Issue before the Court: Whether the police were justified in stopping and frisking Mr.
Johnson.

Factual Background: This is a typical story of an escalating police encounter. Two
police officers observed Mr. Johnson sitting in the driver’s seat of his parked car while
they were patrolling in their marked police vehicle. Mr. Johnson’s car was not
violating any traffic laws. Mr. Johnson moved from the driver’ seat to the passenger
seat, then “momentarily” reached back toward the driver’s seat. The officers stopped
their car behind Mr. Johnson’s and turned on their overhead lights.

Mr. Johnson exited his car, and the officers noticed his pants were unbuttoned and his
belt undone. One of the officers told Mr. Johnson to “hold up,” and Mr. Johnson
walked away from them. The officers caught up with Mr. Johnson, asking him
whether he was nervous or had any weapons. He said no. One of the officers then
frisked Mr. Johnson and found no weapon, but noticed something he thought was a
bag of drugs. Officer Johnson then asked Mr. Johnson what was in his pockets—he
said “nothing,” but, according to the officer, he spontaneously began to empty his
pockets, throwing bags of marijuana on the ground. The officer also noticed a bag of
heroin in his fist.

Mr. Johnson argued, at a suppression hearing that the encounter violated levels 1, 2,
and 3 of De Bour—after those arguments were rejected, he was convicted after trial of
drug possession.

CAL Observes: The majority opinion, written by Chief Judge Wilson, performs a
relatively straightforward reasonable suspicion analysis. Skipping over levels 1 and 2,
the Court held that Mr. Johnson’s movements while in the car, attempts to pull up his
pants, and his appearing nervous while being questions did not amount to reasonable
suspicion—thus, the officer had no justification for stopping or frisking Mr. Johnson
and the drugs had to be suppressed.

More interesting is Judge Rivera’s concurrence in the result, in which she argues that
De Bour’s four-tiered framework should be abolished, and that the police should be
required to have reasonable suspicion before initiating encounters with private
individuals.

Judge Rivera levels two primary attacks on De Bour. The first is jurisprudential: in
many cases, the court, just as the majority did here, skips levels 1 and 2. (Throwing a
bone to appellate lawyers, Judge Rivera laments that arguments directed at levels 1 and

2 are frequently unpreserved.) This renders the law as to those levels undeveloped,
leaving the police relatively unconstrained in sub-Terry encounters.

The second attack is more robust. According to Judge Rivera, the De Bour framework
perversely encourages the police to approach people. Because the distinctions between
the justifications required for each level of intrusion are difficult to define (and are
undeveloped), it is easy for police officers, having initiated a level 1 encounter, to
“escalate” that encounter. For example, because police-citizen stops are dangerous, an
officer will often, having initiated a level 1 or 2 encounter, have reason to fear for their
safety, justifying further intrusion. Judge Rivera could have, but does not, point out
that, having legally initiated an encounter, officers can simply lie about the
circumstances to justify further intrusions (something that seems likely to have
occurred in this case).

The potential for escalation is enhanced because the citizen’s primary defense against
suspicionless police intrusion—the right to terminate a sub-Terry encounter—is
difficult to exercise. Court of Appeals precedent permits the police to direct a person
to stop in order to conduct a level 1 inquiry, See People v. Reyes, 83 N.Y.2d 945 (1994),
and people, especially people of color, having been so directed, rarely feel that they
can walk away from the police and terminate the encounter, even if they are legally
permitted to do so. This permission itself is suspect because a person’s decision to
walk away from the police, when combined with other factors, can provide reasonable
suspicion.

The permissiveness of the De Bour framework has been corrosive. Data establishes
that Level 1 and 2 stops are extremely common and that they are routinely escalated,
despite the fact that they rarely result in summonses or arrests. Police officers
routinely engage in racial profiling in making stops, and people of color and the
mentally ill bear the brunt of escalating stops. De Bour, meant to advance the right to
be left alone and public safety, impedes both.

It remains to be seen whether any of the other Judges will take up Judge Rivera’s
view—at the very least, the argument should be preserved so we can find out.