There's a pretty good discussion going on in the comments on the post below about my encounter with the police on Sunday evening. (Please do feel free to add your $0.02 anytime.) One commenter provided some very interesting links, and I did a little further research, and I stumbled on some very fascinating stuff, especially as it relates to requirements to produce ID and the constitutional tests for the various levels of police intrusion. (This would, I'm sure, be an excellent time to remind you that IANAL.) I used a report produced by the Office of the Attorney General of New York on the NYPD's "stop and frisk" practices as a jumping-off point, as I found its legal analyses especially useful and easy to follow.
To that end, I'm promoting the below from the comments, as I felt it was worthy of its own post.
The OAG report on stops and frisks is very interesting, and I read Chapter 2 of that report with great interest: it delineates various tests to develop a Fourth Amendment standard governing police stops. It's clear that the police did not stop me under a Terry stop; as laid out in Terry v. Ohio, the officers must have a "reasonable suspicion" of criminality. (Here's the answer to the ID question: New York's stop-and-identify law, NY CLS CPL §140.50(1), apparently applies only to Terry stops, as it refers to officers detaining suspects -- which requires reasonable suspicion -- not merely questioning them.) Rather, it appears that the officers' questioning of me was a first- or possibly second-tier "De Bour encounter"; People v. De Bour, which is really fascinating reading, outlines a test for four separate, escalating levels of police intrusion. To quote the OAG report, "at the first, least intrusive level, an officer may request information from a civilian about his or her identity, reason for being at a particular location, or travel plans, where the request is 'supported by an objective, credible reason, not necessarily indicative of criminality.'" The second De Bour tier is called "the common-law right of inquiry". The OAG report again:
Under the "common law right," an officer may approach and closely question a civilian to the extent necessary to gain explanatory information beyond identity and travel plans. Still, however, the officer may not detain the civilian; the individual always remains free to leave. This second level of intrusion -- which falls short of a Fourth Amendment "seizure" (a "stop") sufficient to implicate Terry -- requires a founded suspicion that "criminal activity is afoot." The difference between the De Bour tiers is "itself subtle" and rests upon the content and number of questions, and the "degree to which the language and nature of the questions transform the encounter from a merely unsettling one" under De Bour's first level, "to an intimidating one" under its second.
(The third and fourth De Bour tiers, which roughly correspond, respectively, to a Terry stop and an arrest, obviously don't apply in my particular encounter the other night.)
I'm uncertain as to whether my encounter with the police was a first-tier or a second-tier encounter under De Bour; I was asked my identity and my reasons for photographing a train. I felt "intimidated" (second-tier) rather than "unsettled" (first-tier), though, chiefly because of the officer's invoking 9/11 and his assertion that "al-Qaeda sometimes hires guys that look like you." Under De Bour, it would seem that the standard required to escalate the encounter from the first to the second tier would be "a founded suspicion that criminal activity is afoot." I don't believe that that standard was reached, as my behavior was legal, not furtive in any way, and that I responded to the officers' questions. As the appellate court wrote in De Bour, "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand."
Incidentally, to go into greater detail on the ID issue, a portion of the OAG report (Chapter 2, Part 1C, Sections 2 & 3) is again worth quoting at some length:
1. Refusal to Answer Questions, or to Give Identity
The United States Supreme Court has held that "[a citizen] may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." Similarly, the refusal to identify oneself will not alone give rise to "reasonable suspicion."
New York courts, likewise, have held that, while police officers may pose nonthreatening questions seeking basic information -- e.g., regarding identity, address or destination -- when they have an objective, credible reason to do so, civilians are not required to answer or to provide proof of identity. Although some verbal responses to questions at this level can provide a basis for greater intrusion, such as obviously false answers, officers may not effect a more intimidating level-two "common law" inquiry, nor a level-three "stop," based solely upon a civilian's refusal to answer or failure to provide identification.
2. Avoidance of Police/ Nervous Reaction Upon Questioning
The United States Supreme Court has likewise held that a citizen who does not wish to answer police questions may disregard the officer's questions and walk away. Refusal to answer an officer's questions, standing alone, does not satisfy the constitutional "reasonable suspicion" test.
Under governing New York law, an individual has a constitutional right to refuse to respond to questions posed by a police officer, may remain silent, and may even walk away without fearing an arrest or detention by the officer. "Flight alone . . . or in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right ‘to be let alone' and refuse to respond to police inquiry."
Finally, "[i]n light of the recognized ‘unsettling' aspect of a police-initiated inquiry of citizens," some New York courts have held that nervous reaction to nonthreatening questioning is not sufficient to authorize a greater intrusion.
(By the way, I realize that the OAG's report is not a court opinion, but I link to it and quote from it because it provides links to the actual court opinions, and because it does a good job of putting these complicated legal issues into everyday language understood by laypeople like me.)
This clears up that issue about the lack of compulsion to produce ID when requested by the police in this circumstance, but I do want to reiterate that not all police follow every laws in all circumstances, and my refusal to produce ID may well have resulted in my arrest...and even an unjustifiable, wrong arrest still means that you have to go to jail and deal with various massively unpleasant inconveniences.