Safety Precautions
It is “too plain for argument,” said the Supreme Court, that officer-safety concerns during detentions are “both legitimate and weighty.”42 This is largely because the officers are “particularly vulnerable” since “a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger.” 43
Sometimes the danger is apparent, as when the detainee was suspected of having committed a felony, especially a violent felony or one in which the perpetrators were armed.44 Or it maybe the detainee’s conduct that indicates he presents a danger; e.g., he refuses to comply with an officer’s order to keep his hands in sight, or he is extremely jittery, or he won’t stop moving around.45
And then there are situations that are dangerous but the officers don’t know how dangerous.46 For example, they may be unaware that the detainee is wanted for a felony or that he possesses evidence that would send him to prison if it was discovered. Thus, in Arizona v. Johnson, a traffic stop case, the Supreme Court noted that the risk of a violent encounter “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.”47
It is noteworthy that, in the past, it was sometimes argued that any officer-safety precaution was too closely associated with an arrest to be justified by anything less than probable cause. But, as the Seventh Circuit commented, that has changed, thanks to the swelling ranks of armed and violence-prone criminals:
[W]e have over the years witnessed a multifaceted expansion of Terry. For better or for worse, the trend has led to permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.48
Thus, officers may now employ any officer-safety precautions that were reasonably necessary under the circumstances—with emphasis on the word “reasonably.”49 The Ninth Circuit put it this way: “[W]e allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers.”50 Or in the words of the Fifth Circuit:
[P]ointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect—whether singly or in combination—do not automatically convert an investigatory detention into an arrest [unless] the police were unreasonable in failing to use less intrusive procedures to conduct their investigationsafely.51
With this in mind, we will now look at how the courts are evaluating the most common officer safety measures.
KEEP HANDS IN SIGHT
Commanding a detainee to keep his hands in sight is so minimally intrusive that it is something that officers may do as a matter of routine.52
OFFICER-SAFETY QUESTIONS
Officers may ask questions that are reasonably necessary to determine if, or to what extent, a detainee constitutes a threat— provided the questioning is brief and to the point. For example, officers may ask the detainee if he has any weapons or drugs in his possession,or if he is on probation or parole.53
CONTROLLING DETAINEES’ MOVEMENTS
For their safety (and also in order to carry out their investigation efficiently), officers may require the detainee to stand or sit in a particular place. Both objectives are covered in the section “Controlling the detainee’s movements,” beginning on page ten.
LIE ON THE GROUND
Ordering a detainee to lie on the ground is much more intrusive than merely ordering him to sit on the curb. Consequently, such a precaution cannot be conducted as a matter of routine but, instead, is permitted only if there was some justification for it.54
HANDCUFFING
Although handcuffing “minimizes the risk of harm to both officers and detainees,”57 it is not considered standard operating procedure.58 Instead, it is permitted only if there was reason to believe that physical restraint was warranted.59 In the words of the Court of Appeal:
[A] police officer may handcuff a detainee without converting the detention into an arrest if the handcuffing is brief and reasonably necessary under the circumstances.60
What circumstances tend to indicate that handcuffing was reasonably necessary? The following are examples:
Detainee refused to keep his hands in sight.61
Detainee kept reaching inside his clothing. 62
Detainee pulled away from officers.63
During a pat search, the detainee tensed up “as if he were attempting to remove his hand” from the officer’s grasp.64
Detainee appeared ready to flee.65
Detainee was hostile.66
Onlookers were hostile.67
Officers had reason to believe he was armed.68
Officers had reason to believe the detainee committed a felony, especially one involving violence or weapons.69
Officers were outnumbered.70
Detainee was transported to another location.71
Officers were awaiting victim’s arrival for a showup.72
First, if there was reason to believe that handcuffing was necessary, it is immaterial that officers had previously pat searched the detainee and did not detect a weapon. This is because a pat down “is not an infallible method of locating concealed weapons.”73
Second, in close cases it is relevant that the officers told the detainee that, despite the handcuffs, he was not under arrest and that the handcuffs were only a temporary measure for everyone’s safety.74
Third, even if handcuffing was necessary, it may convert a detention into a de facto arrest if the handcuffs were applied for an unreasonable length of time,75 or if they were applied more tightly than necessary. As the Seventh Circuit put it, “[A]n officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight or threat of injury.”76 Similarly, the Ninth Circuit observed that “no reasonable officer could believe that the abusive application of handcuffs was constitutional.”77
WARRANT CHECKS
Because wanted detainees necessarily pose an increased threat, officers may run warrant checks as a matter of routine. Officers who have detained a person (even a traffic violator) may run a warrant check and rap sheet if it does not measurably extend the length of the stop.156-157 This is because warrant checks further the public interest in apprehending wanted suspects,158 and because knowing whether detainees are wanted and knowing their criminal history helps enable officers to determine whether they present a heightened threat.159 As the Ninth Circuit put it:
On learning a suspect’s true name, the officer can run a background check to determine whether a suspect has an outstanding arrest warrant or a history of violent crime. This information could be as important to an officer’s safety as knowing that the suspect is carrying a weapon.160
While a detention may be invalidated if there was an unreasonable delay in obtaining warrant information, a delay should not cause problems if officers had reason to believe a warrant was outstanding, and they were just seeking confirmation.161
PROTECTIVE CAR SEARCHES
When a person is detained in or near his car, a gun or other weapon in the vehicle could be just as dangerous to the officers as a weapon in his waistband. Consequently, the United States Supreme Court ruled that officers may look for weapons inside the passenger compartment if they reasonably believed that a weapon— even a “legal” one—was located there.78
For example, in People v. Lafitte 79 Orange County sheriff’s deputies stopped Lafitte at about 10:15 P.M. because he was driving with a broken headlight. While one of the deputies was talking with him, the other shined a flashlight inside the passenger compartment and saw a knife on the open door of the glove box. The deputy then seized the knife and searched for more weapons. He found one—a handgun—in a trash bag hanging from the ashtray. Although the court described the knife as “legal,” and although Lafitte had been cooperative throughout the detention, the court ruled the search was justified because “the discovery of the weapon is the crucial fact which provides a reasonable basis for the officer’s suspicion.” Note that a protective vehicle search may be conducted even though the detainee had been handcuffed or was otherwise restrained.80
DETENTION AT GUNPOINT
Although a detention at gunpoint is a strong indication that the detainee was under arrest, the courts have consistently ruled that such a safety measure will not require probable cause if, (1) the precaution was reasonably necessary, and (2) the weapon was reholstered after it was safe to do so.81 Said the Fifth Circuit, “[I]n and of itself, the mere act of drawing or pointing a weapon during an investigatory detention does not cause it to exceed the permissible grounds of a Terry stop or to become a de facto arrest.”82 The Seventh Circuit put it this way:
Although we are troubled by the thought of allowing policemen to stop people at the point of a gun when probable cause to arrest is lacking, we are unwilling to hold that [a detention] is never lawful when it can be effectuated safely only in that manner. It is not nice to have a gun pointed at you by a policeman but it is worse to have a gun pointed at you by a criminal.83
For instance, in United States v. Watson a detainee argued that, even though the officers reasonably believed that he was selling firearms illegally, they “had no right to frighten him by pointing their guns at him.” The court responded, “The defendant’s case is weak; since the police had reasonable suspicion to think they were approaching an illegal seller of guns who had guns in the car, they were entitled for their own protection to approach as they did.”84
FELONY CAR STOPS
When officers utilize felony car stop procedures, they usually have probable cause to arrest one or more of the occupants of the vehicle. So they seldom need to worry about the intrusiveness of felony stops.
But the situation is different if officers have only reasonable suspicion. Specifically, they may employ felony stop measures only if they had direct or circumstantial evidence that one or more of the occupants presented a substantial threat of imminent violence. A good example of such a situation is found in the case of People v. Soun in which the California Court of Appeal ruled that Oakland police officers were justified in conducting a felony stop when they pulled over a car occupied by six people who were suspects in a robbery-murder. As the court pointed out:
[The officer] concluded that to attempt to stop the car by means suitable to a simple traffic infraction—in the prosecutor’s words, “just pull up alongside and flash your lights and ask them to pull over”—“would not be technically sound as far as my safety or safety of other officers.” We cannot fault [the officer] for this reasoning, or for proceeding as he did.85
Felony extraction procedures may also be used on all passengers in a vehicle at the conclusion of a pursuit, even though officers had no proof that the passengers were involved in the crime that prompted the driver to flee. For instance, in Allen v. City of Los Angeles, a passenger claimed that a felony stop was unlawful as to him “because he attempted to persuade [the driver] to pull over and stop.” That’s “irrelevant,” said the court, because the officers “couldnot have known the extent of[the passenger’s] involvement until after they questioned him.”86
UTILIZING TASERS
Officers may employ a taser against a detainee if the detainee “poses an immediate threat to the officer or a member of the public.”87 Having stopped the detainee, and having taken appropriate officer-safety precautions, officers will begin their investigation into the circumstances that generated reasonable suspicion. As we will now discuss, there are several things that officers may do to confirm or dispel their suspicions. Controlling the detainee’s movements Throughout the course of investigative detentions and traffic stops, officers may position the detainee and his companions or otherwise control their movements. While this is permitted as an officer-safety measure (as noted earlier), it is also justified by the officers’ need to conduct their investigation in an orderly fashion.88 As the Supreme Court explained, it would be unreasonable to expect officers “to allow people to come and go freely from the physical focal point of [a detention].”89
GET OUT, STAY INSIDE
If the detainee was the driver or passenger in a vehicle, officers may order him and any occupants who are not detained to step outside or remain inside.90 And if any occupants had already exited, officers may order them to return to the vehicle.91 In discussing the officer-safety rationale for ordering detainees to exit, the Supreme Court noted that “face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements.”92
STAY IN A CERTAIN PLACE
Officers may order the detainee and his companions to sit on the ground, on the curb, or other handy place; e.g., push bar.93
CONFINE IN PATROL CAR
A detainee may be confined in a patrol car if there was some reason for it.94 For example, it may be sufficient that the officers were awaiting the arrival of a witness for a show up;95 or waiting for an officer with experience in drug investigations;96 or when it was necessary to prolong the detention to confirm the detainee’s identity;97 or if the detainee was uncooperative;98 or if the officers needed to focus their attention on another matter, such as securing a crime scene or dealing with the detainee’s associates. 99
SEPARATING DETAINEES
If officers have detained two or more suspects, they may separate them to prevent the “mutual reinforcement” that may result when a suspect who has not yet been questioned is able to hear his accomplice’s story. 100
Separating detainees is also permitted for officer safety purposes. Thus, in People v. Maxwell the court noted that “upon effecting the early morning stop of a vehicle containing three occupants, the officer was faced with the prospect of interviewing the two passengers in an effort to establish the identity of the driver. His decision to separate them for his own protection, while closely observing the defendant as he rummaged through his pockets for identification, was amply justified.” 101
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