common-law right inquiry in New York

2026"The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him [or her]" (<i>People v Knight</i>, 205 AD3d 928, 929 [internal quotation marks omitted]; <i>see</i> <i>People v Berrios</i>, 28 NY2d 361, 367 ).</p> <p>In <i>People v De Bour</i> ( 40 NY2d 210 ), the Court of Appeals established a graduated four-level test for evaluating street encounters initiated by the police (<i>see</i> <i>People v Moore</i>, 6 NY3d 496, 498 ). "[L]evel one permits a police officer to request information from an indivi

2026"The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him [or her]" (<i>People v Knight</i>, 205 AD3d 928, 929 [internal quotation marks omitted]; <i>see</i> <i>People v Berrios</i>, 28 NY2d 361, 367 ).</p> <p>In <i>People v De Bour</i> ( 40 NY2d 210 ), the Court of Appeals established a graduated four-level test for evaluating street encounters initiated by the police (<i>see</i> <i>People v Moore</i>, 6 NY3d 496, 498 ). "[L]evel one permits a police officer to request information from an indivi

2026"The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him [or her]" (<i>People v Knight</i>, 205 AD3d 928, 929 [internal quotation marks omitted]; <i>see</i> <i>People v Berrios</i>, 28 NY2d 361, 367 ).</p> <p>In <i>People v De Bour</i> ( 40 NY2d 210 ), the Court of Appeals established a graduated four-level test for evaluating street encounters initiated by the police (<i>see</i> <i>People v Moore</i>, 6 NY3d 496, 498 ). "[L]evel one permits a police officer to request information from an indivi

2026In <i>De Bour</i>, the Court of Appeals "set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; <span>[*3]</span>level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a rea

2025People v. Hollman , 79 NY2d 181, 190 (1992). -Level II, known as the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot.

2025Level two, a common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot ( DeBour , 40 NY2d at 223 ; Hollman , 79 NY2d at 184 ).

2024The initial approach by the officers — at a "normal pace," without guns drawn, and without the utterance of any commands or questions — did not amount to a level three stop, but, at most, an exercise of the common-law right of inquiry ( see People v Bora, 83 NY2d 531, 535-536 [1994]; People v DeBour, 40 NY2d 210, 223 [1976]).

2024The initial approach by the officers — at a "normal pace," without guns drawn, and without the utterance of any commands or questions — did not amount to a level three stop, but, at most, an exercise of the common-law right of inquiry ( see People v Bora, 83 NY2d 531, 535-536 [1994]; People v DeBour, 40 NY2d 210, 223 [1976]).

2006If merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion—and a suspect who attempted to move could be required to remain in place at the risk of forcible detention— the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified (see People v Holmes, 81 NY2d 1056, 1058 [1993] [“If these circumstances (observing defendant standing in an area known for drug trafficking with an unidentified bulge in his jacket pocke

2006If merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion — and a suspect who attempted to move could be required to remain in place at the risk of forcible detention — the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified ( see People v Holmes, 81 NY2d 1056, 1058 [1993] ["If these circumstances (observing defendant standing in an area known for drug trafficking with an unidentified bulge in his jacket p

2017The common-law right of inquiry by a police officer—a greater level of intrusion than the request for basic information—is permitted when there is a founded suspicion that criminality is afoot (see People v Garcia, 20 NY3d 317, 322 [2012]; People v Hollman, 79 NY2d at 184-185 ; People v Savage, 59 AD3d 817, 820 [2009], lv denied 12 NY3d 920 [2009]). “[W]e accord great weight to the suppression court’s factual findings that are supported by the record” (People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]).

2013Under this test, “level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to

2014The hearing court properly determined that the police officer’s testimony at the hearing established that he had a founded suspicion that the defendant was engaged in criminal activity, triggering the common-law right of inquiry, which, by virtue of the defendant’s flight, ripened into reasonable suspicion to pursue him (see People v Sierra, 83 NY2d 928 [1994]; People v Barrow, 103 AD3d 745 [2013]; People v Soscia, 96 AD3d 1081 [2012]).

2014The hearing court properly determined that the police officer’s testimony at the hearing established that he had a founded suspicion that the defendant was engaged in criminal activity, triggering the common-law right of inquiry, which, by virtue of the defendant’s flight, ripened into reasonable suspicion to pursue him (see People v Sierra, 83 NY2d 928 [1994]; People v Barrow, 103 AD3d 745 [2013]; People v Soscia, 96 AD3d 1081 [2012]).

2006Under the second tier of DeBour , the common-law right of inquiry, police officers may stop an individual without the use of force, for the purpose of questioning that person where there is a founded suspicion of criminal activity ( People v. DeBour , at 215 ; People v. Hollman , at 191; People v. Spencer , 84 NY2d 749, 753 , cert. denied 516 US 905 ; People v. Battaglia , 86 NY2d 755, 758 ; People v. Giles , 223 AD2d 39, 40-41 , lv. denied 89 NY2d 864 ; People v. Sanchez , 8 AD3d 504, 505 , lv. denied 3 NY3d 711 ).

2005Under the second tier of De Bour , the common-law right of inquiry, the police may stop an individual without the use of force for the purpose of questioning that person where there is a founded suspicion of criminal activity (People v De Bour at 215 ; People v Hollman at 191 ; People v Spencer, 84 NY2d 749, 753 [1995], cert denied 516 US 905 [1995]; People v Battaglia, 86 NY2d 755, 758 [1995]; People v Giles, 223 AD2d 39, 40-41 [1996]; People v Sanchez, 8 AD3d 504, 505 [2004], lv denied 3 NY3d 711 [2004]).

2025"Where police acting in their law enforcement capacity initiate an encounter with private citizens, the propriety of the encounter must be assessed under the four-tiered analytical framework articulated in People v De Bour ( 40 NY2d 210 )" ( id. ; see People v McIntosh , 96 NY2d 521, 525 ). "[L]evel one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a found

2023"Where police acting in their law enforcement capacity initiate an encounter with private citizens, the propriety of the encounter must be assessed under the four-tiered analytical framework articulated in People v De Bour ( 40 NY2d 210 )" ( People v Brown , 198 AD3d at 805 ; see People v McIntosh , 96 NY2d 521, 525 ). "[L]evel one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater i

2025"Based upon a founded suspicion that criminal [*2]activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets" ( Matter of Shakir J. , 119 AD3d 792, 794-795 [citation omitted]; see People v Muhammed , 196 AD3d 1151, 1152-1153 ).

2025"Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets" ( Matter of Shakir J. , 119 AD3d 792, 794-795 [citation omitted]; see People v Muhammed , 196 AD3d 1151, 1152-1153).

2017In determining whether the officer had the requisite “founded suspicion” for a level two encounter, the suppression court must consider the totality of circumstances (see People v Mercado, 120 AD3d 441, 442 [2014], affd 25 NY3d 936 [2015]), and “must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (People v William II, 98 NY2d 93, 98 [2002]).

2017In determining whether the officer had the requisite “founded suspicion” for a level two encounter, the suppression court must consider the totality of circumstances (see People v Mercado, 120 AD3d 441, 442 [2014], affd 25 NY3d 936 [2015]), and “must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (People v William II, 98 NY2d 93, 98 [2002]).

2015The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant’s hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” (People v Benjamin, 51 NY2d 267, 270 [1980]). “ ‘[W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that t

2015The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant’s hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” (People v Benjamin, 51 NY2d 267, 270 [1980]). “ ‘[W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that t

2019Although "[f]light alone is insufficient to justify pursuit' " ( People v Riddick , 70 AD3d 1421, 1422 [4th Dept 2010], lv denied 14 NY3d 844 [2010], quoting People v Holmes , 81 NY2d 1056, 1058 [1993]), "a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion" ( People v Sierra , 83 NY2d 928, 929 [1994]; see People v [*2]Martinez , 59 AD3d 1071, 1072 [4th Dept 2009], lv denied 12 NY3d 856 [2009]).

2013The court properly determined that the police thereafter had the requisite reasonable suspicion that defendant “may be engaged in criminal activity” based upon those factors, together with defendant’s flight from police (People v Sierra, 83 NY2d 928, 929 [1994]; cf. People v Cady, 103 AD3d 1155, 1156 [2013]; People v Riddick, 70 AD3d 1421, 1422-1423 [2010], lv denied 14 NY3d 844 [2010]).

2025"Based upon a founded suspicion that criminal [*2]activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets" ( Matter of Shakir J. , 119 AD3d 792, 794-795 [citation omitted]; see People v Muhammed , 196 AD3d 1151, 1152-1153 ).

2025"Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets" ( Matter of Shakir J. , 119 AD3d 792, 794-795 [citation omitted]; see People v Muhammed , 196 AD3d 1151, 1152-1153).

2017In determining whether the officer had the requisite “founded suspicion” for a level two encounter, the suppression court must consider the totality of circumstances (see People v Mercado, 120 AD3d 441, 442 [2014], affd 25 NY3d 936 [2015]), and “must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (People v William II, 98 NY2d 93, 98 [2002]).

2017In determining whether the officer had the requisite “founded suspicion” for a level two encounter, the suppression court must consider the totality of circumstances (see People v Mercado, 120 AD3d 441, 442 [2014], affd 25 NY3d 936 [2015]), and “must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (People v William II, 98 NY2d 93, 98 [2002]).

2007The police officer who approached the defendant in an unmarked patrol car as the defendant was walking on a public street/ sidewalk had a common-law right of inquiry to question the defendant, as he observed the defendant placing a leafy, green substance into a paper wrapper, which substance, based upon his training and experience, the officer concluded was marihuana (see People v De Bour, 40 NY2d 210 [1976]; People v Febus, 11 AD3d 554, 555-556 [2004]; People v Sanchez, 8 AD3d 504, 505 [2004]).

2007The common-law right of inquiry escalated to probable cause to arrest for criminal possession of marihuana in the fifth degree when the officer observed the defendant with the substance and wrapper in hand from a distance of approximately three feet (see People v Sanchez, supra).

2001Contrary to the finding of the hearing court, the observations made by the police officer before he approached the defendant gave rise only to the right to request information, and failed to provide any basis for exercising the common-law right of inquiry (see, People v De Bour, 40 NY2d 210, 223 ; see also, People v Carrasquillo, 54 NY2d 248 ; People v Sobotker, 43 NY2d 559, 564 ; People v Howard, 147 AD2d 177, 179-180 ).

1993(See, e.g., People v Hollman, 79 NY2d 181 [1992], supra; People v Howard, 50 NY2d 583 [1980]; People v Carrasquillo, 54 NY2d 248 [1981].) By ordering Albert King to open his hand, without any initial request or inquiry, Officer DeFelice exceeded the bounds of a common-law right of inquiry under De Bour’s level II.

1998(See, People v Cantor, 36 NY2d 106, 112-113 [1975].) At best, the information possessed by the officer would have accorded him a common-law right of inquiry, which permits neither a seizure nor the intense, accusatory interrogation that occurred in this case.

1985Such a common-law right of inquiry, however, does not permit an officer to detain an individual against his will and forcible detention is justified only if there exists a reasonable suspicion that a crime has or is about to be committed (Terry v Ohio, 392 US 1 ; People v Cantor, 36 NY2d 106 ).

2019Based on the 911 call regarding two black men passing a weapon, the fact that defendant matched the clothing description provided by the caller, the caller's subsequent indication that the suspects were "right down there" in front of another bar, and the temporal proximity between the moment the officer saw defendant and the moment when the 911 caller observed the men passing the weapon, the officer "initially had a common-law right of inquiry based upon a founded suspicion that criminal activity was afoot," thereby rendering the police encounter lawful at its inception ( People v Price , 109

2015Based on those observations, we conclude that the deputy sheriff had the requisite founded suspicion that criminal activity was afoot sufficient to justify the common-law right of inquiry (see generally People v De Bour, 40 NY2d 210, 223 [1976]; People v Carr, 103 AD3d 1194, 1195 [2013]; People v McKinley, 101 AD3d 1747 , 1748 [2012], lv denied 21 NY3d 1017 [2013]).

2018There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description ( see People v Moore, 6 NY3d 496, 498 ; People v Spencer, 84 NY2d 749, 753 ; People v Hollman, 79 NY2d 181, 184 ; People v Stewart, 41 NY2d 65 , 69; People v Abdul-Mateen, 126 AD3d 986, 988 ; People v Larmond, 106 AD3d 934 ; People v Smith, 207 AD2d

2006Under the second tier of DeBour , the common-law right of inquiry, police officers may stop an individual without the use of force, for the purpose of questioning that person where there is a founded suspicion of criminal activity ( People v. DeBour , at 215 ; People v. Hollman , at 191; People v. Spencer , 84 NY2d 749, 753 , cert. denied 516 US 905 ; People v. Battaglia , 86 NY2d 755, 758 ; People v. Giles , 223 AD2d 39, 40-41 , lv. denied 89 NY2d 864 ; People v. Sanchez , 8 AD3d 504, 505 , lv. denied 3 NY3d 711 ).

2012This behavior, in conjunction with appellant’s furtive actions in hiding the black object, led the officer to have a founded suspicion that criminal activity was afoot, allowing him to engage in a common-law right of inquiry (see People v Hollman, 79 NY2d 181, 184-185 [1992]; Matter of Jamaal C., 19 AD3d 144, 145 [2005] [the appellant’s attempts to conceal a heavy object underneath his jacket suggested the presence of a weapon and justified, at least, a common-law inquiry]).

2012This behavior, in conjunction with appellant’s furtive actions in hiding the black object, led the officer to have a founded suspicion that criminal activity was afoot, allowing him to engage in a common-law right of inquiry (see People v Hollman, 79 NY2d 181, 184-185 [1992]; Matter of Jamaal C., 19 AD3d 144, 145 [2005] [the appellant’s attempts to conceal a heavy object underneath his jacket suggested the presence of a weapon and justified, at least, a common-law inquiry]).

1985Such a common-law right of inquiry, however, does not permit an officer to detain an individual against his will and forcible detention is justified only if there exists a reasonable suspicion that a crime has or is about to be committed (Terry v Ohio, 392 US 1 ; People v Cantor, 36 NY2d 106 ).

1981The reasonableness of the intrusion depends upon an analysis of “(1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience” (People v Howard, 50 NY2d 583, 589, cert den 449 US 1023 ). “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is