case 1:08-cv-01034-at-hbp document 505-2 filed 04/20/15 page 1 of 33case 1:08-cv … · 2015. 5....

Case 1:08-cv-01034-AT-HBP Document 505-2 Filed 04/20/15 of 33Case 1:08-cv-01034-AT-HBP Document 507-2 Filed 04/24/15 Page 1 of 33

INVESTIGATIVEINVESTIGATIVEENCOUNTERSENCOUNTERS

POLICING LEGALLYPOLICING LEGALLYPOLICING LEGALLYPOLICING LEGALLY


LEARNING OUTCOMESLEARNING OUTCOMES1. Explain the 4th Amendment prohibition against

unreasonable search and seizure.

2. Explain the Exclusionary Rule.

3. Describe the legal standards set forth in Terry v. Ohio.

4. Describe the legal standards set forth in

People v. DeBour as they relate to levels of encounters.People v. DeBour as they relate to levels of encounters.

5. Identify the four levels of encounters and demonstratethe limits and appropriate use of each based ondifferent sets of facts presented in the classroomsetting.

6. Demonstrate the proper preparation of a Stop Reportand required Activity Log entries that must be made.


CONSTITUTIONALCONSTITUTIONALCONSIDERATIONSCONSIDERATIONS

4TH AMENDMENT:

PROTECTS CITIZENS AGAINSTUNREASONABLE GOVERNMENTALSEARCHES AND SEIZURESSEARCHES AND SEIZURES


CONSTITUTIONALCONSTITUTIONALCONSIDERATIONSCONSIDERATIONS

EXCLUSIONARY RULE:

UNLAWFULLY OBTAINEDEVIDENCE WILL BE SUPPRESSEDIN COURTIN COURT

“FRUITS OF THE POISONOUS TREE”


TERRY v. OHIOTERRY v. OHIO

A TERRY STOP IS AN ENCOUNTER WITH AN OFFICERWHERE A REASONABLE PERSON WOULD NOT FEELFREE TO WALK AWAY.

IT IS A SEIZURE UNDER THE FOURTH AMENDMENT

REQUIRES REASONABLE SUSPICIONREQUIRES REASONABLE SUSPICION

REASONABLE SUSPICION IS LESS THAN PROBABLECAUSE, BUT MUST BE INDIVIDUALIZED SUSPICIONBASED ON SPECIFIC FACTS

MAY FRISK FOR WEAPONS ONLY IF OFFICERREASONABLY SUSPECTS THAT THE PERSONSTOPPED IS ARMED AND DANGEROUS


PEOPLE v.PEOPLE v. DeBOURDeBOUR

NYS COURT OF APPEALS CREATED AFOUR TIER ANALYSIS THAT DICTATESLIMITS ON THE LEVELS OFPERMISSIBLE POLICE INTRUSION…

LEVEL 1: REQUEST FOR INFORMATION

LEVEL 2: COMMON LAW RIGHT OFINQUIRY

LEVEL 3: TERRY STOP

LEVEL 4: ARREST


LEVEL 1:LEVEL 1:REQUEST FOR INFORMATIONREQUEST FOR INFORMATION

MAY A POLICE OFFICER APPROACH ACITIZEN TO REQUEST INFORMATIONWITHOUT HAVING ANY INDICATIONOF CRIMINAL ACTIVITY?OF CRIMINAL ACTIVITY?


LEVEL 1:LEVEL 1:REQUEST FOR INFORMATIONREQUEST FOR INFORMATION

YES, PROVIDED THE APPROACH IS…

• BASED ON AN OBJECTIVE CREDIBLE REASON

• AND NOT BASED ON CURIOSITY, BIAS, ORINTENDED TO HARASSINTENDED TO HARASS

• MAY ONLY ASK NON-ACCUSATORY QUESTIONS

• Public service or law enforcement function

• PERSON MUST FEEL FREE TO LEAVE

• MAY NOT ASK TO SEARCH


LEVEL 2:LEVEL 2:COMMON LAW RIGHT OF INQUIRYCOMMON LAW RIGHT OF INQUIRY

• FOUNDED SUSPICION THAT CRIMINALACTIVITY IS AFOOT

• BASED ON OBSERVABLE CONDUCT OR• BASED ON OBSERVABLE CONDUCT ORRELIABLE HEARSAY INFORMATION

• MORE THAN A HUNCH


LEVEL 2:LEVEL 2:COMMON LAW RIGHT OF INQUIRYCOMMON LAW RIGHT OF INQUIRY

• CANNOT BE A STOP: SUBJECT MUST FEELFREE TO WALK AWAY

• MAY ASK POINTED, ACCUSATORYQUESTIONSQUESTIONS

• MAY CONTINUE TO OBSERVE THE SUBJECTWITHOUT APPROACHING

• MAY REQUEST CONSENT TO SEARCH, BUTCONSENT MUST BE VOLUNTARY


LEVEL 1 vs. LEVEL 2LEVEL 1 vs. LEVEL 2

• LEVEL 1

You have an objective reason toask for information

• LEVEL 2

You have information that indicatespossible criminal activity


LEVEL 1LEVEL 1 and LEVELand LEVEL 22•• CANNOT useCANNOT use oror threatenthreaten to use any level ofto use any level of

forceforce

•• Individuals may refuse to answer, mayIndividuals may refuse to answer, maychoose to answer only some questions,choose to answer only some questions,and/or may freely walk awayand/or may freely walk away

Individuals MUST feel free to leaveIndividuals MUST feel free to leave•• Individuals MUST feel free to leaveIndividuals MUST feel free to leave

•• Refusal to answer questions or walking awayRefusal to answer questions or walking awaydoes not raise level of suspiciondoes not raise level of suspicion

• Events and observations at Level 1 or Level 2can elevate the encounter to Level 3


LEVEL 3:LEVEL 3:Also Known asAlso Known as TERRYTERRY STOPSTOP

WHENEVER A REASONABLE PERSONWOULD NOT FEEL FREE TO DISREGARD

THE OFFICER AND WALK AWAY…THAT IS A STOP

•• Physical force or threat of force is notPhysical force or threat of force is not•• Physical force or threat of force is notPhysical force or threat of force is notnecessary to constitute a stopnecessary to constitute a stop

•• IfIf commands or questions would lead acommands or questions would lead areasonable person to conclude she/he isreasonable person to conclude she/he isNOT free to leave, it is aNOT free to leave, it is a stopstop

Where can you stop the person?Where can you stop the person?

•• WWithin Geographic Area Of Employmentithin Geographic Area Of Employment(Five Boroughs) on or off duty(Five Boroughs) on or off duty


LEVELLEVEL 3 STOP3 STOP

USE OF FORCE:

• Reasonable force may be used to stop ordetain

• The type and amount of force used mustbe objectively reasonablebe objectively reasonable

• Do not handcuff unless:

• Reasonably suspect the person stopped isarmed and dangerous AND

• There is an extraordinary condition adding anelement of danger (dark alley, officer alonewith multiple suspects)



A stop is permissible only whenindividualized reasonablesuspicion exists that the personstopped has committed, iscommitting or is about to commit:committing or is about to commit:

• A felony or• A Penal Law misdemeanor

Officer must be able toarticulate specific factsjustifying stop



WHAT IS REASONABLE SUSPICION?

• When the information you have is of suchweight and persuasiveness that, based onyour judgment and experience, it isreasonable to suspect criminal activity isreasonable to suspect criminal activity isafoot

• Must be individualized, particularized,objective, and supported by specific facts

• Hunches or gut feelings are not sufficient



SOME FACTORS THAT MAY BE RELEVANTTO REASONABLE SUSPICION:

• Information from an identified informant

• Matching a specific description (not justrace, age, gender) of a suspect wanted inrace, age, gender) of a suspect wanted ina reported crime

• Carrying objects in plain view used incommission of crime (e.g., slim jim, prybar)

• Actions indicative of “casing” victim orlocation



SOME ADDITIONAL FACTORS THAT MAY BERELEVANT TO REASONABLE SUSPICION:

• Actions indicative of acting as alookout

• Actions indicative of engaging in drugtransaction

• Actions indicative of engaging in drugtransaction

• Actions indicative of concealing orpossessing a weapon

• Proximity to recent known crimescene location


LEVELLEVEL 33 STOPSTOP

THESE ARE ONLY FACTORS THAT MAY BERELEVANT IN DETERMININGREASONABLE SUSPICION

ANY ONE FACTOR IN ISOLATION MAY NOTANY ONE FACTOR IN ISOLATION MAY NOTLEAD TO REASONABLE SUSPICION

A GENERIC CRIME SUSPECTDESCRIPTION, BY ITSELF, LIKE “YOUNGBLACK MALE” DOES NOT SUPPORTREASONABLE SUSPICION



INFORMATION FROM AN ANONYMOUSSOURCE:• REASONABLE SUSPICION CANNOT BE

BASED SOLELY ON ANONYMOUSINFORMATIONINFORMATION

• Except exigent circumstances, for example, bombthreats or DWI

• INFORMATION FROM ANONYMOUSSOURCE MUST BE CORROBORATED TOSUPPORT REASONABLE SUSPICION

• ANONYMOUS CALLER MAY SUPPORTLEVEL 2 “FOUNDED SUSPICION”



INTRUSION

• MAY DETAIN SUSPECT FOR AREASONABLE AMOUNT OF TIME

• MAY ASK FOR NAME/ADDRESS &• MAY ASK FOR NAME/ADDRESS &EXPLANATION OF CONDUCT, BUT…

• SUSPECT IS NOT REQUIRED TO ANSWERAND REFUSAL DOES NOT GIVE REASONTO ARREST



QUESTIONING

• MAY ASK POINTED, ACCUSATORYQUESTIONS RELATED TO REASON FORTHE STOP AND PEDIGREE INFO

• MIRANDA WARNINGS NOT REQUIRED

• PERSON MAY REFUSE TO ANSWER

• REFUSAL TO ANSWER IS NOT AREASON FOR ARREST



FRISK

“STOP” AND “FRISK” ARE TWODIFFERENT THINGS

CANNOT AUTOMATICALLY FRISKEVERYONE WHO IS LAWFULLY“STOPPED”



A FRISK

FRISK IS ONLY PERMITTED WHEN:

• There is independent reasonablesuspicion that the person is armed anddangerousdangerous

• Limited pat down of the outside ofsuspect to check for dangerous weapons

• Cannot be used to search for evidence ofa crime, such as drugs

• Cannot go inside of pockets or clothingduring frisk



ARMED AND DANGEROUS

• Officer observes a weapon

• Knowledge that suspect may have aweapon

• Knowledge that suspect may have aweapon

• Suspect states he/she has a weapon

• Witness or victim states suspect hasa weapon

• Reasonable suspicion of a violentcrime



FRISK OF A PORTABLE CONTAINER

• MAY ONLY FRISK PORTABLECONTAINER THAT IS (A) WITHIN GRASPOF SUSPECT, (B) COULD CONTAIN AWEAPON, AND (C) UNLOCKEDWEAPON, AND (C) UNLOCKED

• FRISK BY SQUEEZING THE CONTAINER

OPEN ONLY IF YOU FEEL WEAPON

• IF CONTAINER IS SOLID, MAY OPEN TODETERMINE WHETHER WEAPON ISPRESENT



SEARCH

A SEARCH IS THE PLACING OF HANDS INSIDEA POCKET OR OTHER INTERIOR PART OFCLOTHING OR POSSESSIONS

IT IS ONLY PERMITTED TO REMOVE OBJECTFELT DURING FRISK THAT YOU REASONABLYSUSPECT TO BE A WEAPON

PURPOSE IS FOR OFFICER SAFETY NOT TODISCOVERY OTHER EVIDENCE OF CRIME


LEVEL 4:LEVEL 4:ARRESTARREST

ARREST REQUIRES PROBABLE CAUSE

PROBABLE CAUSE EXISTS WHEN FACTSAND CIRCUMSTANCES WOULD LEAD AREASONABLE PERSON TO BELIEVE:AND CIRCUMSTANCES WOULD LEAD AREASONABLE PERSON TO BELIEVE:

• AN OFFENSE HAS BEEN COMMITTED

AND

• THE PERSON TO BE ARRESTEDCOMMITTED IT


STOP REPORTSTOP REPORT

• PREPARE ONE STOP REPORT FOREACH PERSON STOPPED

• A Stop Report IS NOT REQUIRED FORLEVEL 1 OR LEVEL 2 ENCOUNTERS

• IF PERSON STOPPED REFUSES TO IDHIM/HERSELF, REQUEST PATROLSUPERVISOR TO VERIFY

• Person is not to be detained whilewaiting for patrol supervisor


REQUIRED ACTIVITY LOGREQUIRED ACTIVITY LOGENTRIESENTRIES

DETAILED ACTIVITY LOG ENTRY MUSTBE MADE FOR EACH PERSON STOPPED

MUST INCLUDE:

• Pedigree• Pedigree

• Time, date, and location

• Suspected felony/penal lawmisdemeanor

• ICAD event number

• Detailed description of reasons for thestop/frisk/search


REQUIRED ACTIVITY LOGREQUIRED ACTIVITY LOGENTRIESENTRIES

• Describe all facts and information relied uponto determine that there was reasonablesuspicion AND

• In case of frisk, describe the facts and• In case of frisk, describe the facts andinformation relied upon to determine thatthere was reasonable suspicion that theperson stopped was armed and dangerous

• In case of search, describe area searched andbasis for suspecting that object felt duringfrisk resembled a weapon


SUMMARYSUMMARY1. Explain the 4th Amendment prohibition against

unreasonable search and seizure.

2. Explain the Exclusionary Rule.

3. Describe the legal standards set forth in Terry v. Ohio.

4. Describe the legal standards set forth in

People v. DeBour as they relate to levels of encounters.

5. Identify the four levels of encounters and demonstratethe appropriate use of each based on different sets offacts presented in the classroom setting.

6. Demonstrate the proper preparation of a Stop ReportWorksheet and required detailed Activity Log entriesthat must be made.


case 1:08-cv-01034-at-hbp document 505-2 filed 04/20/15 page 1 of 33case 1:08-cv … · 2015. 5....

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