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Pro Bono Barrister: Landmark Debour case set four levels of intrusion

Arthur Schack, Eagle file photo

Brooklyn Daily Eagle

These guidelines, as reviewed by the esteemed panel at the Inn meeting, are as follows:

The first level of intrusion is harmless police questioning, meaning that there is no need to admit to one’s identity, reason for being where one is, or travel plans. Police must have an objective and credible reason still to ask these questions. And, even if they do, a “stop” has not legally occurred.

The second level, according to Debour, applies when a police officer “closely and intensely” questions someone. But even this is not actually a “stop” because the citizen has the right to leave legally; also at the second level the officer must have “suspicion that crime is afoot.”

The third level is when a person is, in fact, detained, which means that a “stop” has occurred. In order to make an official “stop,” during which a citizen is not able to walk or exercise his/her right to be left alone, a police officer must “entertain reasonable suspicion that a particular person has committed, is committing, or is about to commit a felony or misdemeanor,” says Debour.

An officer may frisk a suspect if the officer feels a threat of physical injury because the detainee might be armed.

The fourth level of intrusion is the arrest itself. At this arresting level, the officer must have probable cause that the detainee has committed a crime or offense in his presence.

Even a bulge in the pocket is not enough to warrant a “stop” because it could be any object. A waistband bulge, on the other hand, is enough to warrant an official “stop” because it could be a gun; the touching of the waistband or waist area upon questioning could lead an officer to believe that the person possesses a weapon and lead to a frisk being performed. The only way a “stop” can be made due to a pocket bulge is if the shape of the bulge can be articulated and defined by the officer as a firearm.

Justice Ellen Spodek is Inn president. Other Inn leaders include President-elect Dave Chidekel, Counselor Justice Arthur Schack, Treasurer Justice Miriam Cyrulnik and Secretary Jon Besunder. The Inn was founded 13 years ago by Justice Marsha Steinhardt, retired Justices Gerard Rosenberg and Abraham Gerges, and former Justice Edward Rappaport, the Inn’s president emeritus.

 

April 21, 2014 - 11:00am


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