Footnotes: Investigative Detentions (Terry Stops)

1. Terry v. Ohio (1968) 392 U.S. 1, 16.

2. People v. Manis (1969) 268 Cal.App.2d 653, 665.

3. (1968) 392 U.S. 1.

4. See Florida v. Royer (1983) 460 U.S. 491, 498 [“Prior to Terry v. Ohio, any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause.”].

5. Terry v. Ohio (1968) 392 U.S. 1, 19-2

6. See People v.Hubbard (1970) 9 Cal.App.3d 827, 833[“[T]he violator is, during the period immediately preceding his execution of the promise to appear, under arrest.”]; People v. Hernandez (2008) 45 Cal.4th 295, 299 [traffic stops “are treated as detentions”].

7. Terry v. Ohio (1968) 392 U.S. 1, 9.

8. Terry v. Ohio (1968) 392 U.S. 1, 14, fn.11.

9. United States v. Cortez (1981) 449 U.S. 411, 417.

10. See Safford Unified School District v. Redding (2009) U.S. [2009 WL 1789472] [Reasonable suspicion “could as readily be described as a moderate chance of finding evidence of wrongdoing.”].

11. U.S. v. Fiasche (7th Cir. 2008) 520 F.3d 694, 697.

12. Alabama v. White (1990) 496 U.S. 325, 330. Edited.

13. People v. Manis (1969) 268 Cal.App.2d 653, 659.

14. People v. Celis (2004) 33 Cal.4th 667, 674. ALSO SEE Terry v. Ohio (1968) 392 U.S. 1, 21.

15. United States v. Sokolow (1989) 490 U.S. 1, 7.

16. People v. Souza (1994) 9 Cal.4th 224, 233.

17. Florida v. Royer (1983) 460 U.S. 491, 500; People v. Gentry (1992) 7 Cal.App.4th 1225, 1267.

18. (5th Cir. 1999) 178 F.3d 345, 348-9

19. Meredith v. Erath (9th Cir. 2003) 342 F.3d 1057, 1062.

20. People v. Soun (1995) 34 Cal.App.4th 1499, 1515.

21. See People v. Gorrostieta (1993) 19 Cal.App.4th 71, 83 [“When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.”].

22. (5th Cir. 1993) 993 F.2d 431, 436.

23. See People v. Harris (1975) 15 Cal.3d 384, 390 [“A detention of an individual which is reasonable at its inception may exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances.” Emphasis added.]; Ganwich v. Knapp (9th Cir. 2003) 319 F.3d 1115, 1125 [“The officers should have recognized that the manner in which they conducted the seizure was significantly more intrusive than was necessary”] U.S. v. Acosta-Colon (1st Cir. 1998) 157 F.3d 9, 17 [“This assessment requires a fact-specific inquiry into whether the measures used were reasonable in light of the circumstances that prompted the stop or that developed during its course.”]. NOTE: In the past, the Supreme Court suggested that a detention may be deemed a de facto arrest regardless of whether the officers’ actions were reasonably necessary. See, for example Florida v. Royer (1983) 460 U.S. 491, 499(plurality decision)[“Normaythepolice seek to verify their suspicions by means that approach the conditions of arrest.”].However, as we discuss later, even if officers handcuffed the suspect or detained him at gunpoint (both quintessential indications of an arrest), a de facto arrest will not result if the precaution was reasonably necessary.

24. See Florida v. Royer (1983) 460 U.S. 491, 506 [no “litmus-paper test”. . . for determining when a seizure exceeds the bounds of an investigative stop”]; People v. Celis(2004) 33 Cal.4th 667, 674 [“The distinction between a detention and an arrest may in some instances create difficult line-drawing problems.”].

25. (7th Cir. 1994) 19 F.3d 1221, 1224.

26. U.S. v. Acosta-Colon (1st Cir. 1998) 157 F.3d 9, 15.

27. See Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991 [“We look at the situation as a whole”].

28. U.S. v. Romain (1st Cir. 2004) 393 F.3d 63, 71.

29. United States v. Sharpe (1985), 470U.S.675, 685. ALSO SEE U.S.v.Ruidiaz (1st Cir.2008) 529F.3d25,29[“the requisite objective analysis must be performed in real-world terms . . . a practical, commonsense determination”].

30. See U.S. v. Ellis (6th Cir. 2007) 497 F.3d 606, 614 [the officer “was entitled to assess the circumstances and defendants in light of his experience as a police officer and his knowledge of drug courier activity”].

31. (1985) 470 U.S. 675, 687. ALSO SEE People v. Bell (1996) 43 Cal.App.4th 754, 761, fn.1 [“The Supreme Court has since repudiated any ‘least intrusive means’ test for commencing or conducting an investigative stop. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it.”]; Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 992 [“The Fourth Amendment does not mandate one and only one way for police to confirm the identity of a suspect. It requires that the government and its agents act reasonably.”].

32. See United States v. Place (1983) 462 U.S. 696, 709, fn.10 [Court notes the officers may need “to graduate their responses to the demands of any particular situation”]; U.S. v. Ruidiaz (1st Cir. 2008) 529 F.3d 25, 29 [A detention “is not necessarily a snapshot of events frozen in time and place. Often, such a stop can entail an ongoing process.”]; U.S. v. Christian (9th Cir. 2004) 356 F.3d 1103, 1106 [“police officers must be able to deal with the rapidly unfolding and often dangerous situations on city streets through an escalating set of flexible responses, graduated in relation to the amount of information they possess”].

33. (1st Cir. 1998) 136 F.3d 24, 27.

34. U.S. v. Tilmon (7th Cir. 1994) 19 F.3d 1221, 1226.

35. People v. Johnson (1991) 231 Cal.App.3d 1, 13.

36. (7th Cir. 1994) 19 F.3d 1221, 1226.

37. (1st Cir. 1988) 844 F.2d 898, 905.

38. See Graham v. Connor (1989) 490 U.S. 386, 396 [“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”]; Scott v. Harris (2007) 550 U.S. 372; People v. Brown (1985) 169 Cal.App.3d 159, 167 [“A police officer may use reasonable force to make an investigatory stop.”].

39. People v. Johnson (1991) 231 Cal.App.3d 1, 12.

40. (9th Cir. 1977) 558 F.2d 522, 524.

41. See Penal Code § 148(a)(1); People v. Johnson (1991) 231 Cal.App.3d 1, 13, fn. 2 [“Given their right to forcibly detain, California precedent arguably would have allowed the officers to arrest for flight which unlawfully delayed the performance of their duties.”]; People v. Allen (1980) 109 Cal.App.3d 981, 987 [“[Running and hiding] caused a delay in the performance of Officer Barton’s duty.”].

42. Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.

43. Michigan v. Long (1983) 463 U.S. 1032, 1052.

44. SeeTerryv.Ohio(1968)392U.S.1[robbery];Peoplev.Campbell(1981)118Cal.App.3d588,595[drug trafficking];U.S.v. $109, 179 (9th Cir. 2000) 228 F.3d 1080, 1084-85 [drug trafficking].

45. See Courson v. McMillian (11th Cir. 1991) 939 F.2d 1479, 1496.

46. See Terry v. Ohio (1968) 392 U.S. 1, 13 [detention may “take a different turn upon the injection of some unexpected element into the conversation”].

47. (2009) 129 S.Ct. 781, 787. ALSO SEE Maryland v. Wilson (1997) 519 U.S. 408, 414.

48. U.S. v. Vega (7th Cir. 1995) 72 F.3d 507, 515.

49. See Muehler v. Mena (2005) 544 U.S. 93, 99 [officers may “use reasonable force to effectuate the detention”]; People v. Rivera (1992) 8 Cal.App.4th 1000, 1008 [“physical restraint does not convert a detention into an arrest if the restraint is reasonable”]; U.S. v. Willis(9th Cir. 2005) 431 F.3d 709, 716 [“Our cases have justified the use of force in making a stop if it occurs under circumstances justifying fear for an officer’s personal safety.”].

50. U.S. v. Meza-Corrales (9th Cir. 1999) 183 F.3d 1116, 1123.

51. U.S. v. Sanders(5th Cir. 1993) 994 F.2d 200, 206-7.

52. See In re Frank V. (1991) 233 Cal.App.3d 1232, 1239; People v. Padilla (1982) 132 Cal.App.3d 555, 558.

53. See Peoplev.Castellon(1999)76Cal.App.4th1369,1377[“[The officer] asked two standard questions [Do you have any weapons? Do you have any narcotics?] in a short space of time, both relevant to officer safety.”]; People v.Brown (1998) 62 Cal.App.4th 493, 499[“questions about defendant’s probation status... merely provided the officer with additional pertinent information about the individual he had detained”]; Peoplev.McLean(1970) 6 Cal.App.3d 300, 307-8 [asking a detainee “if he had anything illegal in his pocket”isa“traditional investigatory function”];U.S.v.Long(8thCir.2008)532F.3d791,795 [OK to ask“whether a driver is carrying illegal drugs”].

54. See U.S. v. Taylor (9th Cir. 1983) 716 F.2d 701, 709 [detainee was “extremely verbally abusive” and “quite rowdy”]; U.S. v. Buffington (9th Cir. 1987) 815 F.2d 1292, 1300 [detainee “had been charged in the ambush slaying of a police officer and with attempted murder”]; U.S. v. Jacobs (9th Cir. 1983) 715 F.2d 1343, 1345 [ordering bank robbery suspects to “prone out” was justified]; Courson v. McMillian (11th Cir. 1991) 939 F.2d 1479, 1496 [detainees were “uncooperative” and intoxicated, one was “unruly and verbally abusive,” officer was alone, it was late at night]; U.S. v. Sanders (5th Cir. 1993) 994 F.2d 200, 207 [“[O]rdering a person whom the police reasonably believe to be armed to lie down may well be within the scope of an investigative detention.”].

55. See Terry v. Ohio (1968) 393 U.S. 1, 28; Pennsylvania v. Mimms (1977) 434 U.S. 106, 112.

56. See Michigan v. Long (1983) 463 U.S. 1032, 1049 [“the protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger” [emphasis added]]; Sibron v. New York (1968) 392 U.S. 40, 65 [purpose of pat search is “disarming a potentially dangerous man”]; People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 956 [pat search permitted if officers reasonably believe “that defendant is armed or on other factors creating a potential for danger to the officers.” Emphasis added]; People v. Hill(1974) 12 Cal.3d 731, 746 [pat search is permitted if officers reasonably believe a suspect “might forcibly resist an investigatory detention”]; U.S. v. Bell (6th Cir. 1985) 762 F.2d 495, 500, fn.7 [“The focus of judicial inquiry is whether the officer reasonably perceived the subject of a frisk as potentially dangerous, not whether he had an indication that the defendant was in fact armed.”].

57. Muehler v. Mena (2005) 544 U.S. 93, 100.

58. See Muehler v. Mena (2005) 544 U.S. 93, 99 [handcuffing “was undoubtedly a separate intrusion in addition to detention”]; In re Antonio B. (2008) 166 Cal.App.4th435, 442 [officer’s “‘policy’ of handcuffing any suspect he detains” was unlawful]; U.S. v. Meadows (1st Cir. 2009) 571 F.3d 131, 141 [“[P]olice officers may not use handcuffs as a matter or routine.”]. ALSO SEE U.S. v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289 [“handcuffing substantially aggravates the intrusiveness of an otherwise investigatory detention and is not part of a typical Terry stop.”].NOTE: One court has observed that“handcuffing—once problematic—is becoming quite acceptable in the context of Terry analysis.” U.S. v. Tilmon (7th Cir. 1994) 19 F.3d 1221, 1228.

59. See In re Carlos M. (1990) 220 Cal.App.3d 372, 385 [“The fact that a defendant is handcuffed while being detained does not, by itself, transform a detention into an arrest.”]; Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [“A brief, although complete, restriction of liberty, such as handcuffing, during a Terry stop is not a de facto arrest, if not excessive under the circumstances.”]; U.S. v. Acosta-Colon (1st Cir. 1998) 157 F.3d 9, 18 [“[O]fficers engaged in an otherwise lawful stop must be permitted to take measures—including the use of handcuffs—they believe reasonably necessary to protect themselves from harm, or to safeguard the security of others.”].

60. People v. Osborne (2009) 175 Cal.App.4th 1052, 1062.

61. See U.S. v. Dykes (D.C. Cir. 2005) 406 F.3d 717, 720 [“Dykes had kept his hands near his waistband, resisting both the officers’ commands and their physical efforts to remove his hands into plain view”].

62. See U.S. v. Thompson (9th Cir. 1979) 597 F.2d 187, 190.

63. See U.S. v. Purry (D.C. Cir. 1976) 545 F.2d 217, 219-20. People v. Johnson (1991) 231 Cal.App.3d 1, 14.

64. People v. Osborne (2009) 17 5 Cal.App.4th 1052, 1062.

65. See U.S.v.Bautista (9th Cir. 1982) 684F.2d 1286, 1289[detainee “kept pacing back and forth and looking,turning his head back and forth as if he was thinking about running”]. ALSO SEE People v. Brown (1985) 169 Cal.App.3d 159, 167 [detainee “started to run”]; U.S. v. Wilson (7th Cir. 1993) 2 F.3d 226, 232 [“very actively evading”]; U.S. v. Meadows (1st Cir. 2009) 571 F.3d 131, 142 [detainee “fled from a traffic stop”].

66. See Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [detainee “became belligerent”].

67. See U.S. v. Meza-Corrales (9th Cir. 1999) 183 F.3d 1116, 1123 [“uncooperative persons . . . and uncertainty prevailed”].

68. See U.S. v. Meadows (1st Cir. 2009) 571 F.3d 131, 142; U.S. v. Meza-Corrales (9th Cir. 1999) 183 F.3d 1116, 1123 [“weapons had been found (and more weapons potentially remained hidden)”].

69. See People v.Celis (2004)33 Cal.4th 667,676 [handcuffing“may be appropriate when the stop is of someone suspected of committing a felony”]; People v. Soun (1995) 34 Cal.App.4th 1499, 1517 [murder suspect]; People v. Brown (1985) 169 Cal.App.3d 159, 166 [bank robbery suspect]; U.S. v. Johnson (9th Cir. 2009) 581 F.3d 993 [bank robbers].

70. See U.S. v. Meza-Corrales (9th Cir. 1999) 183 F.3d 1116, 1123 [“A relatively small number of officers was present”].

71. See In re Carlos M.(1990) 220 Cal.App.3d 372, 385; Gallegos v. City of Los Angeles(9th Cir. 2002) 308 F.3d 987, 991.

72. See People v. Bowen(1987) 195 Cal.App.3d 269, 274 [handcuffing a purse snatch suspect while awaiting the victim’s arrival for a showup “does not mean that appellant was under arrest during this time”].

73. In re Carlos M. (1990) 220 Cal.App.3d 372, 385.

74. See U.S. v. Bravo (9th Cir. 2002) 295 F.3d 1002, 1011 [telling detainee that the handcuffs “were only temporary” was a factor that “helped negate the handcuffs’ aggravating influence and suggest mere detention, not arrest”].

75. See Muehler v. Mena (2005) 544 U.S. 93, 100; Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077.

76. tainback v. Dixon (7th Cir. 2009) 569 F.3d 767, 772. ALSO SEE Heitschmidt v. City of Houston (5th Cir. 1998) 161 F.3d 834, 83940 [“no justification for requiring Heitschmidt to remain painfully restrained”]; Burchett v. Kiefer (6th Cir. 2002) 310 F.3d 937, 944 [“applying handcuffs so tightly that the detainee’s hands become numb and turn blue certainly raises concerns of excessive force”].

77. Palmer v. Sanderson (9th Cir. 1993) 9 F.3d 1433, 1436.

78. See Michigan v. Long (1983) 463 U.S. 1032, 1049-51. NOTE: For a more thorough discussion of protective vehicle searches, see the article “Protective Car Searches” in the Winter 2008 edition.

79. (1989) 211 Cal.App.3d 1429.

80. See Michigan v. Long (1983) 463 U.S. 1032, 1051-52.

81. See People v. Glaser (1995) 11 Cal.4th 354, 366 [the issue is whether “detention at gunpoint [was] justified by the need of a reasonably prudent officer”]; People v. Celis (2004) 33 Cal.4th667, 676 [“Faced with two suspects, each of whom might flee if Detective Strain stopped one but not the other, it was not unreasonable for him to draw his gun to ensure that both suspects would stop.”];Peoplev.McHugh(2004)119Cal.App.4th202,211[“A police officer may use force, including...displaying his or her weapon, to accomplish another wise lawful stop or detention as long as the force used is reasonable under the circumstances to protect the officer or members of the public or to maintain the status quo.”]; Gallegos v. City of Los Angeles(9th Cir. 2002) 308 F.3d 987, 991 [“Our cases have made clear that an investigative detention does not automatically become an arrest when officers draw their guns.”].

82. U.S. v. Sanders (5th Cir. 1993) 994 F.2d 200, 205.

83. U.S. v. Serna-Barreto (7th Cir. 1988) 842 F.2d 965, 968.

84. (7th Cir. 2009) 558 F.3d 702, 704. Edited. ALSO SEE U.S. v. Vega (7th Cir. 1995) 72 F.3d 507, 515 [detention to investigate “massive cocaine importation conspiracy”].

85. (1995) 34 Cal.App.4th 1499, 1519. ALSO SEE People v. Celis (2004) 33 Cal.4th 667, 676 [detention for drug trafficking].

86. (9th Cir. 1995) 66 F.3d 1052, 1057.

87. See Bryan v. McPherson (9th Cir. 2009) 590 F.3d. 767, 775. NOTE: See the report on Bryan in the Recent Cases section.

88. See Arizona v. Johnson (2009) 129 S.Ct. 781; U.S. v. Williams (9th Cir. 2005) 419 F.3d 1029, 1034.

89. Brendlin v. California (2007) 551 U.S. 249, 250.

90. See Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn.6; Maryland v. Wilson (1997) 519 U.S. 408, 415.

91. See U.S. v. Williams (9th Cir. 2005) 419 F.3d 1029, 1032, 1033; U.S. v. Sanders (8th Cir. 2007) 510 F.3d 788, 790.

92. Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.

93. See People v. Celis (2004) 33 Cal.4th 667, 676; People v. Vibanco (2007) 151 Cal.App.4th 1, 12.

94. See People v. Natale (1978) 77 Cal.App.3d 568, 572; U.S. v. Stewart (7th Cir. 2004) 388 F.3d 1079, 1084.

95. People v. Craig (1978) 86 Cal.App.3d 905, 913 [“awaiting the victim”].

96. People v. Gorak (1987) 196 Cal.App.3d 1032, 1038 [“awaiting the arrival of another officer”].

97. See U.S. v. Jackson (7th Cir. 2004) 377 F.3d 715, 717; U.S. v. Rodriguez (7th Cir. 1987) 831 F.2d 162, 166.

98. Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [detainee “uncooperative and continued to yell”].

99. See People v. Lloyd (1992) 4 Cal.App.4th 724, 734.

100. See People v. Nation (1980) 26 Cal.3d 169, 180.

101. (1988) 206 Cal.App.3d 1004, 1010.

102. People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002. ALSO SEE People v. Long (1987) 189 Cal.App.3d 77, 89 [court notes the “law enforcement need to confirm identity”].

103. Hiibel v. Nevada (2004) 542 U.S. 177, 186.

104. See People v. Long (1987) 189 Cal.App.3d 77, 86; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002.

105. People v. Rios (1983) 140 Cal.App.3d 616, 621.

106. People v. Monroe (1993) 12 Cal.App.4th 1174, 1186. Also see People v. McKay (2002) 27 Cal.4th 601, 620.

107. See People v. Monroe (1993) 12 Cal.App.4th 1174, 1187.

108. See People v. McKay (2002) 27 Cal.4th 601, 622 [“[W]e do not intend to foreclose the exercise of discretion by the officer in the field in deciding whether to accept or reject other evidence—including oral evidence—of identification.”].

109. People v. Long (1987) 189 Cal.App.3d 77, 87. Edited. ALSO SEE U.S. v. Christian (9th Cir. 2004) 356 F.3d 1103, 1107 [“Narrowly circumscribing an officer’s ability to persist [in determining the detainee’s ID] until he obtains the identification of a suspect might deprive him of the ability to relocate the suspect in the future.”]; U.S. v. Martin (7th Cir. 2005) 422 F.3d 597, 602 [“Here, failure to produce a valid driver’s license necessitated additional questioning”].

110. See Penal Code § 148(a)(1); Hiibel v. Nevada (2004) 542 U.S. 177, 188.

111. See People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002.

112. See People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002; People v. Long (1987) 189 Cal.App.3d 77, 89.

113. See People v. Garcia (2007) 145 Cal.App.4th 782, 788.

114. See People v. Vermouth (1971) 20 Cal.App.3d 746, 752 [“When the driver was unable to produce the registration certificate and said the car belonged to someone else, it was reasonable and proper for the officers to look in the car for the certificate.”]; People v. Martin (1972) 23 Cal.App.3d 444, 447 [“When the driver was unable to produce a driver’s license and stated that he did not know where the registration certificate was located, since the automobile was owned by another person, the police officers were, under the circumstances, reasonably justified in searching the automobile for the registration certificate”]; People v. Turner (1994) 8 Cal.4th 137, 182 [“Here, the Chrysler was abandoned, and the person observed to have been a passenger disclaimed any knowledge, let alone ownership, of the vehicle.”]; People v. Webster (1991) 54 Cal.3d 411, 431 [the driver said that the car belonged to one of his passengers, but the passengers claimed they were hitchhikers].

115. See People v. Remiro (1979) 89 Cal.App.3d 809, 830; People v. Turner (1994) 8 Cal.4th 137, 182.

116. See People v. Hart (1999) 74 Cal.App.4th 479, 490.

117. See People v. Faddler (1982) 132 Cal.App.3d 607, 610.

118. U.S. v. Rice (10th Cir. 2007) 483 F.3d 1079, 1084. ALSO SEE People v. Vibanco (2007) 151 Cal.App.4th 1, 14; People v. Grant (1990) 217 Cal.App.3d 1451, 1461-62; U.S. v. Chaney (1st Cir. 2009) 584 F.3d 20, 26 [“the officer’s initial inquiries into Chaney’s identity took at most a minute or two and did not measurably extend the duration of the stop”]; U.S. v. Cloud (8th Cir. 2010) F.3d [2010 WL 547041] [“Cloud points to nothing in the record suggesting that he was compelled to give [the officer] his name”].

119. See United States v. Place (1983) 462 U.S. 696, 709, fn.10; People v. Gallardo (2005) 130 Cal.App.4th 234, 238.

120. Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, 242. ALSO SEE People v. Russell (2000) 81 Cal.App.4th 96, 102; People v. Huerta (1990) 218 Cal.App.3d 744, 751 [“The officers ‘were having to make decisions. We had a lot of things going on.”].

121. United States v. De Hernandez (1985) 473 U.S. 531, 543.

122. See Muehler v. Mena (2005) 544 U.S. 93, 100; People v. Gomez (2004) 117 Cal.App.4th 531, 537 [“a detention will be deemed unconstitutional when extended beyond what is reasonably necessary”]; People v. Russell (2000) 81 Cal.App.4th 96, 101 [“An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible.”]; U.S. v. Torres-Sanchez (9th Cir. 1996) 83 F.3d 1123, 1129 [“‘Brevity’ can only be defined in the context of each particular case.”]

123. United States v. Sharpe (1985) 470 U.S. 675, 686.

124. (1982) 129 Cal.App.3d 188, 196. ALSO SEE People v. Soun (1995) 34 Cal.App.4th 1499, 1520 [officer “full accounted” for the 30-minute detention].

125. (9th Cir. 2002) 308 F.3d 987, 992. Edited.

126. U.S. v. Hernandez (11th Cir. 2005) 418 F.3d 1206, 1212, fn.7.

127. See Johnson v. Arizona (2009) U.S. [2009 WL 160434].

128. Courson v. McMillian (11th Cir. 1991) 939 F.2d 1479, 1493 [detention by single officer of three suspects, one of whom was unruly].

129. See United States v. Sharpe (1985) 470 U.S. 675, 687, fn.5 [“[A]s a highway patrolman, he lacked Cooke’s training and experience in dealing with narcotics investigations.”]; People v. Gorak (1987) 196 Cal.App.3d 1032, 1038 [inexperienced officer awaited arrival of officer with experience in DUI-drugs].

130. See People v. Avalos (1996) 47 Cal.App.4th 1569, 1577; U.S. v. Rivera (8th Cir. 2009) 570 F.3d 1009, 1013.

131. See U.S. v. Bloomfield (8th Cir. 1994) 40 F.3d 910, 917.

132. See People v. Grant (1990) 217 Cal.App.3d 1451, 1459; U.S. v. Ellis (6th Cir. 2007) 497 F.3d 606, 614; U.S. v. $109,179 (9th Cir. 2000) 228 F.3d 1080, 1086; U.S. v. Long (7th Cir. 2005) 422 F.3d 597, 602.

133. See U.S. v. Brigham (5th Cir. 2004) 382 F.3d 500, 508 [OK to “verify the information provided by the driver”].

134. See U.S. v. Rutherford (10th Cir. 1987) 824 F.2d 831, 834.

135. See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1228; U.S. v. Ellis (6th Cir. 2007) 497 F.3d 606, 614.

136. See People v. Bowen (1987) 195 Cal.App.3d 269, 273-74.

137. See People v. Soun (1995) 34 Cal.App.4th 1499 [six detainees]; U.S. v. Shareef (10th Cir. 1996) 100 F.3d 1491, 1506.

138. See Muehler v. Mena (2005) 544 U.S. 93, 100 [“[T]his case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons.”]; People v. Castellon (1999) 76 Cal.App.4th 1369, 1374 [“At the point where Castellon failed to follow [the officer’s] order to remain in the car and [the officer] became concerned for his safety, the . . . focus shifted from a routine investigation of a Vehicle Code violation to officer safety.”].

139. (1995) 34 Cal.App.4th 1499, 1524.

140. See United States v. Montoya De Hernandez (1985) 473 U.S. 531, 543 [“Our prior cases have refused to charge police with delays in investigatory detention attributable to the suspect’s evasive actions.”]; People v. Allen (1980) 109 Cal.App.3d 981, 987 [“The actions of appellant (running and hiding) caused a delay”]; People v. Williams (2007) 156 Cal.App.4th 949, 960 [“The detention was necessarily prolonged because of the remote location of the marijuana grow.”]; U.S. v. Shareef (10th Cir. 1996) 100 F.3d 1491, 1501 [“When a defendant’s own conduct contributes to a delay, he or she may not complain that the resulting delay is unreasonable.”].

141. (1985) 470 U.S. 675, 687-88.

142. (8th Cir. 2009) 569 F.3d 867, 872. ALSO SEE U.S. v. Sullivan (4th Cir. 1998) 138 F.3d 126, 132-33; People v. Huerta (1990) 218 Cal.App.3d 744, 751 [delay resulted from detainee’s lying to officers].

143. (1969) 268 Cal.App.2d 653, 665. ALSO SEE Hiibel v. Nevada (2004) 542 U.S. 177, 185 [“Asking questions is an essential part of police investigations.”]; Berkemer v. McCarty (1984) 468 U.S. 420, 439 [“Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.”]; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002 [“Inquiries of the suspect’s identity, address and his reason for being in the area are usually the first questions to be asked”].

144. (9th Cir. 2003) 319 F.3d 1115, 1120. ALSO SEE U.S. v. $404,905 (8th Cir. 1999) 182 F.3d 643, 647, fn.2 [the detainee “may not be compelled to answer, and may not be arrested for refusing to answer”].

145. See People v. Clair (1992) 2 Cal.4th 629, 679 [“Generally, however, [custody] does not include a temporary detention for investigation.”]; People v. Farnam (2002) 28 Cal.4th 107, 1041 [“the term ‘custody’ generally does not include a temporary detention”]; U.S. v. Booth (9th Cir. 1981) 669 F.2d 1231, 1237 [“We have consistently held that even though one’s freedom of action may be inhibited to some degree during an investigatory detention, Miranda warnings need not be given prior to questioning since the restraint is not custodial.”].

146. Berkemer v. McCarty (1984) 468 U.S. 420, 440.

147. People v. Manis (1969) 268 Cal.App.2d 653, 669.

148. (1984) 468 U.S. 420, 440.

149. See New York v. Quarles (1984) 467 U.S. 649, 655; Dunaway v. New York (1979) 442 U.S. 200, 215; People v. Pilster (2006) 138 Cal.App.4th 1395, 1405 [handcuffing “is a distinguishing feature of a formal arrest”].

150. People v. Pilster (2006) 138 Cal.App.4th 1395, 1406.

151. See U.S. v. Cervantes-Flores (9th Cir. 2005) 421 F.3d 825, 830.

152. (1986) 178 Cal.App.3d 217, 230. ALSO SEE People v. Clair (1992) 2 Cal.4th 629, 679; Cruz v. Miller (2nd Cir. 2001) 255 F.3d 77.

153. See, for example, Muehler v. Mena (2005) 544 U.S. 93, 101; People v. Bell (1996) 43 Cal.App.4th 754, 767.

154. (2009) 129 S.Ct. 781, 788. Edited. ALSO SEE Muehler v. Mena (2005) 544 U.S. 93, 101 [“We have held repeatedly that mere police questioning does not constitute a seizure.”]; U.S. v. Rivera (8th Cir. 2009) 570 F.3d 1009, 1013 [applies “measurably extend” test]; U.S. v. Chaney (1st Cir. 2009) 584 F.3d 20, 24 [applies “measurably extend” test]; U.S. v. Taylor (7th Cir. 2010) F.3d [2010 WL 522831] [“They asked him a few questions, some of which were unrelated to the traffic stop, but that does not transform the stop into an unreasonable seizure.”]. NOTE: Prior to Johnson, some courts ruled that off-topic questioning was permissible if it did not significantly extend the duration of the stop. See, for example, U.S. v. Alcaraz-Arellano (10th Cir. 2006) 441 F.3d 1252, 1259; U.S. v. Turvin (9th Cir. 2008) 517 F.3d 1097, 1102; U.S. v. Stewart (10th Cir. 2007) 473 F.3d 1265, 1269; U.S. v. Chhien (1st Cir. 2001) 266 F.3d 1, 9 [“[The officer] did not stray far afield”]; U.S. v. Purcell (11th Cir. 2001) 236 F.3d 1274, 1279 [delay of three minutes was de minimis]; U.S. v. Sullivan (4th Cir. 1998) 138 F.3d 126, 133 [“brief one-minute dialogue” was insignificant]; U.S. v. Martin (7th Cir. 2005) 422 F.3d 597, 601-2 [off-topic questions are permitted if they “do not unreasonably extend” the stop]; U.S. v. Long (8th Cir. 2008) 532 F.3d 791, 795 [“Asking an off-topic question, such as whether a driver is carrying illegal drugs, during an otherwise lawful traffic stop does not violate the Fourth Amendment.”]. COMPARE U.S. v. Peralez (8th Cir. 2008) 526 F.3d 1115, 1121 [“The off-topic questions more than doubled the time Peralez was detained.”]

155. (7th Cir. 2002) 277 F.3d 947, 954.

156. NOTE: The California Supreme Court’s opinion in People v. McGaughran (1979) 25 Cal.3d 577 has been widely interpreted as imposing strict time requirements on traffic stops. Not only would such an interpretation be contrary to the U.S. Supreme Court’s “measurably extend” test (Arizona v. Johnson (2009) U.S. ), the Court of Appeal recently ruled that McGaughran was abrogated by Proposition 8. People v. Branner (2009) Cal.App.4th [2009 WL 4858105].

157. See People v. Stoffle (1991) 1 Cal.App.4th 1671, 1679; U.S. v. Nichols (6th Cir. 2008) 512 F.3d 789, 796.

158. See U.S. v. Hensley (1985) 469 U.S. 221, 229; U.S. v. Villagrana-Flores (10th Cir. 2006) 467 F.3d 1269, 1277.

159. See Hiibel v. Nevada (2004) 542 U.S. 177, 186; U.S. v. Holt (10th Cir. 2001) 264 F.3d 1215, 1221-22.

160. U.S. v. Christian (9th Cir. 2004) 356 F.3d 1103, 1107.

161. See Carpio v. Superior Court (1971) 19 Cal.App.3d 790, 792.

162. See People v. Kilpatrick (1980) 105 Cal.App.3d 401, 412.

163. See People v. Irvin (1968) 264 Cal.App.2d 747, 759; People v. Dampier (1984) 159 Cal.App.3d 709, 712-13.

164. (1990) 220 Cal.App.3d 372, 387.

165. People v. Nash (1982) 129 Cal.App.3d 513, 518. ALSO SEE People v. Craig (1978) 86 Cal.App.3d 905, 914.

166. (1977) 70 Cal.App.3d 73, 85.

167. (1987) 195 Cal.App.3d 269.

168. See People v. Yeoman (2003) 31 Cal.4th 93, 125 [“Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.”]; People v. Phan (1993) 14 Cal.App.4th 1453, 1461, fn.5 [“Even one-person showups are not inherently unfair.”].

169. See Kaupp v. Texas (2003) 538 U.S. 626, 630 [“Such involuntary transport to a police station for questioning is sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause.”]; Hayes v. Florida (1985) 470 U.S. 811, 815 [“[T]ransportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.”]; People v. Harris (1975) 15 Cal.3d 384, 391 [insufficient justification for transporting the detainee to the crime scene]; U.S. v. Parr (9th Cir. 1988) 843 F.2d 1228, 1231 [“[A] distinction between investigatory stops and arrests may be drawn at the point of transporting the defendant to the police station

170. See In re Gilbert R. (1994) 25 Cal.App.4th 1121, 1225; Ford v. Superior Court (2001) 91 Cal.App.4th 112, 125. COMPARE People v. Campbell (1981) 118 Cal.App.3d 588, 596 [court rejects the argument that “a person who is handcuffed and asked to accompany an officer, freely consents to do so”]; U.S. v. Shaw (6th Cir. 2006) 464 F.3d 615, 622 [“Although he did not express any resistance to going with SA Ford, neither was he given the option of choosing not to go.”].

171. See People v. Daugherty (1996) 50 Cal.App.4th 275, 287 [detention at airport, OK to walk the detainee 60 yards to the police office for canine sniff of luggage]; U.S. v. Holzman (9th Cir. 1989) 871 F.2d 1496, 1502 [“the movement of Holzman from the open floor to the more private counter area” is “not the sort of transporting that has been found overly intrusive”]; Pliska v. City of Stevens Point (7th Cir. 1987) 823 F.2d 1168, 1176 [“The mere fact that [the officer] drove the squad car a short distance does not necessarily convert the stop into an arrest.”]; U.S. v. Bravo (9th Cir. 2002) 295 F.3d 1002, 1011 [30-40 yard walk to border patrol security office]; U.S. v. $109,179 (9th Cir. 2000) 228 F.3d 1080, 1085 [“only a short distance down the hall”]. COMPARE In re Dung T. (1984) 160 Cal.App.3d 697, 714 [“the police simply ‘loaded up the occupants, put them in police cars, transported them to the police facility”].

172. People v. Harris (1975) 15 Cal.3d 384, 391.

173. U.S. v. Charley (9th Cir. 2005) 396 F.3d 1074, 1080.

174. See People v. Courtney (1970) 11 Cal.App.3d 1185, 1192. ALSO SEE Florida v. Royer (1983) 460 U.S. 491, 504 [“[T]here are undoubtedly reasons of safety or security that would justify moving a suspect from one location to another during an investigatory detention, such as from an airport concourse to a more private area.”].

175. See In re Carlos M. (1990) 220 Cal.App.3d 372, 382 [permissible to transport a rape suspect to a hospital for a showup because the victim was undergoing a “rape-victim examination” which officers believed would take about two hours]; People v. Gatch (1976) 56 Cal.App.3d 505, 510 [“this case is one in which it was less of an intrusion to convey the defendant speedily a short distance to the crime scene” for a showup]; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 [transport a half block away OK when “the victim is injured and physically unable to be taken promptly to view the suspects”]; U.S. v. Charley (9th Cir. 2005) 396 F.3d 1074, 1080 [“[W]e have held that the police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention given the specific circumstances of the case.”]; U.S. v. Meadows (1st Cir. 2009) 571 F.3d 131, 143 [person detained inside his house could be transported outside because of “the threat of enclosed spaces and secret compartments to officers who are legitimately in a home and are effecting a [detention]”].

176. (1975) 15 Cal.3d 384, 391.

177. (1995) 34 Cal.App.4th 1499.

178. (1st Cir. 1998) 157 F.3d 9, 17.

179. See Florida v. Jimeno (1991) 500 U.S. 248, 250-1; United States. v. Drayton (2002) 536 U.S. 194, 207 [“In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent.”].

180. See People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [grounds to continue the detention is not required before seeking consent]; U.S. v. Canipe (6th Cir. 2009) 569 F.3d 597, 602 [“When Canipe signed the citation and [the officer] returned his information, thereby concluding the initial purpose of the stop, Canipe neither refused [the officer’s] immediate request for permission to search the truck nor asked to leave.”].

181. (1991) 501 U.S. 429, 434.

182. See People v. Lingo (1970) 3 Cal.App.3d 661, 663-64.

183. See People v. Harness (1983) 139 Cal.App.3d 226, 233.

184. Hayes v. Florida (1985) 470 U.S. 811, 817. ALSO SEE Davis v. Mississippi (1969) 394 U.S. 721, 727-28; Virgle v. Superior Court (2002) 100 Cal.App.4th 572.

185. See People v. Marquez (1992) 1 Cal.4th 553, 578 [in detaining a person who resembled the composite drawing of a murder suspect, there was “no impropriety in . . . asking defendant for his permission to be photographed.”].

186. See People v. Thierry (1998) 64 Cal.App.4th 176, 184 [“[The officers] merely used the occasion of appellant’s arrest for that crime to take a photograph they would have been entitled to take on the street or elsewhere without an arrest.”].

187. See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199; People v. Grace (1973) 32 Cal.App.3d 447, 451 [“[The officer’s] right to detain the driver ceased as soon as he discovered the brakelight was operative and not in violation of statute.”]; People v. Bello (1975) 45 Cal.App.3d 970, 973 [after the officer determined that the detainee was not under the influence “he had no legitimate reason for detaining him further”]; U.S. v. Pena-Montes (10th Cir. 2009) F.3d [2009 WL 4547058] [the “investigation was complete when [the officer] saw that the vehicle actually had a plate”].

188. U.S. v. Watts (8th Cir. 1993) 7 F.3d 122, 126.

189. See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199 [in a routine traffic stop, the violator must be released “forthwith” when he gives “his written promise that he will appear as directed.”].

190. See Florida v. Royer (1983) 460 U.S. 491 504 [“[B]y returning his ticket and driver’s license, and informing him that he was free to go if he so desired, the officers might have obviated any claim that the encounter was anything but a consensual matter from start to finish.”]; U.S. v. Holt (10th Cir. 2000) 229 F.3d 931, 936, fn.5; U.S. v. Munoz (8th Cir. 2010) F3 [2010 WL 99076] [“Munoz was no longer seized once [the officer] handed him the citation and rental agreement [and] merely requested further cooperation”].

191. U.S. v. Sandoval (10th Cir. 1994) 29 F.3d 537, 540.

192. See Ohio v. Robinette (1996) 519 U.S. 33, 40 [Court rejects as “unrealistic” a requirement that officers “always inform detainees that they are free to go before a consent search may be deemed voluntary.”]; U.S v. Mendenhall (1980) 446 U.S. 544, 555 [“Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed.”]; U.S. v. Anderson (10th Cir. 1997) 114 F.3d 1059, 1064; U.S. v. Sullivan (4th Cir. 1998) 138 F.3d 126, 132.

193. See Berkemer v. McCarty (1984) 468 U.S. 420, 436 [“Certainly few motorists would feel free [to] leave the scene of a traffic stop without being told they might do so.”].

194. (1986) 183 Cal.App.3d 849, 877.

195. See People v. Spicer (1984) 157 Cal.App.3d 213, 220; U.S. v. Thompson (7th Cir. 1997) 106 F.3d 794, 798.