It is enough if the stop is based upon 'specific
And articulable facts . . . .''' (citations omitted». The New York Court of Apperus has nevertheless approved such stopping for investigation on less than probable cause. People v. Singleton, 41 N.Y.2d 402, 361 N.E.2d 1003, 393 N.y.s.2d 353 (1977).
17 See Delaware v. Prouse, 440 U.S. at 656-57.
IS See United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). See also United States v.
Brignoni-Ponce, 422 U.S. 873, 878-80 (1975).
19 This question was left open in Brown v. Texas, 443 U.S. 47, 53 n.3 (1979) ("We need not
decide whether an individual may be punished for refusing to identify himself in the context of
a lawful investigatory stop which satisfies Fourth Amendment requirements.").
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police officer reasonably suspects that an individual is trafficking in narcotics and approaches that person in an airport or a bus terminal to question
the suspect. Upon walking up to the suspect, the officer identifies himself
and requests the suspect to do likewise, but instead of answering, the suspect simply continues to walk (or quickens his pace). If the policeman
should reach out to hold the suspect for the purpose of addressing a second
request or a question to him and as a result of the physical contact inherent
in this seizure should inadvertently discover incriminating evidence, must
the evidence be suppressed? In other words, can the policeman enforce a
brier detention against the suspect's will?
This situation does not fall into the Terry rubric, because that sui generis
exception to the probable cause requirement for invasion of the right to be
let alone is based upon safety considerations,20 and the officer here is not
acting to protect his safety." Nor does this situation warrant an analogy to
the stopping of a motor vehicle because, as pointed out above, the stopping
of the motor vehicle was for the purpose of addressing the question to the
suspect and not for the purpose of underscoring the officer's right to receive
an answer. Having exhausted these two possibilities, we have exhausted the
precedents that uphold seizures on less than probable cause in the United
States Supreme Court and the New York Court of Appeals decisions. The
decisions that deal directly with the stopping of a "suspect" for investigative
purposes have resolved the situation on one of two bases without deciding
the issue: (1) a finding that the officer did not have a justified reasonable
suspicion that the defendant was engaged in criminal activity, and therefore
the police action was unreasonable on that ground so its fruits must be suppressed, or (2) a finding that the evidence was discovered as a result of the
suspect's voluntary submission in a spirit of cooperation with the law.
Nevertheless, there is strong support in dicta for the proposition that,
given reasonable suspicion based upon objective facts, a police officer has
the right to detain a person against his will (which would seem to include
the right to hold him by the arm) for a brief period of investigative questioning. During the past year or so, the Supreme Court on several occasions
has referred without criticism to the following passage from Mr. Justice
White's concurring opinion in Terry u. Ohio: 22
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate
and go on his way. However, given the proper circumstances, such as those in
See Dunaway v. New York, 442 U.S. 200, 209 (1979).
In fact, in this case, the officer could not make a lawful search for weapons since there is
no particularized reason to suspect that the subject is armed and dangerous. See Ybarra v.
Illinoi', 444 U.S. 85 (1979); Sibron v. New York, 392 U.S. 40 (1968).
22 For references to Mr. Justice White's concurrence, see Brown v. Texas, 443 U.S. 47, 53 n.3
(1979); Michigan v. DeFillippo, 443 U.S. 31, 44-45 (1979); Dunaway v. New York, 442 U.S. 200,
210 n.12 (1979); Reid v. Georgia, 100 S. Ct. 2752, 2753 n.2 (1980).
20
21
1980]
63
Police-Initiated Confrontations
this case [Terry], it seems to me the person may be briefly detained against his
will while pertinent questions are directed to him. Of course, the person
stopped is not obliged to answer, answers may nofbe compelled, and refusal to
answer furnishes no basis for an arrest, although it may alert the officer to the
need for continued observation.23
Additionally, there is the more recent statement in the following dictum
from Brown u. Texas:
We have recognized that in some circumstances an officer may detain a suspect
briefly for questioning although he does not have "probable cause" to-believe
that the suspect is involved in criminal activity, as is required for traditional
arrest. However, we have required the officers to have a reasonable suspicion,
based on objective facts, that the individual is involved in criminal activity.24
And, interestingly, this latter statement was reiterated this term in an opinion by Mr. Justice White, joined by Justices Brennan, Marshall, and Stevens, dissenting in United States u. Mendenhall."
These dicta and other notations by the Court indicate that the issue is
currently coming into focus in the cases. For example, in Brown u. Texas,"
decided only last term, where the defendant was prosecuted for refusing to
identify himself to an officer who had stopped him, the Supreme Court disposed of the case on the ground that the circumstances of the suspect's behavior did not justify a reasonable suspicion that he was engaged in criminal
conduct, but the Court recognized as an open question the issue of "whether
an individual may be punished for refusing to identify himself in the context
of a lawful investigatory stop which satisfies Fourth Amendment requirements."" And just this term, the Court observed that "the legality of temporarily detaining a person at the scene of suspected drug activity to secure
" search warrant may be an open question."" In addition, it is submitted
that the question raised here is at the heart of the three-way split in the
most recent opinions of the Court in this area.'· And, not surprisingly, the
New York Court of Appeals is wrestling with the issue as well.'·
Given, as noted above, the strong support for the proposition that the
police have a right and a duty to investigate where they reasonably suspect
criminal activity," and assuming that the courts will continue to view official pressure as acceptable conduct that does not negate consent because
"few people will yield up incriminating information in the absence of official
"
"
..
"
Terry v. Ohio, 392 U.S. 1, 34 (1968).
443 U.S. 47, 51 (1979) (citations omitted) .
See 100 S. Ct. 1870, 1886 (1980).
443 U.S. 47 (1979).
~1 [d. at 53 n.3.
26 Rawlings v. Kentucky, 100 S. Ct. 2556, 2564 (1980).
29 See United States v. Mendenhall, 100 S. Ct. 1870 (1980). See notes
ing text infra.
80 People v. Howard, 50 N.Y.2d 583 (1980).
Jl See note 9 and accompanying text supra.
59~65
and
accompany~
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action of some kind,"" then we can expect this area of the law to be the
subject of extensive further development. Two strands for this development
appear on the horizon: first, the obvious route, which is to expand the types
of situations in which detention for investigation will be permitted; and second, the more subtle path, which consists of greater reliance upon the doctrine of consent with consequent avoidance of the need to require demonstration of an objectively based, reasonable ground for police invasion of the
privacy of the suspect. If the former route should be followed, the path
might bring us to judicial approval of laws or practices that require a person
who is reasonably suspected of criminal activity to submit to a brief period
of detention for the purpose of responding to questions," furnishing identification," or for fingerprinting or photographing," or even to return to the
scene of a crime for identification by a victim,36 just to note a few of the
situations the courts have faced recently. The latter route, greater reliance
upon the doctrine of consent, is not on its face logically inconsistent with
the notion of expanding the situations in which detentions on less than
probable cause will be legitimatized, but it is submitted, in the context of
legal analysis, it is a contrary approach, at war with such notion, and may
offer wider latitude for police use of official pressure in conducting investigations. The reason the two approaches conflict is that the vitality of the con·sent doctrine depends upon limiting the number of instances where invasion
of an individual's fourth amendment liberty on less than probable cause is
deemed to be a legitimate practice.
Where an invasion of fourth amendment liberty occurs, the courts will
scrutinize the reasonableness of the invasion, and the legitimacy of any consent (e.g., the consent to a search by a person who has been stopped by the
police) will depend upon whether or not the initial invasion was legitimate.
Thus, as will be shown, a potent weapon to emasculate the common police
claim that the suspect consented to a search of a handbag or of pockets is a
showing that the suspect had been stopped unlawfully. A handy remedy for
this weapon is to raise the threshold of the level of interference with freedom of movement that qualifies for judicial scrutiny. There are at least two
ways of doing this without directly crossing any line that has yet been drawn
by the United States Supreme Court. The first would be to directly raise the
threshold, and the second would be to limit the recognition of the practice
of seizing on less than probable cause, which would mean that in situations
where the police could not seize on less than probable cause they would have
to have probable cause or let a suspect leave. This latter method would raise
the threshold indirectly, because there would be a tendency to excuse more
Schneckloth v. Bustamante, 412 U.S. 218, 224 (1973).
See United States ,v. Mendenhall, 100 S. Ct. 1870 (1980); United States v. Brignoni-Ponce,
422 U.S. 873 (1975).
3~ See Brown v. Texas, 443 U.S. 47 (1979).
as See Davis v. Mississippi, 394 U.S. 721, 726-27 (1968).
S6 See People v. Brnja, 50 N.Y.2d 366 (1980).
32
33
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Police-Initiated Confrontations
65
and lllore intense interferences as being minor in cases where the need to
investigate cried out for the action taken.
A variation on the hypothetical given above will help to bring this into
focus. There the officer reached out and grabbed the suspect. But suppose
there was no use of force or issuance of an authoritative command. Suppose
the suspect stops upon request - a request made by a person who has identified himself as a law enforcement officer and thus backed by the implication that it is made in the performance of official duty. Once the suspect has
stopped, the officer then requests that he identify himself and explain where
he is coming from and where he is going. He also asks to see his tickets or
other verification. After receiving conflicting information (e.g., the name
given does not match the name on the ticket or the ticket does not match
the information given as to where the suspect is coming from or is going or
the officer's observation as to the train, bus or plane involved, etc.), the officer asks the suspect whether he or she is carrying drugs and receives a
negative response. The officer then asks whether he can search the suspect
or his belongings, and the suspect says something like "suit yourself" or "I
have nothing to hide" or "go ahead." The officer eventually discovers incriminating evidence and then makes a probable cause arrest."
At the ensuing suppression hearing, the prosecution will urge the court to
find that the defendant consented - i.e., to label the suspect's responses as
action undertaken "voluntarily and in a spirit of apparent cooperation with
the officer's investigation .... - from the moment the officer approached to
the point at which the emergence of evidence sufficient for probable cause
made an arrest reasonable. The defense will urge the court to find that the
officer unreasonably interfered with the defendant's freedom by approaching
and questioning him - i.e., that the officer's conduct caused the defendant
to "stop," that the "stop" constituted an invasion of the defendant's privacy, and that the officer had no reasonable basis for the stop at the time of
the approach, ergo an unreasonable interference with the defendant's freedom. The defense then will argue that even if the court were to find that
there was consent to the search itself, the officer obtained the consent by
exploiting his unlawful conduct in "stopping" the defendant. Since the cases
furnish virtually unassailable precedent to support the proposition that a
search made under our fact pattern is sustainable as a consented to search,'·
the issue will come down to a question of whether or not the so-called
"stop" unreasonably invaded some fourth amendment right of the defendant. In other words, the focus will be upon the course of events preceding
17 The facts given in this hypothetical are similar to those in United States v. Mendenhall,
100 S. Ct. 1870 (1980).
" Sibron v. New York, 392 U.S. 40, 63 (1968).
~II See United States v. Mendenhall, 100 S. Ct. 1870, 1877 (1980). See also Dunaway v. New
York, 442 U.S. 200 (1979); United States v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bus",monte, 412 U.S. 218 (1973); Terry v. Ohio, 392 U.S. 1 (1968); People v. Meredith, 49 N. Y.2d
1(J38 (1980).
.
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the consent to search. If there has been an unreasonable invasion of the
defendant's right to be let alone, then the evidence disclosed by the search
must be suppressed, because the consent to search then would be tainted
through exploitation of unreasonable police conduct'" (unless the prosecu,
tion can show some intervening circumstance between the "stop" and the
"consent" to constitute sufficient attenuation ~ i.e., a break in the chain of
causation - to remove the taint of the exploitation of unreasonable conduct
to obtain the consent). However, absent such unreasonable invasion, the
consent will be upheld.
It is to be noted at this point that in the above hypothetical the defense
argument as to the "stop" rests upon two factors: an invasion of the defen·
dant's right to be let alone, and the reason for the invasion (i.e., the need for
it). There is an assumption here that the Constitution guards a person from
all unreasonable invasions. But, conceding arguendo that the officer's conduct constituted an invasion of the defendant's right to be let alone, it does
not necessarily follow that the invasion was of sufficient magnitude to rise to
the level of a constitutionally cognizable affront. There is room for logical
argument that the Constitution does not guard against petty annoyances no
matter how unreasonable the basis for an annoyance may be. There is room
to argue that the invasion of the right to be let alone must be a serious
invasion before the defendant is entitled to judicial scrutiny of the reasonableness of the basis for the police conduct. The Constitution bars unreason·
able "seizures" and one may argue that it is not concerned with the reasonableness of any intrusion that falls short of a "seizure." This view was
recently articulated by Mr. Justice Stewart in his opinion in United States
u. Mendenhall," and it may well be the view of a majority of the Court."
The question then would be to define "seizure." Mr. Justice Stewart
would define that term as follows: "a person is 'seized' only when by means
of physical force or a show of authority, his freedom of movement is reo
strained . . . . As long as the person to whom the questions are put remains
free to disregard the questions and walk away, there has been no intrusion
upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification."4S This definition, however, stilI does not lead us to any conclusion in the hypothetical case under
discussion. It may lead us to a conclusion in the hypothetical as it stood
before the variation was introduced, where the officer reached out and
grabbed the suspect, but it does not tell us whether the suspect who stopped
-10 See Reid v. Georgia, 100 S. Ct. 2752 (1980); Dunaway v. New York, 442 U.S. 200 (1979);
Brown v. Illinois, 422 U.S. 590 (1975).
" [00 S. Ct. 1870, 1875·78 (1980).
U
Only Mr. Justice Rhenquist expressly joined in the portion of the Mendenhall opinion
that expressed this view (Part II~A). However, Mr. Justice Powell in a concurring opinion
joined by Mr. Justice Blackmun and by the Chief Justice indicated that he did not necessarily
disagree with that view. 100 S. Ct. at 1890 n.1 (1980).
i3 [d_ at 1877.
1980]
Police-Initiated Confrontations
67
WHS free to disregard the questions and walk away. Mr. Justice Stewart
«dds, however, that we can reach a conclusion in such case by determining
whether "in view of all of the circumstances surrounding the incident, a rea",mabIe person would have believed that he was not free to leave. " .. This
further elucidation may narrow our inquiry, but still does not and will not
lead us to any conclusion, because it still leaves open a gaping policy issue.
'['hat issue is the legal effect to be given to the fact that in a substantial
/lumber of the stops, the suspects do not attempt to leave. But Justice StewIIrt goes further. He gives us examples of circumstances that would indicate
when a reasonable person would believe that he was not free to leave, in a
"ase where there is no actual physical restraint or a command - i.e., "the
threatening presence of several officers, the display of a weapon by an oflicer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request
might be compelled," and then states that "[i]n the absence of some such
ovidence, otherwise inoffensive contact between a member of the public and
the police cannot, as a matter of law, amount to a seizure of that person.""
Now his meaning is clearer. His opinion comes extremely close to a policy
decision that the Constitution does not require judicial scrutiny of the reasonableness of the stop in our hypothetical as varied. Indeed, he may be
holding that the vast majority of police stops of pedestrians will not be scrutinized to determine the basis on which the police selected the suspect for
pressuring a "consent" to further invasion of privacy'" This reasoning logically leads to the conclusion that police-initiated encounters need not be
justified: (a) prior to the point where the seizure occurs; or (b) at all, if a
case can be made out to show that the suspect revealed the incriminating
evidence voluntarily, in a spirit of cooperation, and before seizure of any
kind.
At stake therefore is the scope to be allowed to the police in selecting
suspects: whether the police are going to have to justify the original approach or stop on the basis of objective criteria. At stake is the conflict be-
H
[d.
~~
Id.
46 In People v. Howard, 50 N.Y.2d 583 (1980), the New York Court of Appeals was dealing
with a suspect who ran away from police officers who attempted to question him. The court
noted that there was a paucity of authority for this type of occurrence and opined that the
reason for such paucity is "probably because few individuals feel they can walk away or refuse
to answer." Id. at 590.
In United States v. Mendenhall, 100 S. Ct. 1870 (1980), the Supreme Court was dealing with
the stop of a woman who fit the so-called "drug courier profile." See note 57 infra. This has
been the subject of an amazing number of federal cases in recent years. In virtually all of these
cases, the suspect stops and consents without being seized in a manner that would qualify
under the Stewart definition. Evidence of increasing resistance on the part of the courts to the
legitimacy of these stops has started to appear in the lower federal courts, and this might be
the reason for the Supreme Court's sharpening of focus on the "stop" issue. See the very revealing recent opinion of the Second Circuit Court in United States v. Buenaventura-Ariza, 615
F.2d 29 (2d Cir. 1980).
68
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tween the need to permit the police to follow hunches that cannot be justified on an objective basis in a court of law, but proceed rather from some
sixth sense gained through years of police work "on the streets," on the one
side, and the possibility of abuse, because this "sixth sense" may often be
the excuse used to justify an arbitrary whim, at best, or mask a prejudice, at
worst. Where there is no room for scrutiny of police conduct prior to the
point of seizure, then the reason why "official pressure" was applied to a
particular citizen, why this particular person was singled out to be delayed,
to discuss his affairs, and, ultimately, to submit to a search, will escape judicial examination.
The failure to postulate any point at which a suspect has been "seized,"
where there has been no use of force or of an authoritative command, coupled with an exemption of police authority below the level of "seizure" from
fourth amendment scrutiny, would make the question of whether the courts
will scrutinize the reasonableness of police conduct dependent upon the docility of the suspect. If a suspect refuses to stop, and the police use force or
an authoritative command, the law will concede a seizure, and the reasonableness of the officer's action in singling this person out will be subjected to
judicial scrutiny. However, where the suspect stops as requested, the reasonableness of the officer's action will not be examined from the beginning of
the encounter, because the suspect has not been seized. Moreover, the test
of docility - i.e., the standard for judging whether the suspect has consented - is not what one would ordinarily think of in determining whether
a person actually consented. The law does not require willing consent but
rather only the absence of overt coercion. Consent will be found where the
suspect acquiesces voluntarily, and voluntariness in this area of the criminal
law does not connote an act done of free will, unconstrained by interference.
Here an act is voluntary unless it is performed in submission to force or as
an alternative to the use of force. When a suspect is confronted by a policeman who asks him to stop, the test is not whether he wishes to stop or
whether he wants to cooperate, but rather whether his will has been overcome. In this psychological drama, it would seem that the key factor in determining whether his will has been overcome is whether he knows of his
right to refuse (if only to determine whether he thought he was responding
to an authoritative command). But the law is that he need not know of his
right to refuse: that may be a factor in the overall judgment, but it is not
given controlling significance!' Thus,. the fact that a person consents because he believes the law requires him to consent is not sufficient in and of
itself to make his consent involuntary. Indeed, although the Supreme Court
"7 See Schneckloth v. Bustamante, 412 U.S. 218 (1973), in which the Supreme Court held
that "(vJoluntariness is a question of fact to be determined from all the circumstances, and
while the subject's knowledge of a right to refuse is a factor to be taken into account, the
prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a
voluntary consent." Id. at 248-49. See also United States v. Watson, 423 U.S. 411, 424-25
(1976).
1980J
Police-Initiated Confrontations
69
pays lip service to this factor, it seems as a practical matter that it is all but
irrelevant. True it is that we must at some point face the issue of the suspect's docility or totally abandon the consent doctrine. The crucial point,
however, is not the fact that the outcome of the case (insofar as it hinges on
the suppression issue) depends upon the suspect's docility, but rather that a
review of the reasonableness of the officer's conduct depends upon that factor. The question is whether the officer had a right to ask the suspect to
consent to an invasion of his privacy, and that issue should be resolved on
the basis of an objective standard (i.e., whether the specific articulable objective facts and circumstances available to the police at the time of the
request made it reasonable to select or single out this suspect and request
that he consent to submit to an invasion of his privacy by a representative
of his government) and not on the question of his docility.
Moreover, the test is not strengthened, as Mr. Justice Stewart suggests in
Mendenhall, by resort to factors such as the "threatening presence of several officers, the display of a weapon by an officer, some physical touching of
the person of a citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled."" These might be
apt factors in determining whether a subsequent consent to search, for example, was obtained by overcoming the suspect's will, but they yield only a
one-dimensional test of a consent to stop and be detained. They can only
have logical application where forceful and frightening tactics have been
used-they show nothing about consent where such tactics have not been
used. A professional, courteous approach in a well-lighted public place simply has nothing to do with whether or not the suspect is submitting to lawful authority as an alternative to the use of force. Arrests are made under
such circumstances frequently.
Intimidating circumstances employed by the police to make the stop or
"seizure" may have relevance to gauging the magnitude of the intrusion on
privacy when weighing the reasonableness of the interference by the police,
but they should not be used as a measure of whether the suspect consented
to be "seized" in cases where no such tactics were used. For example, what
difference does it make whether or not the police approach is made with the
threatening presence of several officers in judging the issue of consent to
submit? Is there some assumption that a suspect, upon being confronted by
the police, would receive a clue as to whether the law required that he stop
from the fact that there were three officers rather than two, or one? Is there
some assumption that Ms. Mendenhall should have gauged her obligation to
stop on the basis of whether the officers, who are supposed to be professionals in the art of stopping people, were smiling or not? The difference, if
there be one, inheres in weighing the severity of the intrusion as a factor in
gauging the reasonableness of the intrusion:' and not in determining
.. See United States v. Mendenhall, 100 S. Ct. 1870, 1877 (1980).
49 See United States v. Martinez-Fuerte, 428 U.S. 543, 558-60 (1976).
I
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whether the suspect reasonably believed the law required him to stop.
Nevertheless, a conclusion that the police must justify their reasons for
approaching and questioning people when they sense suspicious circumstances would be a serious impediment to law enforcement efforts. In most
cases where stops are considered and have been approved, the assumption
has been that a suspect who did not resist consented (Justice Stewart's
Mendenhall approach in raising the threshold for an invasion of freedom
apparently is an offer of a new horizon). The consent doctrine has strong
roots in our jurisprudence. The United States Supreme Court has found
clear benefits for both law enforcement and the citizen in giving liberal construction to the consent doctrine, basing its judgment upon
the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. Without such investigation those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would
be diminished. llo
Further, the Court has stressed that the test of "voluntaririess" does not
utilize notions of 'but-for' causation, and that since few people will yield up
incriminating information in the absence of official action of some kind, a
suspect's conduct will be deemed voluntary if his will has not been overborne." Thus, in the type of case represented by our hypothetical, it is highly unlikely that a court would hold the suspect's will was overborne. The
holdings both from the Supreme Court and the New York Court of Appeals
evidence a willingness to label a suspect's responses as action undertaken
"voluntarily and in a spirit of apparent cooperation with the officer's investigation,"" when, upon being accosted in a public place, the suspect produces
identification, answers questions about his movements, accompanies the police to a private office or to a lavatory and there submits to further questioning and/or a search of his person (which even may include disrobing)."
In summary then, (a) where there has been no use of physical force or of
an authoritative command, it is virtually impossible to overcome the consent
conclusion, but (b) if a seizure can be hypothesized at some point prior to
the revelation of incriminating evidence, then it is possible (i) to have a test
of the reasonableness of police conduct at that point, and (ii) to conclude
that the consent was obtained through exploitation of an unreasonable
seizure, in which case the evidence will have to be suppressed to deter the
police from making such seizures to obtain consent." Paradoxically, thereSchneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (citations omitted).
See United States v. Watson, 423 U.S. 411, 424-25 (1976); Schneckloth v. Bustamante, 412
U.S. 218, 248-49 (1973).
G~ Sibron v. New York, 392 U.S. 40, 63 (1968).
GS See, e.g., United States v. Mendenhall, 100 S. Ct. 1870 (1980) (in which Mr. Justice Stewart's opinion on the consent issue had the support of a majority of the court); People v. Meredith, 49 N.Y.2d 1038 (1980).
64 See Reid v. Georgia, 100 S. Ct. 2752 (1980); Dunaway v. New York, 442 U.s. 20~ (1979);
lSO
~l
1980]
Police-Initiated Confrontations
71
fore, staunch support of the right to be free from unreasonable interference
by the police, the type of support that insists upon judicial scrutiny of the
reason why the suspect was asked to consent to a search of his person or was
asked to produce documents that may serve to incriminate him, may force
the supporter to advocate increased recognition of the right of the police to
seize on less than probable cause. Equating the approach by the policeman
and his request for information to a "seizure" might be the only way to
review the basis for that action and hence to reach the issue of whether the
consent was tainted." In this connection, a perusal of Mr. Justice Powell's
three-Justice concurrence in United States v. Mendenhall" is revealing.
This opinion treats the terms "seizure" and "stop" as interchangeable.
Parenthetically, although a four-Justice dissent and the Powell three-Justice concurrence in Mendenhall both seemed to approve of investigatory
seizures on less than probable cause, there would be danger in concluding
that a majority of the Supreme Court is willing to endorse investigatory
stops on less than probable cause in cases such as the one posed by the
hypothetical here. Mr. Justice Powell's three-Justice opinion differs markedly from the dissent in appraisal of the sufficiency of the suspicious circumstances necessary for a "stop," and neither of the two opinions squarely held
that a brief forcible detention for questioning is permissible. Further, the
three votes represented by the Powell opinion may well come down on the
side of eschewing the seizure or stop argument in favor of the consent argument, if the Court cannot muster a majority for approval of a "stop" on the
basis of virtually bland factors, such as those involved in the so-called "drug
courier profile."07 The per curiam decision in Reid v. Georgia'· may even be
the herald of this change. There, Justice Stewart, who had authored the
two-Justice view in Mendenhall that no fourth amendment scrutiny was
needed because the level of interference was not sufficient (i.e., that Ms.
Brown v. Illinois, 422 U.S. 590 (1975).
n Perhaps this explains why Mr. Justice Brennan and Mr. Justice Marshall endorse the notion of a seizure to request information. See United States v. Mendenhall, 100 S. Ct. 1870, 1883
(1980) (dissenting opinion of Mr. Justice White, joined by Justices Brennan, Marshall and
Stevens).
" United States v. Mendenhall, 100 S. Ct. 1870, 1880 (1980).
The "drug courier profile" is a law enforcement device which supposedly enables law en-
67
forcement personnel to identify drug couriers through the fact that their behavior exhibits a
number of suspicious characteristics. In United States v. Mendenhall, 100 S. Ct. 1870 (1980),
the defendant was approached by officers because:
(1) [she) was arriving on a flight from Los Angeles, a city believed by the agents to be the
place of origin for much of the heroin brought to Detroit; (2) [she] was the last person to
leave the plane, "appeared to be very nervous". and "completely scanned the whole area
where [the agents] were standing;" (3) after leaving the plane [she] proceeded past the
baggage area without claiming any luggage; and (4) [she] changed airlines for her flight
out of Detroit.
Id. at 1873 n.l. The law enforcement officers felt that the above facts provided reasonable suspicion for their detention of Ms. Mendenhall.
" 100 S. Ct. 2752 (1980).
Albany Law Review
72
[Vol. 45
Mendenhall had not been seized), joined with the four Mendenhall dissenters to render a majority holding that a seizure based on a drug courier profile was unreasonable, because the factors making up the profile created "too
slender a reed" to support the inference of criminal activity." Justice Powell, again writing for the same three Justices, after noting that he agreed "on
the basis of the fragmentary facts apparently relied upon by the. . . agents
in this case, . . . there was no justification for a 'seizure,' "60 pointed out
that he had never held that a "stop" is a "seizure." He issued a reminder
that in Mendenhall he had assumed that a "stop" to request information is
a "seizure" and thus subject to fourth amendment scrutiny, and he reiterated the footnote he included in his opinion in Mendenhall"' to the effect
that his decision in Mendenhall did not mean that he rejects the notion that
a "stop" is not a "seizure," and need not be justified,62
As previously noted the real issue here is whether the police will have to
justify their motivation for selecting the suspect - for accosting him in the
first place. The exemption of the police selection process from judicial
fourth amendment scrutiny would leave the door open to solicitation of
"consent" based upon a "hunch," a "whim" or prejudice right up to the
point where it is clear that the suspect's will has been overborne. The dangers posed by "random," "whim" or "investigatory" stopping are well recognized by the Court." But the Court also recognizes a real need for police
freedom to trust to their "street sense" in investigation of crime. Ergo, perhaps, the reluctance to equate the stop of an automobile (which has been
held to be a seizure"') to the stop of a pedestrian."' Thus, the scales appear
to be closely balanced and herein lies the problem.
In New York State it has been assumed, at least for the last four years,
that judicial scrutiny of this selection process is mandated by the fourth
amendment."' The New York Court of Appeals, noting that the "basic purpose of the constitutional protections against unlawful searches and seizures
is to safeguard the privacy and security of each and every person against all
arbitrary intrusions by government,""7 opined that an intrusion by a police
officer could violate "the spirit of the Constitution" without amounting to a
~$
Reid v. Georgia, 100 S. Ct. 2752, 2754 (1980).
60
Jd. at 2754 n.l.
United States v. Mendenhall, 100 S. Ct. 1870, 1880 n.1 (1980).
Reid v. Georgia, 100 S. Ct. 2752, 2754 (1980).
63 See, e.g., Ybarra v. Illinois, 444 U.S. 85 {1979}; Delaware v. Prouse, 440 U.S. 648 {1979}.
64 See note 16 supra.
66 The Supreme Court has recently granted at least one explicit exception to the requirement
for objective criteria as a basis for interference with an individual. In United States v. Martinez-Fuerte, 428 U.S. at 563-64, the Court exempted the decision of border patrol agents to
selectively refer persons from among those stopped at a roadblock to a second inspection point
for more intensive scrutiny. Without any further explanation, the Court simply noted that "the
intrusion here is sufficiently minimal that no particularized reason need exist to justify it." Id.
at 563 .
.. See People v. DeBoll', 40 N.Y.2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (1976).
" [d. at 217, 352 N.E.2d at 567, 386 N.Y.S.2d at 380·81 (1976).
61
62
1980]
Police-Initiated Confrontations
73
seizure." The court treated the police-initiated encounter as a continuum,
subject to constitutional scrutiny from the moment of approach to the arrest
or clear seizure, and it postulated two distinct levels of interference below
the level of a seizure." The court explained the reason for its approach as
follows:
Due to the tendency to submit to the badge and our belief that the right to
be left alone is "too preciQus to entrust to the discretion of those whose job is
the detection of crime," a policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of
the interference, the gravity of the crime -involved and the circumstances attending the encounter.'lO
The court also saw in its continuum a right on the part of the police to
make a forcible stop and detention for questioning on reasonable suspicion
that a person has committed, is committing or is about to commit a crime."
In support of this latter proposition it cited, without reservation, section
140.50 of the Criminal Procedure Law," and referred generally to Terry v.
68
[d .
.. Id. at 223, 352 N.E.2d at 571-72,386 N.Y.S.2d at 384-85 (1976). In DeBour. the court of
appeals held that:
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.
[d. (citations omitted).
" Id. at 219. 352 N.E.2d at 569, 386 N.Y.S.2d at 382 (1976) (citations omitted).
" Id. at 223. 352 N.E.2d at 571-72, 386 N.Y.S.2d at 384-85 (1976). Thus, the court stated, in
DeBour, that:
Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd 1; see Terry v. Ohio,
392 US 1; People v. Cantor. supra). A corollary of the statutory right to temporarily
detain for questioning is the authority to frisk if the officer reasonably suspects that he is
in danger of physical injury by virtue of the detainee being armed (CPL 140.50, subd 3).
Id.
12 See N.Y. CRIM. PROC. LAW § 140.50 (McKinney Supp. 1979-80). The law provides as
follows:
(1) In addition to the authority provided by this article for making an arrest without
a warrant. a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a
misdemeanor defined in the penal law, and may demand of him his name, address and
an explanation of his conduct.
(3) When upon stopping a person uncler circumstances prescribed in subdivisions one
and two a police officer or court officer, as the case may be, reasonably suspects that he is
in danger of physical injury, he may search such person for a deadly weapon or any
instrument, article or substance readily capable of causing serious physical injury and of
74
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Ohio." However, the court apparently ignored the fact tbat the United
States Supreme Court in Terry had expressly reserved this question," and
that in its opinion in the companion case of Sibron v. New York," it had in
declining to pass upon the facial validity of this statute remarked that it was
"extraordinarily elastic. "76
If it is based upon the United States Constitution, the DeBour opinion
rests upon extremely tenuous foundation. First, of course, there is the assumption that investigatory detention on less than probable cause will be
approved and thus furnish a springboard for testing the validity of consent
at a respectable distance from disclosure of the evidence that gives probable
cause to arrest. As previously noted, this is far from clear and could well be
decided the other way. Secondly, the court of appeals' apparent theory that
constitutional recognition will be given to a continuum from point of contact
through to ultimate arrest" has been severely eroded on a policy level by
Dunaway v. New York;· and may eventually be demolished in the struggle
to strengthen investigation through the "consent" approach as illustrated
above.
In Dunaway the Supreme Court rejected the notion of giving constitutional recognition to any stage between seizure and arrest.7' Most importantly, the Court rejected a "multifactor balancing test of 'reasonable police
conduct under the circumstances' to cover all seizures that do not amount to
technical arrests"·o on the ground that such a test could obscure the enforcement of the protections intended by the fourth amendment, and the
Court stated: "A single familiar standard is essential to guide police officers,
who have only limited time and expertise to reflect on and balance the social
and individual interests involved in the specific circumstances they confront."·' True it is that the Court did not attack or criticize either the noa sort not ordinarily carried in public places by law-abiding persons. If he finds such a
weapon or instrument, or any other property possession of which he reasonably believes
may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it. if lawfully possessed, or
arrest such person.
13 See note 71 supra.
See Terry v. Ohio, 392 U.S. I, 19 0.16 (1968).
" 392 U.S. 40 (1968).
76 [d. at 59.
" See People v. Morales, 22 N.Y.2d 55, 238 N.E.2d 307, 290 N.Y.S.2d 898 (1968) and People
v. DeBour, 40 N.Y.2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (1976). In DeBour the court defined its continuum method as follows:
We 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 are justifiable as the precipitating and attendant factors increase in weight and competence.
40 N. Y.2d at 223, 352 N.E.2d at 571, 386 N. Y.S.2d at 384 (1976).
" 442 U.S. 200 (1979).
1& [d. at 208-10.
80 [d. at 213.
8) Id. at 213-14.
7.
I
I
1980]
Police-Initiated Confrontations
75
tion of a seizure on less than probable cause or the notion of a balancing test
for such a seizure. but those issues were not before the Court. Indeed. although the cases involving seizures on less than probable cause were mentioned by the Court in its Dunaway opinion as "narrow intrusions" judged
by "a balancing test ...·' the Court's opinion clearly indicates that it considers these to be situations that illustrate jealously guarded categorical exceptions to the general rule that probable cause is required for a seizure. The
immediate significance of Dunaway to DeBour reasoning is that the Supreme Court does not view the process of seizure as a continuum. and that
the Court does not think that sliding scale standards are helpful in guiding
the police.
Thus. there is reason for the New York Court of Appeals to reappraise the
sliding scale rationale of DeBour. Moreover. as shown above. the recent Supreme Court opinions in Mendenhall and Reid appear to promise that the
Court will be forced to reappraise its conclusion that intrusions less than
seizures warrant fourth amendment scrutiny. Should a majority of the justices ultimately hold. as appears likely. that this is not so. the New York
Court of Appeals would not be able to rest its DeB our approach upon the
United States Constitution. and would only be able to sustain that approach
by deciding that it is required by the New York State Constitution's parallel
provision on search and seizure. 83
There is. however. another and more immediate reason for the New York
Court of Appeals to reconsider its DeBour approach. It is submitted that
this approach consists of little more than a judicial gloss that obscures analysis of the real problem and plays no significant role in dictating the outcome. As a practical matter it makes little difference whether a police-initiated encounter with a suspect is analyzed in terms of exempting the portion
of it that precedes seizure from judicial scrutiny altogether or is analyzed
pursuant to the DeBour rationale (i.e .• the continuum). because. realistically. when a policeman approaches a suspect "to request information." the
assumption must be that he is doing so in the course of his duties as a representative of the government and that the subject is responding to the authority of the government. Clearly. it should need no citation of authority to
show that a reasonable person in the position of a suspect would not stop
and discuss his business with a stranger who started to ask him questions.
and realistically there should be no blinking the fact that the response to
the officer is a response to the authority of the government and that the
suspect has been stopped by virtue of governmental authority. He may not
have been "seized." but he surely has yielded to a governmental intrusion.
811
[d. at 207-09.
CONST. art. 1, § 12. The pertinent part of the section reads as follows:
The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue. but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
88
N.Y.
76
Albany Law Review
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Since DeBour would permit this type of stopping for the slightest reason,"
and since the DeBour case itself, as well as other cases decided under its
rationale, permit the reciprocal interaction from this stop to escalate to
probable cause in the same manner as the "consent" search situation illustrated in our hypothetical," the judicial scrutiny of the reason for the initial
approach and question by the officer-i.e., the reason for the "request" to
consent to the authority of the government, or it is submitted, the "stop" consists of an exercise in which the court is called upon to decide only
whether there was any possible excuse for the initial approach and question.
A negative answer would just about cut off the ability of the police to initiate a conversation, and of course, the courts have not given a negative answer. The cases reveal that the objective criteria required for the initial selection of the suspect furnish little basis for even requiring retention of the
review process at this stage of the encounter. so
The DeBour approach simply does not face the issue of detention for investigation - it does not furnish a clear cut point at which the authority of
the officer (the reasonableness of his actions) can be tested, and it is submitted, it falls subject to both of the criticisms pointed out in Dunaway confusing standard for guidance' of the officer, and danger of eroding the
rights of our citizens to be free from unreasonable governmental intrusion.
There can be no rational solution to street (or airport) encounters without
squarely facing the issue of whether the police have a right to detain for
investigation on less than probable cause.
The recent New York Court of Appeals decision in People v. Howard"
furnishes an apt illustration of the need to face this issue squarely, because
the majority opinion there, in a closely divided four-to-three split, revealed a
rejection of the notion that the police have the right to make an investigatory seizure on less than probable cause, and the result, as characterized by
the three-judge dissent, "borders on the absurd. "SO
In H award, two officers riding in a car observed a male walking along the
street in an area beset by a high burglary rate carrying a woman's vanity
case (and the court accepted the fact that "it was not uncommon for a burglar to carry away loot in his victim's luggage,"" as testified to by one of the
S~ Under DeBour this situation would constitute a "minimal intrusion" which "is permissible
when there is some objective credible reason." See note 69 supra.
8~ See text accompanying note 37 supra.
86 The "objective criteria" used by law enforcement officers (or the lack thereof) to select a
suspect may be seen in the facts of the DeBour case itself, 40 N.Y.2d 210, 352 N.E.2d 562, 386
N.Y.s.2d 375 (1976) and in the recent case of People v. Moore, 47 N.Y.2d 911, 393 N.E.2d 489,
419 N.Y.S.2d 495 (1979). The difficulty of deciding between "objective criteria" and "prejudiceinspired whims" may particularly be seen in the majority and dissenting opinions in the appellate division in Moore, 62 A.D.2d 155. The appellate division reversed the trial court decision,
and the court of appeals reversed the appellate division.
" 50 N.Y.2d 583 (1980).
~~ [d. at 595.
rd. at 589.
@g
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Police~Initiated
Confrontations
77
detectives). As they passed the suspect they saw him look over his shoulder
in their direction in a manner described as "furtive." He then looked in
their direction two or three more times, and when they pulled the car toward the curb, he reversed direction, crossed to the opposite side of the
street and continued walking. The officers made a U-turn, and the suspect
once again looked in their direction. As their car neared him, his pace quickened. When the car came parallel with the suspect, one of the officers displayed his police shield and said: "Police officer, I would like to speak to
you."" Though looking directly at the officers, the suspect ignored them and
continued walking. At the next opening between the parked cars, the officer
repeated the same words and began to get out of the car. The suspect then
started to run, holding the vanity case to his chest like a football would be
held. A chase ensued, the suspect was cornered and he threw the case to the
side. The suspect was restrained, and the officers retrieved the case, wherein
they found a revolver and heroin. At that point, the suspect was placed
under arrest.
The four-judge majority opinion of the court of appeals equated pursuit of
the subject to seizure for limited detention (a conclusion that appears perfectly sound), and held that the observations by the officers, including the
flight of the suspect, did not furnish sufficient justificati<:>n for a seizure."
Although the court did not expressly reject the notion that a seizure on less
than probable cause for investigation is permissiblp, it stated at several
pointa in the majority opinion (at least four times) that the officers had no
right to pursue "absent probable cause."·' The court cited the New York socalled "stop-and-frisk" law·' as defining when an officer may "stop" a suspect, but the court apparently concluded that "stop" does not mean
"seize. "94
The court rejected the flight of the suspect as sufficient to establish a basis for the seizure (equated in this case to pursuit), because, in its opinion,
the prior observations by the officers did not reveal criminal behavior they were "susceptible of innocent interpretation."·' Accordingly, flight,
without prior evidence of crime, the court opined, is a neutral factor that
cannot create evidence of crime." Although the opinion is not clear on this
point, one gets the impression that the majority did not rule out the possi90 The court of appeals apparently did DOt attach any crucial significance to the fact that the
officers were in plain clothes in an unmarked car, and that there was therefore no proof that the
suspect knew they were officers prior to this identification. The court stated that although the
suspect might have acted evasively Qut of fear for his own safety, at that point the circumstances were sufficient to arouse a basis for the detective to address an inquiry to the suspect.
[d. at 589.
91 Id. at 592.
" [d. at 586, 589, 592.
&3 See note 72 supra.
94 See People v. Howard, 50 N.Y.2d 583, 590~91 (1980).
95 [d. at 590.
9{1 [d. at 592.
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bility of crediting "flight" as a factor that would be sufficient to raise "reasonable suspicion" to "probable cause" in a case where it was of the opinion
that the observations of the officers prior to flight were sufficient for an objective demonstration of reasonable suspicion that a crime had been committed."' Thus, from a practical standpoint, the court has not ruled that the
police cannot chase suspects. The court simply held that this particular suspect should not have been chased. And it is the facts here that tend to make
the result "absurd."
It is submitted that because of the court's refusal to approve a right to
seize on less than probable cause for investigatory purposes, the court was
constrained to explain away all of the observations of the officers as susceptible of innocent interpretation.ee If such a right were conceded .here, then
the officers would have had a right to pursue the suspect in fulfillment
thereof. In other words, what makes the result here appear to be "absurd" is
the natural reaction that the suspect's behavior was extremely unusual: the
reaction (based upon the facts here) that consists of a strong tendency to
disagree with the court's conclusion on indicia of criminality. If the majority
had conceded that the police observations were sufficient to create a reasonable suspicion of criminal behavior, it would then have had to elect between:
(1) finding that flight here was sufficient to make for probable cause; or (2)
squarely facing the issue of whether the officers had a right to pursue in
order to effect a seizure for an investigative purpose. The majority obviously
did not believe that the totality of the circumstances (including the flight)
was sufficient to establish probable cause, and the majority avoided squarely
facing the issue of seizure on less than probable cause. Hence, the murky,
convoluted opinion and the appearance of absurdity in the result. The dissent, too, avoids the basic question. The dissent simply finds that the flight
of the suspect, when approached, on top of the observations of the officers,
gave probable cause to arrest. ee
It is worth comparing at this point the Supreme Court's handling of the
question of flight in a somewhat analogous situation. In Reid u. Georgia, '00
the latest Supreme Court case on the issue, the suspect also fled and threw
~7 The court opined: "Defendant's flight, had there also been indicia of criminal activity,
would have been an important factor in determining probable cause." Id. at 592.
PS Thus, the court stated:
Presence in an area of "frequent burglaries" was an insufficient basis; in this day of
unisex haircuts and clothing, the carrying of a woman's vanity case was at best equivocal;
and defendant's "furtive" movements (repeated glances, change of direction, quickened
pace) were, the car being unmarked and the officers not in uniform as already noted, at
best ambiguous. The circumstances justified the inquiry made and would have justified
the officers in keeping the defendant under observation but were not a predicate for
anything more.
ld. at 590 (citations omitted).
99 As Judge Jasen wrote, "In my opinion, once defendant ran away, the officers' level of suspicion was elevated to one of probable cause." Id. at 595.
100 100 S. Ct. 2752 (1980).
1980]
Police-Initiated Confrontations
79
away a bag containing the evidence as he ran. In that case an agent had
approached the suspect just outside an airport terminal (based upon a drug
courier profile lOl ), and after some preliminary questioning had asked the
suspect to return to the terminal with him. The suspect agreed, but as they
started to return, he fled. lo, The Supreme Court held that the facts available
to the agent were not sufficient to support a seizure "when he approached
him outside the airline terminal,"lo, but the Court did not rule out a finding on remand that there was a consent stop at this point, and most importantly, the treatment of the case leaves ample room for the conclusion that
if the Georgia courts, on remand, find that there was a consent stop, the
subsequent flight gave justification to chase and to retrieve and search the
bag. Thus, although as previously discussed,1O' the Supreme Court still is
not answering the basic question, it also apparently is holding open the
question of flight.
The manner in which "flight" should be treated is important, but it constitutes a side issue. Not all suspects who fail to yield to the implied (or
apparent) authority of the officer will flee and thus conveniently create an
opportunity to use flight as an additional indication of criminality. Some
may simply ignore the officer or just keep walking. The real question still is
whether the police have the right in general to detain for investigation, or to
otherwise invade privacy, on reasonable suspicion but without probable
cause to arrest. As a matter of form, this may require as pointed out at the
outset of this Article, "pinpoint[ing] the stage of the encounter at which the
seizure occur[s]," but in substance. it requires a decision as to the level of
interference with a person's right to be let alone we are willing to tolerate
before judicial scrutiny is applied to determine the reasonableness of the
basis for the interference. It is submitted that if this can be decided satisfactorily, then the question will be answered in the affirmative, because the
tension between the concept of a seizure and the consent doctrine, caused
by recognition of the need for the police to "stop" people and address questions to them will have been answered in an acceptable manner. 10 •
As previously noted, it is not helpful to continue to repeat the old dictum
from Terry, reiterated by Mr. Justice Stewart in Mendenhall and by a majority of the Supreme Court in its last decision in this area, Reid v. Georgia,
that" [0 ]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen may we conclude
that a 'seizure' has occurred. "106 Nor is it helpful to further refine this test
See note 57 supra.
Reid v. Georgia, 100 S. Ct. 2752, 2753 (1980).
103 Id. at 2754.
10" See text accompanying notes 58-62 supra.
IO~ See generally text accompanying notes 38-55 supra.
106 Terry v. Ohio, 392 U.S.!, 19 n.16 (1968). This definition was utilized in Reid v. Georgia,
100 S. Ct. 2752, 2753 n.2 (1980); United States v. Mendenhall, 100 S. Ct. 1870, 1877 (1980);
Dunaway v. New York, 442 U.S. 200, 207 (1978).
101
102
80
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by equating a show of authority to a show of force, as did Mr. Justice Stewart in the portion of his Mendenhall opinion where he was joined only by
Mr. Justice Rhenquist,'07 i.e., "that a person has been 'seized' within the
meaning of the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he
was not free to leave. "108
This type of test will not permit an officer to hold a person physically by
the arm for even the briefest period to ascertain additional facts, and it is
insufficient to meet the needs of reasonable police investigation. Apart from
this, it irrationally and unrealistically discriminates against those who are
docile enough to submit to police authority. This type of test, based as it is
upon a technical or mechanical tortious restraint or trespass, does not meet
the issue of whether there has been a substantial invasion of the suspect's
right to be free from intrusion upon his personhood. It harkens back to the
technical trespass approach rejected by the Supreme Court in dealing with
fourth amendment problems ever since its landmark decision in Katz v.
United States.'o.
In dealing with the right to effect a brief physical restraint it may well be
both necessary and reasonable to require that a person submit to a brief
detention for investigatory purposes even though there is no reasonable
ground to suspect that an individual commited a crime. For example, suppose the police learn that there has been a shooting in a barroom. Upon
arrival at the scene they find a body on the floor and a still warm revolver
near it. There are five persons present and their identity is not known to the
police. When the officers turn to question them, they start to walk out the
door. Are the police powerless to detain and question these persons because
such action would be a violation of their constitutional rights?'lO
An affirmative answer to this question would indeed lead to an absurd
result. Drawing upon the same hypothetical, should the power of the police
be any the less with respect to a particular' one of the five, if they have
reason to suspect that he killed the deceased? Does this suspicion give the
suspect a greater right to avoid the inconvenience of detention than his fellows, or the police a lesser right to detain the suspect?
See note 42 supra.
100 S. Ct. at 1877,
109 389 U.S. 347 (1967). See also Ybarra v. Illinois, 444 U.S. 648, 652 (1979); Rakas v. Illinois,
439 U.S. 128, 138-43 (1978).
110 In Ybarra v. Illinois, 444 U.S. 648 (1979), the Supreme Court held that "a person's mere
propinquity to others independently suspected of criminal activity does not, without more, give
rise to probable cause to search that person." [d. at 652. In addition, the Court in both Rawlings v. Kentucky, 48 U.S.L.W. 4885 (1980) and Brown v. Texas, 443 U.S. 47 (1979) remarked
upon the need for individualized suspicion. However, a distinction between such cases and the
hypothetical in the text could well be drawn by observing that in the hypothetical there is
individualized suspicion that each of the five persons is in possession of information that could
be of assistance to the police in performing their investigation and the purpose of the detention
would be to secure that information.
107
108
1980]
Police-Initiated Confrontations
81
Of course, in this hypothetical, the police have probable cause to believe
that a crime was committed, and what is lacking is probable cause to single
out any particular person to accuse of having committed the crime. Thus,
the hypothetical takes us only half-way. One could well concede the right of
the police to detain in this situation and still distinguish virtually all of the
cases discussed in this Article by noting the absence of probable cause to
believe that a crime had been committed. But, it is submitted that this
would make for only a difference in degree and not one in form or structure
of the right of the police to detain an individual on less than probable cause.
Sometimes there is an objective basis to suspect that a crime has been committed' without regard to any particular suspect, which gives rise to the
need to investigate and interfere with an individual's complete freedom; at
other times it is the actions of an individual that give rise to both the suspicion that a crime has been committed and the suspicion that he is the perpetrator. In the latter case the ground is not as firm, but any weakness is not
in structure but rather in degree, and strength can be furnished by individual facts and circumstances, such as the presence of a suspect in an area
beset by a high rate of burglaries carrying a bulging pillowcase,111 or (where
the suspect is a male) a woman's vanity case,''' or perhaps even by the furtive behavior of a person who has arrived late at night from a city known to
be a major source for drug suppliers. liS
The irrational and unrealistic discrimination inherent in the physical
force or authoritative command test has already been noted.'" The test is
irrational because it makes the issue of whether the defendant is entitled to
a judicial review of the basis for the officer's conduct, i.e., the reasonableness
of the initial singling out of the suspect, depend upon the question of
whether the suspect submits or challenges the apparently authorized official
inquiry made by an agent of the sovereign. And the test is unrealistic because it assumes that a person who is approached by a police officer would
"feel free to leave" if not specifically menaced by the conduct of the officer.
People simply do not feel "free to leave" when confronted by the police.
They may flee or try to bluff by walking away or ignoring the officer, but
anyone who knows anything of policework from either the perspective of an
officer or that of being on the streets (or anyone who is knowledgeable in the
area and has the willingness to recognize what happens in real life) knows
that people do not feel free to leave. As previously noted,''' the tests postulated by the Supreme Court in this area are tests of docility, and not of
whether the suspect feels free to leave.
The issue of when an interference with protected fourth amendment
III For
N. Y.S.2d
112 For
113 For
114 See
116 See
a similar fact pattern, see People v. Moore, 47 N.Y.2d 911, 393.N.E.2d 489, 419
495 (1979).
a similar fact pattern, see People v. Howard, 50 N.Y.2d 583 (1980).
a similar fact pattern, see United States v. Mendenhall, 100 S. Ct. 1870 (1980).
notes 43~49 and accompanying text supra.
notes 44-49 and accompanying text supra.
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rights has occurred, although not capable of resolution with mathematical
certainty (as few things in law should be), ought to be resolved on the basis
of when, in the course of the encounter, the suspect's legitimate expectation
of privacy has been invaded. A citizen abroad in a public place has to expect
that he may encounter some interference from strangers, including the police, and if some of these encounters cause inconvenience or delay or even
are psychologically unsettling, that is one of the prices of civilization. But a
turning point that could very well be used to distinguish a police encounter
is the request to produce documents for identification or verification of a
story, or a request to return to a terminal, or a request to inspect luggage. At
this juncture it seems reasonable to conclude that privacy is to be invaded
by virtue of governmental authority whether or not we can construct a technica "consent" to the invasion. If this point were used instead of the initial
"stop" at one extreme, and the "consent" do~trine from beginning to end at
the other extreme, there would be a reasonable way of testing whether the
officer was justified in making the request and the police would be free to
use their hunches for the initial approach and questions right up to the
point where the request invaded privacy. The justification for the request to
consent would be gauged on the basis of the objective facts known to the
officer at that time, and the standard would be whether the officer had a
reasonable basis for suspicion of criminal activity.
If we accept the premise that a "stop" is not a "seizure" and that a
"seizure" does not occur until some significant inconvenience or invasion of
privacy has been forced upon or requested from the suspect, we must still
face the question of whether anything could legitimately be gained for the
public advantage from such acceptance. The relevance of this inquiry is, as
pointed out earlier, to attempt to alleviate the tension between the need of
the police to investigate, and the abuses inherent in the use of "instinct" for
selection of suspects, by giving legitimacy to the notion of a seizure on less
than probable cause for investigative purposes and using the point of
"seizure" to serve as the point in the encounter where the objective basis for
the police action would become subject to judicial scrutiny. In order to recognize such a seizure as a valid practice we must determine whether there is
anything constitutionally impermissible about asking a person who has been
detained by the police to furnish information about a crime. In making this
inquiry we must also bear in mind that it begins at the point where the
citizen, who has been stopped, is now a suspect and is being put to a not
insignificant inconvenience. us
Authority to seize and detain on reasonable suspicion is an investigation
necessity. If the police are in possession of objective, articulable facts that
justify a reasonable suspicion of criminal activity, thGY have to be permitted
U6 Concededly, in a situation where a suspect must be pursued for a stop to occur, such as in
Howard, such pursuit would be the equivalent of significant inconvenience, and would require
fourth amendment justification in terms of reasonable grounds to suspect that he had committed a crime.
1980]
Police-Initiated Confrontations
83
to impose a reasonable inconvenience on a suspect. This was clearly recognized in the oftquoted opinion of Mr. Justice White, concurring in Terry u.
Ohio, I n and no doctrine developed since that time has emerged to weaken
any portion of that now famous passage. The only real question has been
whether such a seizure would meet the criterion of furnishing a legitimate
advancement of the public interest. u ,
The primary foundering point as to legitimacy is the notion that the police have no right to seize a suspect for the purpose of questioning him
about his activities. For example, it is clear from the majority opinion in
People u. Howard"· that the New York Court of Appeals has reached this
conclusion. Indeed, the New York Court of Appeals has even held that Miranda warnings are necessary for this type of questioning.''' However, analysis of the portion of the majority opinion in Howard that addresses this
point, which serves as an apt example for analysis of the notion, reveals a
failure to distinguish between detaining a person for the purpose of questioning and compelling the person to answer questions. The court simply
culled a potpourri of quotes from various sources and strung them together
without pausing to recognize the principles to which they apply ....
Most revealingly, however, the court quoted another concurring opinion in
Terry, the opinion of Mr. Justice Harlan, opining that it constitutes supporting .authority for the conclusion that a person cannot be seized and detained for questioning on less than probable cause. It stated that
"[s]upporting authority is to be found in cases defining 'seizure' by whether
the individual interrogated had lost his 'equal right to ignore his interrogator and walk away.' ,,,.. Mr. Justice Harlan mentioned the equal right to
As Mr. Justice White wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may
not be detained or frisked but may refuse to cooperate ,and go on his way. However,
given the proper circumstances, such as those in this case, it seems to me the person may
be briefly detained against his will while pertinent questions are directed to him, Of
course, the person stopped is not obliged to answer, answers may not be compelled, and
refusal to answer furnishes no basis for an arrest, although it may alert the officer to the
need for continued observation. In my view, it is temporary detention, warranted by the
circumstances, which chiefly justifies the protective frisk for weapons. Perhaps the frisk
itself, where proper, will have beneficial results whether questions are asked or not. If
weapons are found, an arrest will follow. If none are found, the frisk may nevertheless
serve preventive ends because of its unmistakable message that suspicion has been
aroused. But if the investigative stop is sustainable at all, constitutional rights are not
necessarily violated if pertinent questions are asked and the person is restrained briefly
in the process.
Terry v. Ohio. 392 U.S. 1. 34·35 (1968).
liB See text accompanying notes 7-8 supra.
liB 50 N.Y.2d 583 (1980). For a discussion of the Howard opinion, see notes 87-94 and accompanying text supra.
no See notes 135-39 and accompanying text infra .
... People v. Howard, 50 N. Y.2d 583, 590·91 (1980).
111
IU
[d.
84
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ignore an interrogator and walk away solely in the context of an interrogation conducted by another citizen and to stress the distinction between the
right of a suspect when confronted by another citizen and the right of a
suspect when confronted by the police.''' The point being made by the Justice, indeed the reason he wrote his concurrence, was that he believed a policeman docs have a right to stop a suspect on reasonable suspicion and to
detain him for questioning. Analyzing the now historic encounter on that
Cleveland street between Officer McFadden and Terry, Justice Harlan
stated:
Officer McFadden had no probable cause to arrest Terry for anything, but he
had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing
questions to him, and Officer McFadden did 80. 124
Justice Harlan would have faced the question, and not reserved it (as did a
majority of his brethren) or obfuscated it (as did the New York Court of
Appeals). Justice Harlan would have made it "perfectly clear" that Officer
McFadden had a right to make "a forcible stop to investigate a suspected
crime. "l2l';
The New York Court of Appeals also cites the aforementioned, oftquoted
opinion of Mr. Justice White, concurring in Terry, but this opinion too contradicts, rather than supports, the conclusion reached by the court of appeals. True it is that this opinion states that a person approached by a police officer may not be detained or frisked, "but may refuse to cooperate and
go on his way."'" However, this language is preceded by the caveat that it
only applies "absent special circumstances."'" "[Gliven the proper circumstsnces, such as those in this case [Terry]," Justice White opined, "the person may be briefly detained against his will while pertinent questions are
directed to him.""" Nor can the court of appeals draw any sustenance from
its citation to the two-Justice opinion in Mendenhall,"" because that portion of the opinion also deals with pre-seizure conduct.
In short, these authorities relied upon by the court of appeals deal with
the liberty of a citizen where the police do not have a justifiable suspicion
that he has committed a crime. Insofar as they address the question of
whether an officer may forcibly detain a suspect for questioning, they support the procedure. The key element here, overlooked by the opinion of the
IZ3 Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring),
WId. (emphasis supplied),
1ZI'> Id.
126 Id. at 34.
127 Id.
128 [d. (emphasis supplied),
m In People v. Howard, the court of appeals cites to Part II-A of the Mendenhall opinion, in
which only Justices Stewart and Rehnquist join. 50 N.Y.2d at 591.
1980]
Police-Initiated Confrontations
85
court of appeals, can be revealed by tbe language in Mr. Justice White's
Terry concurrence following immediately after the above-mentioned observation that "the person may be briefly detained against his will while pertinent questions are directed to him.""· This is as follows: "Of course, the
person stopped is not obliged to answer, answers may not be compelled, and
refusal to answer furnishes no basis for an arrest, although it may alert the
officer to the need for continued observation.'''''
There is, of course, a difference between questioning in detention and
compulsion to answer. This has always been recognized. The United States
Supreme Court has never condemned the ancient police practice of questioning detained suspects. Indeed the New York Court of Appeals has not
done so either. Thus, when the court of appeals stated, as it did in Howard, m quoting with approval from a lower-court opinion in another case,
"What sets this Nation apart from others is that its system of criminal prosecution is accusatorial, not inquisitorial. A citizen may, if he so chooses, exercise the right to demand that the police secure evidence of his guilt from
other sources than from out of his own mouth,"'" it no doubt was articulating with accuracy an unimpeachable generality, but it failed to notice that
seizure by the police and a brief period of interrogation would not have deprived the citizen of his right to demand that the police secure evidence of
his guilt from other sources rather than from his own mouth. The seizure
would have given the police a fair opportunity to question the suspect.
Even in a case where the police have arrested a person on probable cause
and taken him into full custody in a police station, where it cannot be
doubted that he is being held against his will, the police may question the
suspect and validly secure the final link in the evidence needed for conviction from his own mouth. The prohibition against inquisitorial tactics,
against securing evidence from a suspect, is a prohibition against overcoming the will of the suspect, against forcing a confession, and the quotation
from the lower state court opinion adopted by the court of appeals is simply
a paraphrasing of Mr. Justice Frankfurter's opinion in Rogers v. Richmond, ... where the Supreme Court held for the first time that the fourteenth amendment prohibits the use of coerced confessions, irrespective of
whether a confession was likely to be truthful.
Further, although the New York Court of Appeals may be satisfied that
Miranda warnings are necessary for a person briefly detained for interrogation,''' if that conclusion is based upon its reading of the United States
130
392 U.S. at 34.
131
[d.
'" People v. Howard, 50 N.Y.2d 583, 590 (1980).
133 [d. at 591 (quoting People v. Burns, 91 Misc. 2d 1080, 1086 (Sup. Ct. 1976).
134 365 U.S. 534 (1961). Mr. Justice Frankfurter stated: "ours is an accusatorial and not an
inquisitorial system-a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of
his own mouth." [d. at 541 ~emphasis supplied).
m See People v. Harris, 48 N.Y.2d 208, 397 N.E.2d 733, 422 N.Y.S.2d 42 (1979).
86
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Constitution, it may well be without foundation. Thus far no decision of the
United States Supreme Court has held that brief detention of a suspect
while pertinent questions are put to him constitutes "custodial" interrogation. The concept of custody requires deprivation of freedom of action in a
"significant way. "m The nub of the Miranda holding was the coercion inherent in "incommunicado interrogation of individuals in a police-dominated atmosphere."'" While the Miranda case did not directly discuss a
seizure and brief detention (Miranda was decided two years before Terry),
and while none of the opinions in Terry mentions the question of Miranda
warnings, it is significant that the Miranda opinion contains the following
limitation:
General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by OUf
holding. It is an act of responsible citizenship for individuals to give whatever
information they may have to aid in law enforcement. In such situations the
compelling atmosphere inherent in the process of in-custody interrogation is
not necessarily present. 138
It is not the purpose of this Article to hold a brief either for or against the
use of some device to advise a person who has been seized that he is not
under arrest and will not be detained long or that he cannot be compelled to
answer the questions that are about to be asked. The relevance of that issue
to the discussion herein bears solely upon the question of whether or not
one believes that a person so instructed is likely to refuse to answer. A requirement that the instruction be given, coupled with a belief that most
people who have been so instructed would not answer (a belief not shared
by this writer), could well lead to the conclusion that authorizing the stop or
seizure for the purpose of questioning (as in Howard) would not advance
any legitimate public interest. This, of course, should be distinguished from
the question of whether the seizure on less than probable cause would be
useful where the object was not questioning, but rather a request for consent
to search. 139
The Howard case poses the hardest problem, because there the court presumed a seizure for the purpose of conversation. The problem is not quite so
difficult if we view it in terms of a seizure for the purpose of requesting
permission to inspect the contents of a suitcase. "0 Here we need not confront the spectre of inquisitorial tactics. Indeed, the same bench that decided Howard found, only two months prior to its Howard decision, that
m Miranda v. Arizona, 384 U.S. 436, 477 (1966).
Id. at 445. See also Oregon v. Mathiason, 429 U.S. 492 (1977); Beckwith v. United States,
425 U.S. 341, 345-48 (1976); United States v. Mandujano, 425 U.S. 564 (1971).
lJ8 Miranda v. Arizona, 384 U.S. 436, 477·78 (1965).
1311 See, e.g., United States v. Mendenhall, 100 S. Ct. 1870 (1980); People v. Moore, 47 N.Y.2d
911, 393 N.E.2d 489. 419 N.Y.S.2d 495 (1979); People v. DeBouc. 40 N.Y.2d 210, 352 N.E.2d
562.386 N.Y.S.2d 375 (1976).
See Schneckloth v. Bustamante, 412 U.S. 218 (1972).
lJ7
W}
1980]
Police-Initiated Confrontations
87
there is nothing inquisitorial about two police officers who suspect that a
person is trafficking in narcotics following him into the public restroom of a
bus station, and after receiving a negative response to their inquiry as to
whether he had brought back any drugs which was followed by an invitation
to "check if you want," and a fruitless search of his clothing, asking him to
undo his belt and trousers and forcefully pressing the search when the suspect became evasive!" In any event it should be noted that the New York
Court of Appeals has not competely ruled out, as inquisitorial, all police
demand for orally conveyed information made to suspects seized on less
than probable cause. In two cases, one decided after Howard, the court has
permitted a "single question" to clarify the situation!" Moreover, in these
cases the court also held that Miranda warnings were not required. Someday the court may find it necessary to approve more than a "single question" in order for the officers to clarify the situation. It is submitted that the
question of whether warnings are required in the temporary seizure situation should not depend upon the number of question asked, but rather upon
whether there is coercion inherent in the situation, and in cases where there
is (e.g., officer draws a gun), upon a balancing with the need for safety.
Assuming then that brief detention for questioning is not in derogation of
our accusatorial form of justice (and putting aside the Miranda warnings
issue), there is a ve~y strong reason in public policy to support the authority
of the police to seize and detain, apart from the urgent public need to stem
the rising and choking tide of crime. Every citizen has a personal responsibility to cooperate with the agents of law enforcement. This was clearly recognized by the Miranda Court, as shown in the above quoted excerpt from
its opinion, and, as stated recently by the Supreme Court, "[t]his deeply
rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself."I<' There are, of course, several deep and
troublesome issues inherent in the tension between this notion and both our
accusatorial form of justice and the privilege against self-incrimination for
which the Miranda warnings serve as a prophylaxis, '" but those protections
do not eradicate the responsibility of the citizen. Those protections (when
placed in the context of pre-accusatory investigation) prohibit compelled answers. The obligation of the citizen to cooperate should at least give rise to a
reciprocal right by the police to detain him, to briefly interfere with his freedom of movement, for the purpose of getting information to aid in the investigation of a crime. The fact that a citizen, given an absolutely free
See People v. Meredith, 49 N.Y.2d 1038 (1980).
See People v. Chestnut, No. 369, slip op. (N.Y. Ct. of Appeals July 8, 1980) (the court of
appeals stated that the officer's question, "where's the gun?" did not turn the situation into an
unconstitutional custodial interrogation); People v. Huffman, 41 N.Y.2d 29, 359 N.E.2d 353,
390 N.Y.S.2d 843 (1976) (the officer's single question, "What are you doing back here?" did not
constitute a process of interrogation to which Miranda applied).
143 See Roberts v. United States, 100 S. Ct. 1358, 1363 (1980).
144 See, e.g., Jenkins v. AnJerson, 100 S. Ct. 2124 (1980) (prearrest silence used to impeach a
criminal defendant).
Hl
142
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choice, might choose to ignore the police request for information does not
mean that an enforced brief detention will render the subsequent disclosure
"involuntary" or "compelled."
The Supreme Court has taught us that the concept of "voluntariness" is
not one that is understood through our everyday interpretation of the term
"volunteer." The concept of voluntariness does not preclude the right of the
police to enforce a confrontation, but rather it reflects "an accommodation
of the complex of values implicated in police questioning of a suspect."'" A
suspect may be detained against his will, but this does not mean that the
information he furnishes is given involuntarily. A suspect's furnishing of information is only involuntary when as a matter of fact his will to resist the
request for information has been overcome.'"
In conclusion, it is suggested that police stopping of a person for a brief
period to ask a question or two should not be deemed to intrude upon any
constitutionally protected right to be let alone and should not require justification based upon objective criteria unless performed in a manner that
would alarm or frighten a reasonable person who has nothing to conceal at
the time. In this connection· no distinction should be made between a "request" to stop and an authoritative command or a mildly physical, enforced
stop (i.e., reaching out and holding the individual). Scrutiny for justification
should be required only where the manner of the stop constitutes a severe
intrusion on the security of the individual. Where a suspect will not stop, or
where further questioning is needed, the courts should specifically recognize
a right of the police to use force to detain on reasonable suspicion. Such
detention would occur when the stop is prolonged for more than the brief
period described above.
If the police request "consent" to an invasion of privacy that would not be
permitted without probable cause (e.g., a search of person or of luggage),
there should be no exemption from a requirement that justification for the
request be submitted to judicial scrutiny. Specifically, there should be no
distinction made that would exempt such a request because the stopping did
not amount to a detention or because the person stopped and remained
without an authoritative command or the use of physical force. This will
facilitate police investigation and also provide a basis for reviewing the justification for selecting a person to "consent" to an otherwise prohibited imposition on privacy. Thus, the test of whether evidence obtained from a person
through "consent" was obtained by arbitrary selection of the person will be
the same, irrespective of the manner in which the person was stopped. That
test should be whether at the time of the government's request to consent to
an imposition upon privacy (e.g., submit to search), the police were in possession of facts and circumstances which, when viewed objectively, would
support: (1) reasonable suspicion that a crime had been committed; and (2)
146
U6
Schneckloth v. Bustamante, 412 U.S. 218, 224-25 (1973).
See notes 47-49 and accompanying text supra.
1980]
Police-Initiated Confrontations
89
reasonable suspicion that the person imposed upon can provide information
to assist in the investigation of the crime.
In considering selection of persons to be imposed upon and in generally
dealing with the rights of persons who are imposed upon, a person who is in
fact a "suspect" should have no greater (or lesser) exemption from imposition upon his freedom from governmental interference and no greater (or
lesser) rights than any other person who may be able to assist in the investigation (e.g., a witness to the crime). All such persons should be deemed to
have a duty to cooperate with the polke, and the police should have a reasonable opportunity to attempt to secure that cooperation. The police
should not, of course, be permitted to coerce involuntary cooperation, and
the extent of the detention allowed should be limited to a brief period at the
scene of the stop. The right to detain should not be deemed to include the
right to remove to a police station or other place for questioning without
consent. Consideration, however,' might be given to including a right to require a brief removal for the purpose of being viewed by a victim or for
some similar purpose. In a case where a person refuses to identify himself,
or where there is reason to believe that he will not be available for future
questioning, there should be a procedure that permits the police to bring the
person before a magistrate for the purpose of requiring identification or the
posting of security for future appearance when required in aid of
investigation.
Additional matters could well be spelled out here, but this concluding section already is starting to read more like the beginning of an outline for a
code of procedure than the conclusion of an Article.