This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 123
The People &c.,
Respondent,
v.
Anthony Barksdale,
Appellant.
Jan Hoth, for appellant.
Sheila L. Bautista, for respondent.
New York Civil Liberties Union et al., amicis curiae.
FAHEY, J.:
On this appeal we consider the admissibility of
evidence seized following defendant’s arrest in the lobby of an
apartment building in Manhattan that was enrolled in the trespass
affidavit program (TAP). Under the particular facts and
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circumstances of this case we conclude that the record supports
the lower courts’ determinations that the police had an objective
credible reason to approach and request information from
defendant, and thus to begin the encounter that culminated in his
arrest and the seizure of the disputed evidence.
Defendant pleaded guilty to three counts of criminal
possession of a weapon in the third degree, but on this appeal he
challenges only one of those charges, which is based on the
discovery of a razor blade on defendant’s person following his
arrest for criminal trespass in the third degree on April 21,
2009. Defendant sought suppression of the razor blade on the
ground “that he was unlawfully stopped and arrested,”1 and at the
ensuing hearing the People presented the testimony of a police
officer who participated in the seizure of that weapon.
On the date in question, the police officer was
directed to conduct a foot patrol in a Manhattan neighborhood
1
That request arguably implicates one of the higher
levels of the multi-tiered framework for evaluating police-
initiated encounters with private citizens, including those that
occur in residential apartment buildings (see People v Roque, 99
NY2d 50, 52 [2002]), that this Court established in People v De
Bour (40 NY2d 210, 223 [1976]) and People v Hollman (79 NY2d 181,
184-185 [1992]). But heretofore defendant has not approached
this suppression question as implicating anything other than a
level one De Bour inquiry, and we thus do not consider his
belated request at oral argument to apply a different level of
that framework (see generally People v Lovett, 25 NY3d 1088, 1091
[2015]). Nor do we have any cause to address the propriety of
either of the police officers’ hypothetical actions in the event
defendant had refused to respond to his inquiry, as defendant
advances no arguments in that respect.
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and, in furtherance of that assignment, he looked into buildings
for the purpose of locating either trespassers or those
committing other crimes. The officer targeted buildings enrolled
in the TAP, which he characterized as a form of solicitation of
police assistance for structures that are prone to trespassers.2
The officer stated that buildings included in the TAP have signs
denoting their enrollment, and that trespassers are subject to
arrest. While on his foot patrol the officer observed such a
sign at an apartment building on West 129th Street, and he and
2
This Court has similarly described the TAP:
“Often a building owner or manager files a
‘trespass affidavit’ with police stating that
the building has been plagued by illegal drug
trade and asks police to patrol the building
for trespassers. Police then stop people
they encounter in the halls to ask for
identification and to inquire if they are
residents or otherwise lawfully in the
building” (Roque, 99 NY2d at 52).
We note, however, that Roque’s description of the TAP is not
perfectly applicable here because the materials before us reflect
that the New York County District Attorney’s Office, not the New
York City Police Department (NYPD), controls the enrollment of
buildings in the TAP in Manhattan. That distinction is arguably
material to this matter given the reference by amici including
the New York Civil Liberties Union to discovery in Ligon v City
of New York (925 F Supp 2d 478 [SD NY 2013]), a class action
brought against the City of New York and the NYPD challenging
“stops made by the police on suspicion of trespass outside of
certain privately-owned buildings in the Bronx” (id. at 483).
Based on Ligon, the amici contend that the order appealed from
“rests on the faulty assumption that enrollment in the [TAP]
signifies that a building is the site of criminal activity.” We
do not, however, credit that point here inasmuch as the materials
before us reflect that the TAP is administered differently in
Manhattan than it is in New York City’s other boroughs.
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his police partner entered that building apparently for the
purpose of conducting a “vertical patrol,” that is, a sweep of
each floor of the building.
When they entered the building, the officers saw
defendant standing in its lobby. Within a few minutes they asked
defendant “what he was doing [there].” Defendant responded that
he was visiting a friend but, upon further questioning, defendant
acknowledged both that he could not identify that friend and that
he did not live in the building. The officers then arrested
defendant, whereupon the testifying officer’s police partner
frisked defendant and found a razor blade in one of his pants
pockets. Although there was no private security guard in front
of the building, the testifying officer recalled that the door to
the building had a lock on it, and that he saw a sign indicating
that the building was enrolled in the TAP when he entered that
structure.
The hearing court denied suppression of the razor
blade, concluding that “[b]ecause the building [was] part of the
[TAP, the testifying officer] had an objective credible reason to
ask defendant why he was there,” and defendant subsequently
pleaded guilty to, inter alia, the relevant count of criminal
possession of a weapon in the third degree. On appeal, the
Appellate Division affirmed, writing that the testifying
officer’s observation of “defendant standing in the lobby of a
[TAP] building . . . gave [him] an ‘objective credible reason’ to
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ask defendant whether he lived there, which constituted a level
one request for information” under this Court’s longstanding
metric for evaluating police-initiated encounters with civilians
(110 AD3d 498, 498 [1st Dept 2013], quoting Hollman, 79 NY2d at
190). The Appellate Division further concluded that the
testifying officer’s “inquiry was not based merely on the
reputation of the area, but also on the fact[s] that the building
was so prone to trespassing that the landlord had request[ed]
police assistance in removing intruders[,] . . . that defendant
was in a plainly nonpublic lobby of a posted trespass affidavit
building, and that the officer was aware of this at the time he
made his inquiry” (110 AD3d at 498-499 [internal quotation marks
omitted]). A Judge of this Court granted defendant leave to
appeal (23 NY3d 1034 [2014]).
Our analysis begins with the points “that whether
police conduct in any particular case conforms to De Bour is a
mixed question of law and fact,” and that, in such circumstances,
“our review is limited to whether there is evidence in the record
supporting the lower courts’ determinations” (People v McIntosh,
96 NY2d 521, 524 [2001]). On the merits, our analysis proceeds
under the first of the four levels of De Bour, which sets a low
bar for an initial encounter: it “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” (People v Moore, 6 NY3d
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496, 498 [2006]; see De Bour, 40 NY2d at 223).
Here the record reflects that the encounter occurred in
a private space restricted by signage and a lock, and that police
assistance in combating trespassing had been sought through
enrollment in the TAP. Put simply, the coupling of defendant’s
presence in the subject building with the private and protected
nature of that location supports the intrusion giving rise to
what became the seizure in question. We conclude that there is
record support for the determination that the police had an
objective credible reason to request information from defendant
(see generally People v Hendricks, 43 AD3d 361, 362-363 [1st Dept
2007]; People v Tinort, 272 AD2d 206, 206-207 [1st Dept 2000], lv
denied 95 NY2d 872).3
In so concluding we note that the police patrol at
issue here was intended in part to combat trespassing, that is,
“knowingly enter[ing] or remain[ing] unlawfully in or upon a
premises” (Penal Law § 140.05), that the building at issue was
enrolled in the TAP for the purpose of addressing that problem,
and that this branch of the TAP is rooted in tenant protection
3
Our decision herein does not conflict with McIntosh (96
NY2d 521), which teaches that geography alone, that is, mere
presence in a high crime location, does not provide a predicate
for even a level one De Bour inquiry (see id. at 526-527). The
intrusion here was borne of more than simply presence in a high-
crime neighborhood, inasmuch as it was based on defendant’s
presence in a private area of a building, to which access was
restricted by signage and a lock, and which was enrolled in the
TAP.
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throughout Manhattan. Under these circumstances a police officer
could have identified a trespasser only by requesting
information.
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be affirmed.
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People v Anthony Barksdale
No. 123
RIVERA, J.(dissenting):
According to the undisputed facts, police officers
entered a building, saw defendant standing in the lobby,
immediately approached and stopped him, and asked what he was
doing in the building. Based on his initial response, police
continued questioning defendant and, upon finding his answers
unsatisfactory, arrested him. He now challenges the officers'
initial approach and request for information as a violation of
his right to be free from unwarranted police intrusions.
On the strength of our precedent, I disagree with the
majority's conclusion that the police may approach and request
information from a person, who the police fail to observe doing
anything other than standing still, simply because the area where
the police find the person is the lobby of a building with an
alleged history of criminal trespass activity. This conclusion
is not supported by De Bour and its progeny, and compromises the
privacy interests that first motivated this Court to adopt the
four-tiered analytic framework for evaluating police-initiated
encounters (see People v Hollman, 79 NY2d 181, 195 [1992]; People
v De Bour, 40 NY2d 210 [1976]). Therefore, I dissent.
As in all cases implicating the De Bour analysis, our
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review of the issues must begin with an understanding that the
holding in De Bour "reflected our judgment that encounters that
fall short of Fourth Amendment seizures still implicate the
privacy interests of all [persons] and that the spirit underlying
th[e] words of the [State or Federal Constitution] required the
adoption of a State common-law method to protect the individual
from arbitrary or intimidating police conduct" (Hollman, 79 NY2d
at 195). The approach in De Bour balances the rights of the
individual to be free from investigative confrontations and the
authority of the police to approach individuals in furtherance of
their law enforcement function (40 NY2d at 219), and "is largely
based upon considerations of reasonableness and sound State
policy" (Hollman, 79 NY2d at 195).
As now well-established, De Bour provides "a four-
tiered method for evaluating the propriety of encounters
initiated by police officers in their criminal law enforcement
capacity" (Hollman, 79 NY2d at 184). "Each progressive level . .
. authorizes a separate degree of police interference with the
liberty of the person approached and consequently requires
escalating suspicion on the part of the investigating officer"
(id. at 185). As relevant to the issues raised in this appeal,
"a police officer, acting with the requisite level of suspicion,
[who] approach[es] an individual for information" may request
identification and ask "questions that relate to the person's
identity and reason for being in the area" (id. at 190-91; see De
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Bour 40 NY2d at 220). This type of police encounter, referred to
as a level one or tier one intrusion, constitutes an interference
with the individual's liberty, and therefore must be justified by
"an objective credible reason[,] not necessarily indicative of
criminality" (Hollman, 79 NY2d at 185; De Bour, 40 NY2d at 223).
To ensure against arbitrary conduct, an officer's
actions cannot have resulted from "mere whim, caprice or idle
curiosity" (De Bour, 40 NY2d at 217; Hollman, 79 NY2d at 190; see
also People v McIntosh, 96 NY2d 521, 525 [2001]). Instead, the
legality of an encounter under our De Bour jurisprudence depends
on "whether a nexus to [defendant's] conduct existed, that is,
whether the police were aware of or observed conduct which
provided a particularized reason to request information"
(McIntosh, 96 NY2d at 527). The fact that the encounter occurs
in an area with a reputation for criminal activity, alone, cannot
provide the requisite justification for even "basic,
nonthreatening questions regarding . . . identity, address or
destination" (Hollman, 79 NY2d at 185; see also McIntosh, 96 NY2d
at 527, citing People v Holmes, 81 NY2d 1056, 1058 [1993] ["fact
that an encounter occurred in a high crime vicinity, without
more," fails to pass scrutiny under De Bour and Hollman]).
A court's determination of the outer contours of a
level one police encounter is further informed by this Court's
recognition of two limitations on police officers' authority to
approach and ask questions. First, is the Hollman Court's
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instruction that "[t]he four-tiered method for analyzing police
encounters gives officers acting in their law enforcement
capacity leeway in approaching individuals for information. It
does not, however, permit police officers to ask intrusive,
potentially incriminating questions unless they have a founded
suspicion that criminality is afoot" (79 NY2d at 192). Second,
is the well-established constitutional right of individuals "'to
be let alone' and to refuse to respond to police inquiry" (People
v May, 81 NY2d 725, 728 [1992], citing People v Howard, 50 NY2d
583, 590 [1980]). As the Court has explained, "while the police
[have] the right to make the inquiry, defendant ha[s] a
constitutional right not to respond" (Howard, 50 NY2d at 590;
Davis v Mississippi, 394 US 721, 727 n6 [1969]).
Here, the officers immediately approached defendant
upon entering the lobby, after traveling directly from the
building's entrance. They had no prior information that
defendant was trespassing or involved in some other illegal
activity, which might justify a request for information (see
McIntosh, 96 NY2d at 527 [officer might be justified under De
Bour level-one to request information based on a tip or other
information about illegal activity in the area, including
information that a fugitive or suspect had been reported in a
specific area]). There were no "attendant circumstances . . .
sufficient to arouse the officers' interest" of the type
recognized in De Bour, and our subsequent cases (see De Bour, 40
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NY2d at 220 [where officers observed De Bour "cross[] the street
to avoid walking past" them, in a drug activity prone area];
Hollman, 79 NY2d at 193 [officer observed Hollman move his and a
companion's bags several times after boarding a bus]; McIntosh,
96 NY2d at 527 [investigator observed defendant, seated in the
back of the bus, pushing a black object between himself and a
companion]). Nor did the officers personally observe conduct by
defendant that would provide an objective credible,
particularized reason to request information, such as defendant
walking around the lobby with no apparent purpose, or standing
idle for a lengthy period of time, both of which would suggest he
was neither tenant nor guest. Nor did the officers find
defendant uncertain about the location of the elevator or stair
case, or other common areas of the building, which are known to
tenants and the building's employees, again providing an
objective basis to inquire as to why he was in the lobby.
Instead, the only information the officers had about the
defendant was that he was standing in the lobby of a building,
which was alleged by the landlord to have been the site of prior
criminal trespass. However, under our law, even a minimal
intrusion of defendant's liberty requires that the police
officers have an objective credible reason that is not based
solely on the alleged criminal activity of defendant's location
(McIntosh, 96 NY2d at 527).
Nevertheless, the majority concludes that the police
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encounter here is not based solely on the alleged criminal
activity in the building because defendant's presence in a TAP-
enrolled building, was coupled "with the private and protected
nature of that location" (Majority Op, at 6). I disagree with
what is essentially the majority's "presence plus TAP"
justification for a level one police intrusion, because the basis
for TAP enrollment is the building's alleged history of criminal
activity. A building participating in TAP is nothing other than
an alleged "high crime vicinity," which, in turn, is the same
proposed additional factor this Court explicitly rejected in
McIntosh as insufficient to justify a request for information.
Of course, a location's reputation for criminal
activity may be a factor, along with other information, that
provides an officer with the credible objective reason to request
information (see McIntosh, 96 NY2d at 526-27). Still, criminal
activity cannot be coupled, as the majority concludes here, with
such benign conduct as standing still. While the requisite
objective credible reason need not indicate criminality (see De
Bour, 40 NY2d at 223), it must, at least, suggest a reason to ask
an individual for their identifying information (see McIntosh, 96
NY2d at 527 [request for information justified only if "a nexus
to [defendant's] conduct existed"]).
There is no way of escaping the simple truth that under
the majority's approach police officers are free to inquire of
those who are not trespassers, such as tenants and their guests,
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on the assumption that they are breaking the law by their mere
presence in a TAP-enrolled building. That type of over inclusive
policing cannot be squared with our requirement that a nexus to
the conduct exist, that is to say that the police must have a
particularized reason to request information, based on the
awareness of information or the observation of conduct (see id.
at 527). It also ignores the "considerations of reasonableness
and sound State policy" (Hollman, 79 NY2d at 195), namely, the
privacy interests of all persons, and our commitment to the
"protect[ion of] the individual from arbitrary or intimidating
police conduct" that provide "continued vitality" to the De Bour
analytic framework (id.; see De Bour, 40 NY2d at 218-220).
The majority seeks to rationalize its holding, and the
impact of its decision on TAP-enrolled building residents and
their guests, by its assertions that "the police patrol at issue
here was intended in part to combat trespassing", and that a
police officer could have identified a trespasser only by
requesting information (majority op, at 6). The argument that
routine police encounters, like the one at issue here, are
necessary to facilitate law enforcement plainly ignores the De
Bour Court's warning that "the area of crime prevention" "is
highly susceptible to subconstitutional abuses" (40 NY2d at 220).
Indeed, the Court saw fit to "subject [this function] to the
greatest scrutiny; for whereas a [police officer's] badge may
well be a symbol of the community's trust, it should never be
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considered a license to oppress" (id. at 220; see also id. at 220
n 2 [noting that certain law enforcement techniques used "to
create an atmosphere of security . . . . may infringe on the
privacy and freedom of individuals"]). The majority's sanction
of the blanket intrusion on the liberty of all persons
encountered in a building, including those wholly innocent of any
criminal activity, cannot meet such heightened review.
With respect to the contention that police can only
determine whether someone is a trespasser by approaching and
requesting information from an individual who is standing in a
private area of a building, the same could be said of other
crimes where a person could be standing in plain sight and be in
violation of the law, such as, for example, crimes of possession,
(see Penal Law § 265.02 [criminal possession of a weapon in the
third degree]; Penal Law § 220.16 [criminal possession of a
controlled substance in the third degree]). The majority's
analysis thus results in the evisceration of level one of the De
Bour framework as applied to other categories of crimes, not just
trespassing.
Even if this were not the case, there are no facts in
the record here, or case law, in support of the majority's
premise. All that occurred here is that the officers entered the
building and immediately approached the defendant and started
asking him questions. However, where an officer or third party's
safety is not implicated, an officer can become aware of
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information about a person that provides an articulable reason to
initiate an encounter: a "nexus to conduct" (McIntosh, 96 NY2d at
527). Based on that nexus, the officer is justified in
requesting information, as well as "in keeping defendant under
observation" (Howard, 50 NY2d at 590).
Nevertheless, permitting an officer to request
information from someone standing in a TAP-enrolled building
would be problematic for another reason: the officer is not
assured of a truthful answer. Based on the individual's
response, the officer will either accept it as true, which may
not be the case, or continue to ask questions, presumably because
the officer suspects the person is not answering truthfully and
is indeed trespassing. This very scenario reveals the
fundamental problem with the majority's analysis. That is to
say, that the initial police encounter, in practice, will, by
necessity, escalate beyond a level one request for information.
As this Court has explained, "[o]nce the officer asks more
pointed questions that would lead the person approached
reasonably to believe that [the person] is suspected of some
wrongdoing and is the focus of the officer's investigation, the
officer is no longer merely seeking information" (Hollman, 79
NY2d at 185). Rather than preserve the integrity of the De Bour
analytic framework, this potential for the escalation of police
encounters undermines the "continued vitality" of that analysis.
No less so because the request for information involved
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in this case is not a "general, nonthreatening encounter in which
an individual is approached for an articulable reason and asked
briefly about his or her identity, destination, or reason for
being in the area" (id. at 191). Instead, it is a request for
information that by its nature serves to incriminate, or
potentially increase an officer's suspicion of criminal activity.
Along these same lines of concern, the majority fails
to address what happens if the person approached refuses to
answer, and remains silent, or says "I do not have to talk to
you." Or, what if the individual simply walks away? Given that
an individual in a police-initiated encounter may seek to
exercise that person's "right to be left alone" (People v Moore,
6 NY3d 496, 500 [2006]), and this Court's previous statements
that an individual need not talk to an officer and may walk away
from the police in a noncustodial encounter (see Howard, 50 NY2d
at 590-91; May, 81 NY2d at 728; People v Holmes, 81 NY2d 1056,
1058 [1993]; Moore, 6 NY3d at 500), the potential for escalation
seems all too likely.
The majority fails to consider what this Court clearly
recognized in De Bour, namely that police encounters are fraught
with tension. Even a level one encounter can cause anxiety.
For, "[i]t is certainly unsettling to be approached by a police
officer and asked for identification. Even though [the Court]
term[ed] this a request for information, [it] d[id] not mean to
suggest that a reasonable person would not be taken aback by such
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a request" (Hollman, 79 NY2d at 192). Accordingly, we have
developed legal rules sensitive to the reality "that the tone of
police-initiated encounters with civilians can be subtle and
ever-shifting, that words and gestures are susceptible to many
varying interpretations, and that suspicion can grow based on
intangibles evident only to the eyes of a trained police officer"
(id. at 191).
As a final matter, although not specifically addressed
by the majority, one of the People's arguments warrants
consideration, given that the argument relies on general notions
of fairness and just treatment under the law. The People argue
that residents of buildings in high-crime areas "are entitled to
feel safe in their homes" and "should not have to contend with
intruders simply because they do not have a doorman, security
guard or other building employee to restrict access." Certainly
our law ensures that persons unable to afford the private
security available to those with greater financial means are
nonetheless guaranteed the full protection of our laws,
regardless of their economic status. That is, of course, the
promise of our legal system: all are equal under the law.
However, TAP enrollment of a building known for criminal activity
does not ensure for its residents an equal footing with persons
living, visiting, or working in buildings with private security
personnel. The experiences of these two groups during encounters
with the "security force" in their respective buildings are not
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similar. In a TAP-enrolled building the police do not know the
tenants--otherwise they would have no reason to request
information of those they encounter during their routine vertical
sweeps. In contrast, in a building with private security
personnel, the tenants, and often their guests, are known to the
building employees and thus can avoid the indignity of being
assumed to be trespassers. Moreover, in a building with private
security personnel, it may be possible for the tenants to
influence the application of security protocols, and choose how
they want their building protected. Here, there is nothing to
suggest that the tenants participated in deciding to enroll in
TAP. Given these differences, tenants in TAP-enrolled buildings
are not assured equal treatment by stripping them of their rights
to be free from police encounters that fail to meet minimal
standards.
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, affirmed. Opinion by Judge
Fahey. Judges Pigott, Abdus-Salaam and Stein concur. Judge
Rivera dissents in an opinion in which Chief Judge Lippman
concurs.
Decided October 22, 2015
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