The Right to Remain Silent: Use It Before Your Mouth Becomes Exhibit A

In New York, you do not ordinarily have to answer Law Enforcement’s investigative questions about what happened, who was there, how it happened, why it happened, where you have been, what you possess or whether or not you committed a crime.

You may (and Should) invoke Your Right to Remain Silent and ask for an Attorney. But there will be a few questions you may have to answer. Law Enforcement does have certain constitutional allowances, and may ask questions, generally, within the following Four-Tiered Framework:

Tier One ~ Request for Information of Identification

The least intrusive level of an encounter with Law Enforcement. An officer needs an objective, credible reason to approach and ask limited, non-threatening questions, but that the reason need not indicate criminal activity. The encounter must remain noncoercive; it cannot become a detention, search, or accusatory interrogation without greater justification (see People v De Bour, 40 NY2d 210 [1976]).

Tier Two ~ Common-Law Inquiry

Law Enforcement need a founded suspicion that criminal activity is afoot to ask more pointed, explanatory questions about an individual’s conduct. The encounter remains short of a forcible seizure, but the officer may pursue an explanation of suspicious circumstances (see De Bour, 40 NY2d at 223).

Tier Three  ~  Stop & Frisk

A forcible stop or a forcible ‘Stop & Frisk’ requires a reasonable suspicion that a particular person has committed, is committing, or is about to commit a felony or misdemeanor. A pat & frisk is permitted only when the officer also reasonably suspects the individual to be armed and dangerous and to be posing an immediate safety threat (see People v Medina, 209 AD3d 1059 [3d Dept 2022]).

Tier Four  ~  Arrest

In New York, a lawful arrest by police requires probable cause to believe the individual committed a crime or offense. It is the most intrusive means of contact with law enforcement, permitting an officer to take an individual into custody. Any search incident to a lawful arrest must remain within the applicable constitutional limits (De Bour, 40 NY2d at 223).

The Capital Region

In the Capital Region of the State of New York the Third Department Appellate Division will apply the De Bour Four-Tier Framework. The Third Department has upheld stops based on reasonable suspicion tied to specific information about a vehicle occupant (see People v Hunter, 219 AD3d 975 [3d Dept 2023]; People v Johnson, 2025 NY Slip Op 01013 [3d Dept]).

An arrest requires probable cause to believe the person committed a crime or offense. It is the most intrusive tier and permits the officer to take the person into custody; any search incident to a lawful arrest must remain within the applicable constitutional limits. People v. De Bour, 40 N.Y.2d 210, 223 (1976)

New York uses the De Bour framework to assess whether a police encounter was justified. The greater the intrusion, the stronger the required basis:

1. Request for information — Police need an objective, credible reason to approach and ask basic questions.

2. Common-law inquiry — More focused or investigative questioning requires a founded suspicion that criminal activity is afoot.

3. Stop and frisk — A forcible stop requires reasonable suspicion that a person committed, is committing, or is about to commit a crime. A frisk requires reason to believe the person is armed and poses a danger.

4. Arrest — An arrest requires probable cause.

The Third Department continues to apply these escalating standards. It has recently upheld stops based on reasonable suspicion tied to specific information about a vehicle occupant, People v. Hunter, 219 A.D.3d 975 (3d Dep’t 2023), and reaffirmed that an arrest requires probable cause, People v. Johnson, 2025 NY Slip Op 01013 (3d Dep’t). The Third Department has also recognized that a founded suspicion may justify a more limited extension of an otherwise lawful encounter, People v. Blandford, 190 A.D.3d 1033 (3d Dep’t 2021). The underlying four-tier rule remains People v. De Bour, 40 N.Y.2d 210 (1976).