Criminal Defense - Staring does not provide Probable Cause

It sounds like a bad joke: A cop rolls up to a citizen and says “what’s up, guys.” The citizen does not respond. He puts his head down and starts walking faster. The reason for the stop? He was staring. The New York Law Journal reported that “[a]n appeals court set aside a man’s conviction for weapons possession after concluding that his arrest was premised on nothing more than the defendant looking in the direction of police as he walked in a ‘higher-crime’ area of Buffalo.” Was this a friendly greeting or a police inquiry?

The Court finds that the police’s action required a reason. More than simply a police officer engaging with a citizen, the officer engaged in a level of intrusion as discussed by De Bour and its progeny. Indeed, [the officers engaged in a level one approach and request for information when they concluded the traffic stop after observing defendant and the other men walking down the sidewalk, crossed the street in their marked patrol vehicle in order to drive alongside the men, and asked them the basic, nonthreatening question, “what’s up, guys?” (see People v. Howard, 129 AD3d 1654, 1654; People v. Johnston, 103 AD3d 1202, 1203, lv denied 21 NY3d 912; People v. Carr, 103 AD3d 1194, 1194). Contrary to the People’s contention, it cannot be said, under such circumstances, that the officers’ approach and inquiry was merely a “friendly greeting” that did not constitute a request for information (cf. People v. Thornton, 238 AD2d 33, 35)] Pp. 2 (internal citations preserved).

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