two common-law inquiry in New York

2015The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot (see People v Loretta, 107 AD3d 541 , 541 [2013], lv denied 22 NY3d 1157 [2014]; People v Carr, 103 AD3d 1194, 1195 [2013]; People v Lowe, 79 AD3d 1676 , 1676 [2010], lv denied 16 NY3d 833 [2011]; see also People v Garcia, 20 NY3d 317, 324 [2012]).

2015The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot (see People v Loretta, 107 AD3d 541 , 541 [2013], lv denied 22 NY3d 1157 [2014]; People v Carr, 103 AD3d 1194, 1195 [2013]; People v Lowe, 79 AD3d 1676 , 1676 [2010], lv denied 16 NY3d 833 [2011]; see also People v Garcia, 20 NY3d 317, 324 [2012]).

2017We conclude, however, that the Trooper's initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time ( see People v Hightower , 136 AD3d 1396, 1396-1397 ; People v Carr , 103 AD3d 1194, 1195 ; see generally People v De Bour , 40 NY2d 210, 223 ).

2017We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time (see People v Hightower, 136 AD3d 1396, 1396-1397 [2016]; People v Carr, 103 AD3d 1194, 1195 [2013]; see generally People v De Bour, 40 NY2d 210, 223 [1976]).

2017Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation ( see Garcia , 20 NY3d at 320-322 ; People v Dealmeida , 124 AD3d 1405, 1407 ).

2017Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation (see Garcia, 20 NY3d at 320-322 ; People v Dealmeida, 124 AD3d 1405, 1407 [2015]).

2017We conclude, however, that the Trooper's initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time ( see People v Hightower , 136 AD3d 1396, 1396-1397 ; People v Carr , 103 AD3d 1194, 1195 ; see generally People v De Bour , 40 NY2d 210, 223 ).

2017We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time (see People v Hightower, 136 AD3d 1396, 1396-1397 [2016]; People v Carr, 103 AD3d 1194, 1195 [2013]; see generally People v De Bour, 40 NY2d 210, 223 [1976]).

2017When confronted with either a level one request for information or a level two common-law inquiry, a person has a right to be "let alone" and may refuse to engage with the police ( see People v Howard , 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980] [the defendant was permitted to refuse to answer a level one request for information]; Moore , 6 NY3d at 500 [the defendant was free to "continue about his business without risk of forcible detention" when police only possessed a founded suspicion that criminality was afoot], citing People v May , 81 NY2d 725, 728 [1992]).

2017When confronted with either a level one request for information or a level two common-law inquiry, a person has a right to be “let alone” and may refuse to engage with the police (see People v Howard, 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980] [the defendant was permitted to refuse to answer a level one request for information]; Moore, 6 NY3d at 500 [the defendant was free to “continue about his business without risk of forcible detention” when police only possessed a founded suspicion that criminality was afoot], citing People v May, 81 NY2d 725, 728 [1992]).

2017We conclude, however, that the Trooper's initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time ( see People v Hightower , 136 AD3d 1396, 1396-1397 ; People v Carr , 103 AD3d 1194, 1195 ; see generally People v De Bour , 40 NY2d 210, 223 ).

2017We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time (see People v Hightower, 136 AD3d 1396, 1396-1397 [2016]; People v Carr, 103 AD3d 1194, 1195 [2013]; see generally People v De Bour, 40 NY2d 210, 223 [1976]).

2017However, the manner in which Mauser approached defendant—that is, by activating the overhead lights on his marked police vehicle and directing defendant to stop—elevated the encounter to a level two common-law inquiry (see generally People v Hollman, 79 NY2d at 191-192 ; People v Faines, 297 AD2d 590, 593 [2002], lv denied 99 NY2d 558 [2002]; compare People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]; People v Savage, 59 AD3d at 819 ; People v Locano, 209 AD2d at 279 ), requiring a founded suspicion that criminality was afoot (see People v Hollman, 79 NY2d at 185 ).

2017However, the manner in which Mauser approached defendant—that is, by activating the overhead lights on his marked police vehicle and directing defendant to stop—elevated the encounter to a level two common-law inquiry (see generally People v Hollman, 79 NY2d at 191-192 ; People v Faines, 297 AD2d 590, 593 [2002], lv denied 99 NY2d 558 [2002]; compare People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]; People v Savage, 59 AD3d at 819 ; People v Locano, 209 AD2d at 279 ), requiring a founded suspicion that criminality was afoot (see People v Hollman, 79 NY2d at 185 ).

2015Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; cf. Lowe, 79 AD3d at 1676-1677; see also Carr, 103 AD3d at 1195 ).

2015Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; cf. Lowe, 79 AD3d at 1676-1677; see also Carr, 103 AD3d at 1195 ).

2015The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot (see People v Loretta, 107 AD3d 541 , 541 [2013], lv denied 22 NY3d 1157 [2014]; People v Carr, 103 AD3d 1194, 1195 [2013]; People v Lowe, 79 AD3d 1676 , 1676 [2010], lv denied 16 NY3d 833 [2011]; see also People v Garcia, 20 NY3d 317, 324 [2012]).

2015The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot (see People v Loretta, 107 AD3d 541 , 541 [2013], lv denied 22 NY3d 1157 [2014]; People v Carr, 103 AD3d 1194, 1195 [2013]; People v Lowe, 79 AD3d 1676 , 1676 [2010], lv denied 16 NY3d 833 [2011]; see also People v Garcia, 20 NY3d 317, 324 [2012]).

2015Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; cf. Lowe, 79 AD3d at 1676-1677; see also Carr, 103 AD3d at 1195 ).

2015Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot (see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]; People v Milaski, 62 NY2d 147, 156 [1984]; cf. Lowe, 79 AD3d at 1676-1677; see also Carr, 103 AD3d at 1195 ).

2004Yet the police activity here well exceeded what occurred in Reyes , especially because it involved pursuit of petitioner, using a squad car to drive into the park area, and use of the spotlight, and an order to defendant, who was on his bicycle, to effectively "pull-over." ( People v May , 81 NY2d at 727.) Even if the initial command to stop may be viewed as unobtrusive and not a seizure under New York law (I would find otherwise if it were necessary [ see People v Bora , 83 NY2d 531, 535-536 (1994)]), petitioner had in the circumstances a right to continue riding, as indeed he did, thus entit

2004Yet the police activity here well exceeded what occurred in Reyes , especially because it involved pursuit of petitioner, using a squad car to drive into the park area, and use of the spotlight, and an order to defendant, who was on his bicycle, to effectively "pull-over." ( People v May , 81 NY2d at 727.) Even if the initial command to stop may be viewed as unobtrusive and not a seizure under New York law (I would find otherwise if it were necessary [ see People v Bora , 83 NY2d 531, 535-536 (1994)]), petitioner had in the circumstances a right to continue riding, as indeed he did, thus entit

2004The police in this case had no more founded suspicion than the police had in People v Reyes ( 83 NY2d 945 [1994] ) and People v Hill ( 302 AD2d 958, 959 [4th Dept 2003]), both of which sanctioned only a level two common-law inquiry.

2004The police in this case had no more founded suspicion than the police had in People v Reyes ( 83 NY2d 945 [1994]) and People v Hill ( 302 AD2d 958, 959 [4th Dept 2003]), both of which sanctioned only a level two common-law inquiry.

2018The Appellate Division majority, reversing County Court, determined that "the Trooper's initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time" ( People v. Gates, 152 A.D.3d 1222 , 1223, 59 N.Y.S.3d 636 [4th Dept. 2017] ).

2018The Appellate Division majority, reversing County Court, determined that "the Trooper's initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time" ( People v. Gates, 152 A.D.3d 1222 , 1223, 59 N.Y.S.3d 636 [4th Dept. 2017] ).

2017However, the manner in which Mauser approached defendant—that is, by activating the overhead lights on his marked police vehicle and directing defendant to stop—elevated the encounter to a level two common-law inquiry (see generally People v Hollman, 79 NY2d at 191-192 ; People v Faines, 297 AD2d 590, 593 [2002], lv denied 99 NY2d 558 [2002]; compare People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]; People v Savage, 59 AD3d at 819 ; People v Locano, 209 AD2d at 279 ), requiring a founded suspicion that criminality was afoot (see People v Hollman, 79 NY2d at 185 ).

2017When confronted with either a level one request for information or a level two common-law inquiry, a person has a right to be "let alone" and may refuse to engage with the police ( see People v Howard , 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980] [the defendant was permitted to refuse to answer a level one request for information]; Moore , 6 NY3d at 500 [the defendant was free to "continue about his business without risk of forcible detention" when police only possessed a founded suspicion that criminality was afoot], citing People v May , 81 NY2d 725, 728 [1992]).

2017Indeed, the right to be let alone significantly distinguishes the limited intrusion allowable under a level two common-law inquiry from a level three seizure: "If . . . 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" ( Moore , 6 NY3d at 500 ).

2017However, the record establishes that the police officer only conducted a level one request for information by telling defendant to “hold up for a second” or “hold on for a second,” and to “turn around” to face the officer, while standing about 10 or 15 feet away from him (see People v Reyes, 83 NY2d 945 [1994], cert denied 513 US 991 [1994]; People v Montero, 284 AD2d 159, 160 [1st Dept 2001], lv denied 96 NY2d 904 [2001]).

2017However, the manner in which Mauser approached defendant—that is, by activating the overhead lights on his marked police vehicle and directing defendant to stop—elevated the encounter to a level two common-law inquiry (see generally People v Hollman, 79 NY2d at 191-192 ; People v Faines, 297 AD2d 590, 593 [2002], lv denied 99 NY2d 558 [2002]; compare People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]; People v Savage, 59 AD3d at 819 ; People v Locano, 209 AD2d at 279 ), requiring a founded suspicion that criminality was afoot (see People v Hollman, 79 NY2d at 185 ).

2017When confronted with either a level one request for information or a level two common-law inquiry, a person has a right to be "let alone" and may refuse to engage with the police ( see People v Howard , 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980] [the defendant was permitted to refuse to answer a level one request for information]; Moore , 6 NY3d at 500 [the defendant was free to "continue about his business without risk of forcible detention" when police only possessed a founded suspicion that criminality was afoot], citing People v May , 81 NY2d 725, 728 [1992]).

2017When confronted with either a level one request for information or a level two common-law inquiry, a person has a right to be “let alone” and may refuse to engage with the police (see People v Howard, 50 NY2d 583, 590 [1980], cert denied 449 US 1023 [1980] [the defendant was permitted to refuse to answer a level one request for information]; Moore, 6 NY3d at 500 [the defendant was free to “continue about his business without risk of forcible detention” when police only possessed a founded suspicion that criminality was afoot], citing People v May, 81 NY2d 725, 728 [1992]).

2008When an officer tried to block defendant’s path and get him to stop, this did not transform the inquiry into a seizure requiring reasonable suspicion (see People v Rod riguez, 49 AD 3d 431 [2008], lv denied 10 NY3d 964 [2008]; People v Cherry, 30 AD3d 185, 185-186 [2006], lv denied 7 NY3d 811 [2006]; People v Grunwald, 29 AD3d 33, 38-39 [2006], lv denied 6 NY3d 848 [2006]).

2008When an officer tried to block defendant’s path and get him to stop, this did not transform the inquiry into a seizure requiring reasonable suspicion (see People v Rod riguez, 49 AD 3d 431 [2008], lv denied 10 NY3d 964 [2008]; People v Cherry, 30 AD3d 185, 185-186 [2006], lv denied 7 NY3d 811 [2006]; People v Grunwald, 29 AD3d 33, 38-39 [2006], lv denied 6 NY3d 848 [2006]).

2004Yet the police activity here well exceeded what occurred in Reyes , especially because it involved pursuit of petitioner, using a squad car to drive into the park area, and use of the spotlight, and an order to defendant, who was on his bicycle, to effectively "pull-over." ( People v May , 81 NY2d at 727.) Even if the initial command to stop may be viewed as unobtrusive and not a seizure under New York law (I would find otherwise if it were necessary [ see People v Bora , 83 NY2d 531, 535-536 (1994)]), petitioner had in the circumstances a right to continue riding, as indeed he did, thus entit