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New York Search and Seizure: The Four Levels of Police Intrusion

Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

The defendant filed a motion to suppress the gun that was seized by police, arguing that police intrusion was not justified.

The Court’s Decision

The court began by noting that under New York law, there are four categories of police/citizen encounters. As police action becomes more intrusive, an officer must have more

  • Level 1: An officer can request basic information if he has an objective, credible reason for doing so;
  • Level 2: An officer can ask more specific questions if he has a reasonable suspicion that criminal activity is afoot;
  • Level 3: An officer can forcibly stop and detain a person if he has reasonable suspicion that they were in a felony or misdemeanor; and finally,
  • Level 4: An officer can arrest if he has probable cause that a person has committed a crime.

Here, the court held that the interaction initially began as a level-two intrusion when the officer asked the defendant to stop from his vehicle. However, when the officer exited the police vehicle and approached the defendant on foot, the encounter escalated to a level-three intrusion. This, the court explained, required the officer have a reasonable suspicion that the defendant was involved in a felony or misdemeanor.

The court then went on to hold that the officer’s observations that the defendant had a bulge in his pocket was not indicative of criminal activity, and did not give rise to a reasonable suspicion the defendant was involved in committing a crime. Thus, the court granted the defendant’s motion to suppress.

Have You Been Arrested on a New York Gun Case?

If you have recently been arrested and charged with the possession of a firearm in New York, contact the dedicated New York criminal defense attorneys at the law firm of Tilem & Associates. At Tilem & Associates, we have decades of experience representing citizens who have been charged with serious New York gun possession crimes. We handle every case with the utmost care and listen to the unique needs of our clients. To learn more, call 877-377-8666 to schedule a free consultation today.

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